text:
    (No. 52167.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KENNETH J. RICHARDS, Appellee.

      Opinion filed September 15, 1980.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, Paul C. Gridelli and Wesley H. H. Ching, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John McNamara, Assistant Public Defender, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County Kenneth Richards, on December 14, 1976, was found guilty of aggravated battery for the beating and stabbing of Denise Richards, his sister-in-law, and was sentenced to a term of 2 to 10 years. The defendant appealed, and among the several issues he raised was the claim that his right to a speedy trial was violated when the State failed to bring him to trial within 120 days as provided in section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103 — 5(a)). The appellate court reversed the conviction on the ground that the trial court had abused discretion by twice extending the trial date beyond the statutory term of 120 days. (71 Ill. App. 3d 581.) We granted the People’s petition for leave to appeal. 73 Ill. 2d R. 315.

The record shows that the charged crimes took place at the home of the defendant’s sister-in-law on December 18, 1975. He was arrested two days later and confined in the Cook County jail until May of 1976, when he posted bond. On June 3, when the defendant failed to appear at a scheduled court proceeding, his bond was forfeited and a warrant for his arrest was issued. He was again taken into custody on July 24. Between July 24 and December 8, when the defendant was brought to trial, the court granted four continuances. Two were on the prosecutor’s motions, one on September 8 and the other on October 13, and the other two were entered on the court’s motion. None of the delays during this period were attributable to the defendant. The case had been set for trial on November 17, but on November 4 the People moved for an immediate trial or, in the alternative, for a continuance beyond the 120-day term which would expire on November 19. The ground was that Denise Richards, the complaining witness, would be unable to attend the trial on November 17 because she was to take part in a two-week job-training session in Wisconsin. The session would commence on November 7 and would be followed by a two-week orientation program in River Forest. The prosecutor also informed the court that both sides were ready for trial that day should the court deny the motion for a continuance. The court at first refused a continuance, but reconsidered when the witness stated that she would lose her job if compelled to attend the trial on November 17. The court then allowed the motion and continued the case to December 7 over the defendant’s objection and demand for trial.

When the case was called on the morning of December 7 Mrs. Richards failed to appear, and though both sides stated their readiness to proceed to trial despite her absence the case was held over by the court to the following morning. The witness arrived that afternoon, i.e., on December 7, claiming that car failure had delayed her. The trial began on December 8 and ended on December 14, when the jury returned a verdict of guilty.

The prosecution had vexing difficulties in securing the cooperation of the victim. Denise Richards, at the preliminary hearing in February 1976, testified that the defendant had punched her, stabbed her in the back and forearm with a knife, and kicked her when she fell to the floor. At trial she professed to have no memory of the events of the day on which the crimes were committed, save that the defendant had visited her apartment. When she testified, too, that she had no memory of her testimony at the preliminary hearing, the court made her a court’s witness on the prosecutor’s motion.

The question for us is whether the trial court abused discretion in allowing the People’s motion for a continuance, which resulted in the defendant’s trial being delayed beyond the 120-day term. The allowance of a motion of the prosecution for an extension of the 120-day period is a matter within the discretion of the trial court and in the absence of a clear abuse of discretion its determination will not be disturbed. People v. Arndt (1972), 50 Ill. 2d 390, 393.

The statute on which the trial court based its allowance of the People’s motion for continuance provides:

“If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later date the court may continue the cause on application of the State for not more than an additional 60 days.” (Ill. Rev. Stat. 1975, ch. 38, par. 103-5(c).)

The People argue that the totality of circumstances does not warrant a conclusion that the trial court abused its discretion. Citing People v. Robinson (1976), 44 Ill. App. 3d 447, they contend that the defendant had no statutory or other right to be tried before the 120-day term expired, that is, he had no right to have gone to trial on November 4, which was more than two weeks before the statutory period would have run. They further argue that the prosecution diligently moved for a continuance when it learned that the witness would be out of town on November 17, the date for trial, and that had it waited until Mrs. Richards had already left for Wisconsin she clearly would have been unavailable for purposes of testifying and under the statute a continuance beyond the term would have been proper.

The right to a speedy trial found in the constitutions of the United States (U.S. Const., amend. VI) and of Illinois (Ill. Const. 1970, art. I, sec. 8) is implemented through section 103 — 5 (a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a)). Subsection (a) in part provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.”

If an accused who is in custody is brought to trial before the expiration of the 120-day term he is ordinarily precluded from raising on appeal the issue of his constitutional right to a speedy trial. (People v. Nowak (1970), 45 Ill. 2d 158; People v. Baskin (1967), 38 Ill. 2d 141.) And though the statutory period is not coextensive with this right (People v. Arndt (1972), 50 Ill. 2d 390; People v. Love (1968), 39 Ill. 2d 436), if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to a dismissal of the charges (People v. Love (1968), 39 Ill. 2d 436; People v. Wyatt (1962), 24 Ill. 2d 151; see also Strunk v. United States (1973), 412 U.S. 434, 37 L. Ed. 2d 56, 93 S. Ct. 2260; Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182).

Though this court has also held that the statute implements the constitutional assurance of a speedy trial and must be liberally construed (People v. Fosdick (1967), 36 Ill. 2d 524, 528), the question of whether a defendant’s right to a speedy trial has been violated depends upon the surrounding circumstances of each case (People v. Beyah (1977), 67 Ill. 2d 423; People v. Love (1968), 39 Ill. 2d 436). We have found no decisions with circumstances closely similar to those here. In other decisions where the trial date was extended beyond the term, the witness was unavailable at the time the continuance was requested and was not present in the court as here. See, e.g., People v. Arndt (1972), 50 Ill. 2d 390; People v. Robinson (1976), 44 Ill. App. 3d 447 ; People v. Stephenson (1973), 12 Ill. App. 3d 201; People v. Knox (1968), 94 Ill. App. 2d 36.

Considering all the circumstances, we must hold that in granting the continuance on November 4 beyond the statutory limit of 120 days the rights of the defendant under the statute were violated. The witness was available for trial on November 4, 5 and 6, and both sides declared their readiness to begin trial when the motion was called on November 4. The record also shows that the People gave notice on October 26 that they were going to move for a continuance on November 4, 9 days before the motion was to be heard. Had the prosecution scheduled the hearing of the motion for an earlier date it would have allowed the trial court more time and greater freedom of action in commencing trial. The People suggest that there may have been another case before the trial court on November 4 for which a jury had been selected. But it is not clear from the record that there was a trial to begin that day. The court, in granting the motion for the continuance, did not state it was on trial or preparing to go to trial on another case. In any event, it is clear that the defendant was objecting to a continuance and that the record does not show that the trial court sought to have the case transferred to another judge. The controlling factor here was the statutory guaranty to the defendant that he would be given trial within 120 days. The trial court abused discretion in subordinating his right to trial to the convenience of the witness, the circumstances which complicated bringing him to trial within the term. We do not say that under all circumstances a People’s motion for an extension beyond the 120-day period should be denied if the witness is in court when the motion is made. We say only that under the unusual circumstances here the court should not have granted the extension beyond the 120-day period.

In view of our holding we need not consider what otherwise might have been the legal consequence of the court’s holding over the case to December 8 because of the tardiness, whether innocent or calculated, of the witness Richards.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE RYAN

license: Public Domain

text:
    (No. 52747.
    PEORIA SAVINGS AND LOAN ASSOCIATION, Appellee, v. JEFFERSON TRUST AND SAVINGS BANK OF PEORIA, Appellant.

      Opinion filed, September 15, 1980.

      Davis & Morgan, of Peoria (Stephen D. Gay and Donan C. Kirley, of counsel), for appellant.
    John P. Ewart and Gregory C. Ray, of Craig & Craig, of Mattoon, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendant, Jefferson Trust and Savings Bank of Peoria (Jefferson), appeals a judgment entered in the circuit court of Peoria County for the plaintiff, Peoria Savings and Loan Association (Peoria Savings). The appellate court affirmed the judgment and we granted leave to appeal. Broadly stated, the issue is whether Jefferson became a holder in due course of a $70,000 check drawn by Peoria Savings under section 3 — 303(b) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 303(b)) (taking an instrument in payment of an antecedent claim).

On January 30, 1975, Owen D. Cassidy, a Peoria businessman, maintained two accounts with Jefferson. One was a personal account in the name of “Owen D. Cassidy”; the other was an account in the name of “Cassidy Company. ”

On January 30, 1975, Cassidy deposited a check for $70,000 in his personal account with Jefferson and was given provisional credit for that amount. The check, designating Cassidy as payee, was drawn on a Cassidy Company account at the Harris Trust and Savings Bank in Chicago (the Harris check). Between January 30, 1975, and February 5, 1975, $61,039.30 was withdrawn against the provisional credit given to the Cassidy account for the Harris check, leaving in his account at Jefferson on February 5, 1975, only $8,960.78.

On the morning of February 5, 1975, a Jefferson return teller received a telephone call from the Continental Illinois Bank and Trust Company of Chicago, which was Jefferson’s intermediary bank in that city, advising that the Harris check for $70,000 had been dishonored for insufficient funds and was being returned. The Jefferson account at the Continental Bank was charged $70,000 for the dishonor. The teller informed Ned Middendorf, a vice-president of Jefferson, of the dishonor. At approximately 3 p.m. Middendorf informed Cassidy by telephone of the dishonor and advised him that the overdraft would have to be covered that day. Cassidy replied that he would take care of it.

Approximately one-half hour after receiving the demand from Jefferson, Cassidy arrived at Peoria Savings. He informed Barbara Horn, the savings manager, that he desired to open a $10,000 savings account with Peoria Savings. She took Cassidy to meet with the president of Peoria Savings to discuss interest rates. Within a few minutes Cassidy returned to Mrs. Horn and gave her an $80,000 check payable to Cassidy drawn on a Cassidy Company account at the Northern Trust Company of Chicago (the Northern Trust check). Without verifying the check, Mrs. Horn used $10,000 of the check to open a savings account in Cassidy’s name, and gave him a check for $70,000 to cover the difference (the Peoria Savings check). This check was payable to Cassidy and was drawn upon a checking account Peoria Savings maintained at Jefferson. This check was given to Cassidy at approximately 4 p.m.

The buildings housing Peoria Savings and Jefferson were adjacent to each other. At the trial, Middendorf testified he returned to his desk at approximately 4 p.m. after a short absence and discovered the Peoria Saving’s check, which had been endorsed by Cassidy, laying on his desk. It was accompanied by a deposit ticket for Cassidy’s personal account, the same account in which the dishonored $70,000 Harris check had been deposited.

Middendorf delivered the $70,000 check and deposit ticket to a teller, but before the teller processed the check, he retrieved both documents. Next, Middendorf called Jim Berry, a vice-president at Peoria Savings, and inquired as to the circumstances of the $70,000 Peoria Savings check and if Berry was familiar with transactions involving Cassidy and large checks. Middendorf testified that during prior business relationships Cassidy had mentioned transferring substantial deposits from Chicago banks to Jefferson and that the Peoria Savings check caused him to wonder if the large funds promised to Jefferson had been deposited with Peoria Savings. Berry stated that he knew nothing about the matter, but would inquire and call Middendorf back. After his conversation with Middendorf, Berry talked to Mrs. Horn and learned of the transaction involving Peoria Savings and Cassidy. He then requested that she call the Northern Trust to verify the Cassidy Company account. Mrs. Horn telephoned Northern Trust and was advised that the Cassidy Company account contained sufficient funds to cover an $80,000 check. Horn relayed this information to Berry, and they discussed the matter with Peoria Savings’ president, Mr. McFarland. He directed Mrs. Horn to call Northern Trust and request that they place a hold on the funds necessary to pay the $80,000 check. When Mrs. Horn made her request to the Northern Trust she was informed that there were sufficient funds to cover an $8,000 check but not an $80,000 check and that the Northern Trust employee had misunderstood her on the first call. At trial it was established that the balance in the Cassidy Company account at Northern Trust was $8,700.80 on February 5, 1975.

Mrs. Horn related this information to Berry and McFarland. At approximately 4:30 or 4:40 p.m., Berry walked over to the Jefferson and informed Middendorf that Peoria Savings had been advised by Northern Trust that there were insufficient funds to cover the $80,000 drawn on Northern Trust. Middendorf was advised that the $80,000 Northern check was the consideration for Peoria Savings issuing its $70,000 check to Cassidy. There is a dispute as to whether Berry placed a verbal stop order on the Peoria Savings check at this time; however, Middendorf testified he told Berry a written stop order would be prepared and ready for Berry’s signature the next morning. After Berry left Jefferson, Middendorf placed the $70,000 Peoria Savings check and the accompanying deposit ticket in the bank vault.

The next morning, February 6, Berry arrived at Middendorf’s office about 10 a.m. and signed the stop order that Middendorf had prepared. Middendorf still had the Peoria Savings check and the deposit slip in his possession; they were unprocessed. Later that day he turned them over to George Kirkpatrick, a senior vice-president at Jefferson, who retained possession of the documents. At approximately 4 p.m. on February 7, Kirkpatrick took the Peoria Savings check and deposit slip to the Jefferson proof department, the documents were processed, and Cassidy’s account was credited $70,000. Kirkpatrick testified that he did not present the written stop-payment order to the proof department with the check and deposit ticket because Jefferson considered it to be a wrongful order. Consequently, on February 10, the Peoria Savings account at Jefferson was debited $70,000 and Kirkpatrick testified the debit was a setoff for what was considered to be a wrongful stop-payment order. Peoria Savings was notified of the debit on February 11.

Subsequently, as a result of various transactions involving Cassidy’s personal and business accounts with Jefferson, the business account was closed, and on March 19, 1975, $13,133.08, the balance remaining in the personal account, was credited to the Peoria Savings account.

On February 4, 1976, Peoria Savings brought this action against Jefferson to recover the amount of $56,866.92, the difference between the $70,000 check and the $13,133.08 credit given to Peoria Savings by Jefferson. On November 3, 1978, after a bench trial, the trial court entered judgment for Peoria Savings for $56,866.92. Jefferson appealed, and the appellate court affirmed the judgment of the trial court. 76 Ill. App. 3d 915.

Jefferson argues that it became a holder in due course as soon as Cassidy placed the Peoria Savings check on Middendorf’s desk at 4 p.m. on February 5, 1975, and that, as a result, Jefferson took the check free from all defenses except those real defenses enumerated in section 3 — 305(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 305(2)). We agree.

This case is controlled by the Uniform Commercial Code, which has been adopted in Illinois. (Ill. Rev. Stat. 1975, ch. 26, par. 1 — 101 et seq.) Section 3 — 302(1) (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 302(1)) provides that a holder in due course is a holder who takes the instrument (a) for value, and (b) in good faith, and (c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

Under section 3 — 303(b) (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 303(b)), a holder takes an instrument for value when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due. It is a basic rule of statutory construction that the words of a statute should be given their plain, ordinary and accepted meaning, unless to do so would defeat the legislative intent. (Department of Public Work & Buildings v. Wishnevsky (1972), 51 Ill. 2d 550, 552; Droste v. Kerner (1966), 34 Ill. 2d 495, 503.) The word “take” means “ ‘to get into one’s possession or power; to acquire; to obtain; to procure.’ ” (Kimbell Trust & Savings Bank v. Hartford Accident & Indemnity Co. (1928), 333 Ill. 318, 320.) Based upon the plain meanings of the words, it is apparent that Jefferson took the Peoria Savings check at 4 p.m. on February 5, 1975, when it was placed on Middendorf’s desk. However, the plaintiff would have us read into the applicable legislative language a requirement that a bookkeeping entry must be made before the holder of the instrument taken in payment of an antecedent claim, or debt, can be said to have taken for value. Under the plain language of section 3 — 303(b) the holder takes for value when he takes an instrument in payment of an antecedent claim, not when he makes a bookkeeping entry.

Under the facts of this case, Jefferson had a claim against Cassidy before the Peoria Savings check was ever passed. Cassidy was the endorser of the dishonored Harris check and, under the Code, Jefferson did not have to make a bookkeeping entry in Cassidy’s account before the claim against him came into existence. (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 122(3).) In pertinent part, section 3 — 122(3) provides:

“(3) A cause of action against *** an indorser of any instrument accrues upon demand following dishonor of the instrament. Notice of dishonor is a demand.”

Thus, a cause of action against Cassidy arose when Cassidy was notified of the dishonor and a demand was made on him to cover this dishonor. The oral notification (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 508(3)) of dishonor by Middendorf to Cassidy on February 5, 1975, was effective to produce a cause of action running to Jefferson. (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 414.) It is clearly manifested that Jefferson had a claim or cause of action against Cassidy after Middendorf called Cassidy and demanded that he make good the Harris check.

Peoria Savings argues that Jefferson could not have been a holder in due course at 4 p.m. on February 5, 1975, of the $70,000 Peoria Savings check because Jefferson did not know how much of an overdraft was created in the Cassidy account as a result of the dishonored Harris check. From the facts it is clear Cassidy owed Jefferson a debt upon receiving notice of the overdraft on February 5. The size of the claim has no bearing on the issue of whether Jefferson took the Peoria Savings check for value, but only on the “extent” that Jefferson took for value.

The evidence in this case clearly indicated that the Peoria Savings check, coupled with the deposit slip, left on Middendorf’s desk was delivered and taken in payment of Cassidy’s antecedent debt to Jefferson. A short review of the facts bears this out. Middendorf testified that he contacted Cassidy by telephone at approximately 3 p.m., informed him of the dishonor of the $70,000 Harris check, and advised him that the overdraft created by the dishonor would have to be covered that day. Cassidy replied that he would take care of it and one hour later delivered the $70,000 Peoria Savings check to Jefferson. Thus it is clear that Cassidy intended the $70,000 Peoria Savings check to cover the antecedent debt he owed to Jefferson.

It has been held that the use by the legislature of certain language in some provisions of a statute, and wholly different language in other provisions, indicates that different results were intended. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69,100.) Had the legislature intended under section 3 — 303(b) that a holder could not take an instrument for value until the instrument was “posted” to or “applied” to an account, it would have expressly so provided as it did in sections 4 — 213(1)(c) and 4-213(4) (Ill. Rev. Stat. 1975, ch. 26, pars. 4 — 213(l)(c), 4 — 213(4)). Since the legislature did not so provide, a requirement of “posting” or “applying” it should not be read into section 3 — 303(b).

Peoria Savings and the appellate court relied heavily on out-of-State cases to read a bookkeeping requirement into section 3 — 303(b). We find that reliance on these cases was misplaced. In none of the decisions relied on by the appellate court was the issue raised by this case squarely presented. See, e.g., Bowling Green, Inc. v. State Street Bank & Trust Co. (D. Mass. 1969), 307 F. Supp. 648; Laurel Bank & Trust Co. v. City National Bank (1976), 33 Conn. Supp. 641, 365 A.2d 1222; United States Cold Storage Corp. v. First National Bank (Tex. Civ. App. 1961), 350 S.W.2d 856; Bath National Bank v. Eli N. Sonnenstrahl, Inc. (1928), 249 N.Y. 391, 164 N.E. 327.

Peoria Savings next contention is that Jefferson was not a holder in due course because it took the check with notice that Peoria Savings had a defense. We find no merit to this contention. As noted in the record, when Jefferson took the check from Cassidy at 4 p.m. on February 5, 1975, Peoria Savings did not know it had a defense to the check. It was not until Jefferson contacted Berry, asking about the check, that anyone finally learned that there was a defense. Section 1 — 201(25) (Ill. Rev. Stat. 1975, ch. 26, par. 1 — 201(25)) of the Code provides that a person has “notice” of a fact when: “(a) he has actual knowledge of it; or (b) he has received a notice or notification of it; or (c) from all the facts and circumstances known to him at the time in question he has reason to know that is exists.”

It is true that Middendorf retrieved the Peoria Savings check from the teller and called Berry at Peoria Savings to inquire about Cassidy. Middendorf testified that he was concerned that Cassidy may have made substantial deposits in Peoria Savings which he felt had been promised to Jefferson by Cassidy. Middendorf’s actions only show that his suspicions were aroused concerning Cassidy’s dealings. These suspicions were not tantamount to a reason for Middendorf to know that Peoria Savings had a defense to its check. Facts and circumstances calculated to merely arouse or excite suspicion cannot be equated with knowledge, or a reason to know. Kavanagh v. Bank of America (1909), 239 Ill. 404,408.

Jefferson also knew of the dishonor of the Harris check, but this again did not cause it to know, or have reason to know, that Peoria Savings had a defense to its check. The knowledge that one of Cassidy’s checks had been dishonored would not, when considered with the other facts, give Middendorf knowledge, or a reason to know, that a defense existed to the Peoria Savings check. Cassidy’s credit with Jefferson was good, he had two small notes with Jefferson that were in good standing, and he did not have a history of writing checks which had been dishonored. This was Jefferson’s first experience of a dishonored check with Cassidy. Jefferson had seen financial statements showing that Cassidy had substantial income and knew he was from a prominent local family. Considering all of the pertinent evidence in the record, and the applicable authorities, it is clear that Jefferson did not take the Peoria Savings check with notice that Peoria Savings had a defense to the check.

Lastly, Peoria Savings argues that, under section 4-302 (Ill. Rev. Stat. 1975, ch. 26, par. 4-302), Jefferson is liable to Peoria Savings for the full amount of the $70,000 check because Jefferson failed to act on the check within its midnight deadline. This is an unusual argument in connection with section 4 — 302, in that the maker of a check is claiming that the payor bank is liable to the maker for the full amount of the check it drew on the payor. Ordinarily, the claim is that the payor bank is liable to the payee (in this case Cassidy) by virtue of section 4 — 302, not to the party issuing the check to the payee. (See Rock Island Auction Sales, Inc. v. Empire Packing Co. (1965), 32 Ill. 2d 269, 272.) The argument is difficult to follow, and we need not address it. At the trial level it was argued that by virtue of the failure of Jefferson to observe the midnight return requirement of section 4 — 302, it became “absolutely liable to Owen Cassidy for the amount of the check,” and not to Peoria Savings as now urged. The question of section 4 — 302 compliance was not argued as an independent issue in the trial court but was urged in connection with Jefferson’s handling of the stop-payment order to demonstrate “bad faith” on the part of Jefferson. The controlling question litigated in the trial court was whether Jefferson was a holder in due course. That was the issue in the appellate court and the controlling issue here. We have above concluded that Jefferson was a holder in due course under the provisions of the Uniform Commercial Code.

For these reasons we reverse the judgments of the appellate court and the circuit court of Peoria County.

Judgments reversed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52761.
    THE PEOPLE ex rel. NO. 3 J. & E. DISCOUNT, INC., et al., Appellants, v. ROBERT M. WHITLER, Director of Revenue, et al., Appellees.

      Opinion filed September 15, 1980.

      Richard B. Caifano and Martin E. Litwin, of Chicago, for appellants.
    William J. Scott, Attorney General, of Springfield (Robert G. Epsteen, Assistant Attorney General, of counsel), for the Director of Revenue et al.

   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On the petition of plaintiffs, No. 3 J. & E. Discount, Inc., and Victor Brown, the circuit court of Cook County issued a writ of prohibition against defendants, Robert M. Whitler, acting director of the Illinois Department of Revenue, and Norman L. Marcus, a departmental hearings referee. The writ prohibited them from holding a departmental hearing pursuant to section 18a of the Cigarette Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 453.18a) regarding the confiscation of certain packs of cigarettes seized from the plaintiffs. The court, however, refused to prohibit the Department from assessing a penalty under section 18b of the Cigarette Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 453.18b). The appellate court held the writ should not have issued, and affirmed the refusal to prohibit the assessment of a penalty. (77 Ill. App. 3d 439.) We granted plaintiffs’ leave to appeal.

The statutes pertinent to this dispute provide in relevant part as follows:

“Sec. 18. Any duly authorized employee of the Department may arrest without warrant any person committing in his presence a violation of any of the provisions of this Act, and may without a search warrant seize any original packages not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages in accordance with the provisions of this Act and any vending device in which such packages may be found, and such original packages or vending devices so seized shall be subject to confiscation and forfeiture as hereinafter provided.” (Ill. Rev. Stat. 1977, ch. 120, par. 453.18.)
“Sec. 18a. After seizing any original packages of cigarettes, or cigarette vending devices, as provided in Section 18 of this Act, the Department shall hold a hearing and shall determine whether such original packages of cigarettes, at the time of their seizure by the Department, were not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages in accordance with this Act, or whether such cigarette vending devices, at the time of their seizure by the Department, contained original packages of cigarettes not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages as required by this Act. ***
If, as the result of such hearing, the Department shall determine that the original packages of cigarettes seized were at the time of seizure not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages as required by this Act, or that any cigarette vending device at the time of its seizure contained original packages of cigarettes not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages as required by this Act, the Department shall enter an order declaring such original packages of cigarettes or such cigarette vending devices confiscated and forfeited to the State, and to be held by the Department for disposal by it as provided in Section 21 of this Act.” (Ill. Rev. Stat. 1977, ch. 120, par. 453.18a.)
“Sec. 18b. With the exception of licensed distributors, anyone possessing cigarettes contained in original packages which are not tax stamped as required by this Act, or which are improperly tax stamped, shall be liable to pay, to the Department for deposit in the State Treasury, a penalty of $10 for each such package of cigarettes in excess of 100 packages. Such penalty may be recovered by the Department in a civil action.” (Ill. Rev. Stat. 1977, ch. 120, par. 453.18b.)
“Sec. 20. Whenever any peace officer of the State or any duly authorized officer or employee of the Department shall have reason to believe that any violation of this Act has occurred and that the person so violating the Act has in his, her or its possession any original package of cigarettes, not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original package as required by this Act, or any vending device containing such original packages to which stamps have not been affixed, or on which an authorized substitute for stamps has not been imprinted underneath the sealed transparent wrapper of such original packages, as required by this Act, he may file or cause to be filed his complaint in writing, verified by affidavit, with any court within whose jurisdiction the premises to be searched are situated, stating the facts upon which such belief is founded, the premises to be searched, and the property to be seized, and procure a search warrant and execute the same. Upon the execution of such search warrant, the peace officer, or officer or employee of the Department, executing such search warrant shall make due return thereof to the court issuing the same, together with an inventory of the property taken thereunder. *** Upon the return of the process duly served or upon the posting or publishing of notice made, as hereinabove provided, the court or jury, if a jury shall be demanded, shall proceed to determine whether or not such property so seized was held or possessed in violation of this Act, or whether, if a vending device has been so seized, it contained at the time of its seizure original packages not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages as required by this Act. In case of a finding that the original packages seized were not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages in accordance with the provisions of this Act, or that any vending device so seized contained at the time of its seizure original packages not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages in accordance with the provisions of this Act, judgment shall be entered confiscating and forfeiting the property to the State and ordering its delivery to the Department, and in addition thereto, the court shall have power to tax and assess the costs of the proceedings.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 120, par. 453.20.

This appeal presents two questions: whether in light of the above-quoted statute and the facts of this case the writ of prohibition was properly issued and whether it was properly limited to the section 18a hearing. The facts involved are not disputed. On December 22, 1976, two agents of the Department of Revenue (Department) filed a complaint for a search warrant against plaintiffs’ premises in La Grange. The complaint alleged that packs of cigarettes with counterfeit tax stamps were being sold on the premises and that plaintiffs held unstamped packs or packs with counterfeit stamps with the intent to sell them in violation of the penal provisions of the Cigarette Tax Act (Ill. Rev. Stat. 1977, ch. 120, pars. 453.23, 453.24). A warrant issued the same day, and in the subsequent search the 42,000 packages of cigarettes which are the subject of this litigation were seized. Criminal charges were filed the next day against Victor Brown, apparently the proprietor of the store in La Grange and subsequently coplaintiff in the petition for a writ of prohibition.

Thereafter the Department notified plaintiffs that it intended to hold a hearing to confiscate the seized packages under section 18a and to impose a penalty under section 18b. Plaintiffs then filed this action seeking a writ of prohibition ordering the defendants to “desist and refrain from any further proceedings in the matter,” and arguing that section 20 limited the Department to in-court proceedings because the cigarettes were seized pursuant to a search warrant. The court allowed plaintiffs’ motion for a temporary writ, thereafter denying defendant’s motions to quash and issuing a permanent writ of prohibition ordering the defendants to refrain from any further departmental proceedings to confiscate the cigarettes. Defendants then filed a notice of appeal but subsequently moved to dismiss the appeal and remand the cause because a nolle prosequi had been entered in the criminal case before the writ of prohibition had issued and the judge who issued the writ had not known of this development. The appeal was accordingly dismissed without prejudice and the cause remanded to the circuit court, which again issued a writ prohibiting the Department from holding a hearing to confiscate the seized cigarettes but expressly providing in the order that the Department could hold any other hearing.

In holding the writ should not have issued, the appellate court acknowledged that section 20 of the Cigarette Tax Act says that the circuit court “shall” hold the confiscation hearing when the cigarettes have been seized pursuant to a search warrant but reasoned that a literal interpretation of the statute would unnecessarily frustrate the ability of the Department to enforce the Cigarette Tax Act as the legislature intended. The court thus construed section 20 to require a confiscation hearing in the circuit court only when a criminal prosecution is pending. In its absence the court concluded that section 20 should not be construed to preclude departmental proceedings. Since the criminal action had been nol-prossed, the Department was free to hold both confiscation hearings under section 18a and penalty hearings under section 18b. That court reasoned that the language of the section does not in any way limit the ability of the Department to assess penalties and that, since such action was, in its judgment, ministerial rather than judicial or quasi-judicial, it was not subject to a writ of prohibition.

A court may issue a writ of prohibition against another tribunal only if four conditions are satisfied. First, the action sought to be prohibited must be judicial or quasi-judicial in nature. [People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 349.) Second, the jurisdiction of the tribunal against whom the writ is sought must be inferior to that of the issuing court. [Hughes v. Kiley (1977), 67 Ill. 2d 261, 266; People ex rel. Town Court v. Harrington (1961), 21 Ill. 2d 224, 226.) Third, the action sought to be prohibited must be either outside the jurisdiction of the tribunal or, if within its jurisdiction, beyond its legitimate authority. (Hughes v. Kiley (1977), 67 Ill. 2d 261, 266; People ex rel. Modem Woodmen of America v. Circuit Court (1931), 347 Ill. 34, 39.) Fourth, the party seeking the writ must be without any other adequate remedy. Hughes v. Kiley (1977), 67 Ill. 2d 261, 266People ex rel. Modem Woodmen of America v. Circuit Court (1931), 347 Ill. 34, 39.

Plaintiffs present here a generalized argument that various aspects of the departmental proceedings, including the absence of a jury trial, will deny them due process if their petition for the writ is denied. The extraordinary nature of the writ of prohibition, however, precludes consideration of arguments, constitutional or otherwise, unless those arguments concern the jurisdiction of the inferior tribunal. Plaintiffs’ due process arguments do not do so. Those claims may, of course, be raised on direct appeal from any action taken by the Department. Ill. Rev. Stat. 1977, ch. 120, par. 453.8; Ill. Rev. Stat. 1977, ch. 110, par. 264.

We consider the requirements for a writ of prohibition in order. Although the tribunal against whom the writ of prohibition is sought in this case is an administrative one, we believe that the administrative action involved is sufficiently judicial in nature to subject it to a writ of prohibition. As the court stated in People ex rel. Hurley v. Graber (1950), 405 Ill. 331, 349, “Although a writ of prohibition does not ordinarily issue to control administrative, ministerial or nonjudicial acts and functions beyond the common-law scope of the writ, if the action sought to be prohibited is judicial in its nature, it may be prevented by the writ of prohibition, although the tribunal or person to whom the writ is addressed is not in name a court or judge.” The action sought to be prohibited in this case — the conduct of a hearing to determine whether certain tax stamps are counterfeit and to confiscate the cigarettes — could be taken by either the circuit court or the Department in appropriate circumstances. (Ill. Rev. Stat. 1977, ch. 120, pars. 453.18a, 453.20.) Moreover, under the Act as originally passed, that determination could be made only by a court. (1941 Ill. Laws 1049-50, secs. 18 to 20.) Under these circumstances the conduct by the Department of such hearing is sufficiently judicial in nature to warrant issuance of the writ. Similarly, to the extent that such a hearing and determination is necessary to the assessment of a penalty under section 18b of the current act, that action is also sufficiently judicial in nature to be subject to a writ of prohibition.

The Department does not argue that the second requirement is not satisfied; the jurisdiction of the Department is clearly inferior to that of the circuit court. The third requirement, however, is the center of controversy in this case. The question is whether the Department’s proposed action has been authorized by the legislature in the Cigarette Tax Act. Section 18a states that the Department “shall” hold a confiscation hearing when the cigarettes have been seized pursuant to section 18, which authorizes seizure without a warrant. Section 20, however, directs that, when the cigarettes have been seized pursuant to a search warrant, the court issuing the warrant “shall” hold the confiscation hearing. The language of the statute thus clearly indicates that the Department does not have the authority to hold a confiscation hearing concerning cigarettes seized under a court-issued search warrant.

The Department nevertheless argues that such a literal construction of the statute is inappropriate because the legislature intended that improperly stamped packages of cigarettes should be subject to confiscation and a literal construction of the Act would frustrate the Department in its attempts to effectuate that intent. We agree as to the legislative intent, but do not regard a literal construction of the Act’s clear language as frustrating that intent. Section 20 does not prohibit the confiscation of cigarettes seized pursuant to a search warrant; it simply requires that the confiscation hearing be held by a court rather than by the Department.

The Department’s concern about the effect of a strict construction is apparently based on two considerations: first, that the court confiscation procedure may be precluded if the criminal charges upon which the search warrant was based are subsequently dropped and, second, that the court confiscation may also be barred if the search warrant under which the cigarettes were seized is subsequently quashed. The first consideration is precisely the situation involved here since a nolle prosequi was entered in the criminal case against plaintiff Victor Brown. The Department’s apprehensions in this regard are not, in our opinion, well founded. Nothing in section 20 predicates the court’s confiscation hearing upon a criminal prosecution. Nor do we believe that the Department’s second concern justifies construing the statute to mean anything other than that which it clearly states. The Department apparently believes that a court could not confiscate cigarettes seized in violation of the possessor’s fourth amendment rights but that the Department could do so. We have been presented with no authority supporting that distinction, however, and we perceive no foundation for it.

The Department also contends that the purpose of obtaining a search warrant under section 20 is to ensure that the seized cigarettes are admissible as evidence in a subsequent criminal prosecution. From that premise the Department argues that when no criminal prosecution is pending, there is no danger that evidence will be suppressed, and the situation with which section 20 was intended to deal no longer exists. The Department contends it should therefore be able to proceed with a confiscation hearing under section 18.

This argument, however, ignores the fact that section 20 involves two separate elements: the authorization to obtain a search warrant and the requirement that the confiscation action regarding cigarettes seized pursuant to that warrant be brought in a court. Obtaining a search warrant, it is true, may serve to prevent the suppression of evidence at a criminal prosecution. The requirement that the subsequent confiscation hearing be held in court does not appear to us, however, to have any connection with the admissibility of evidence at a criminal prosecution, and the Department has given us no reason to change our view. We think it more likely that the purpose of that requirement is to ensure that the courts rather than an administrative agency maintain control over items seized under judicial process. In any case, since the requirement of a judicial rather than administrative confiscation hearing does not affect the admissibility of evidence at a criminal trial, the absence of a pending criminal prosecution does not affect the applicability of that requirement. We conclude therefore that the command of section 20 does apply in the instant case and that the Department does not have the authority to hold a confiscation hearing regarding cigarettes seized pursuant to a search warrant.

In regard to the assessment of a penalty, however, section 18b, which authorizes the imposition of the penalty, clearly vests that authority with the Department. The penalty assessed may be recovered in a civil action, but that action is merely to reduce the penalty to a judgment, not a trial de novo by the circuit court. (Department of Revenue v. Jamb Discount (1973), 13 Ill. App. 3d 430.) The usual ground for issuing a writ of prohibition is that the tribunal subject to the writ does not have the jurisdiction to act. That condition does not pertain to the assessment of a penalty under section 18b by the Department.

The final requirement for the issuance of a writ of prohibition is that the party seeking it have no other adequate remedy. This requirement has been variously interpreted. The usual circumstance in which it is satisfied involves a petitioner for the writ who will suffer some injury due to the unauthorized exercise of jurisdiction that cannot be remedied by vindicating his rights on appeal. (People v. Sears (1971), 49 Ill. 2d 14, 36; People ex rel. Modem Woodmen of America v. Circuit Court (1931), 347 Ill. 34, 38, 44.) In other cases this court has issued a writ of prohibition when two lower courts have issued contradictory orders concerning the same subject matter. (People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442; People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394; People ex rel. Continental Air Transport Co. v. Strouse (1969), 41 Ill. 2d 567.) Although this case does not involve conflicting court orders, it does involve an attempt by the Department to exercise authority which is vested exclusively in the circuit court. Where one tribunal clearly without the authority to act attempts to usurp the jurisdiction of another, we believe that the extraordinary writ of prohibition is justified. In re Mattison (1958), 120 Vt. 459, 144 A.2d 778; State ex rel. Marion County Plan Com. v. Superior Court (1956), 235 Ind. 607, 135 N.E.2d 516; State ex rel. Haddock Engineers Ltd. v. Swope (1952), 56 N.M. 782, 251 P.2d 266; Creighton v. District Court (Okla. 1961), 359 P.2d 581; Spraker v. Carroll (Okla. 1966), 416 P.2d 946.

Accordingly we reverse the judgment of the appellate court insofar as it authorized departmental confiscation hearings, and affirm its judgment affirming the judgment of the circuit court denying a writ prohibiting the Department from assessing a penalty under section 18b. The judgment of the circuit court of Cook County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.


text:
    (No. MR 2391.

      In re WALTER A. ASCHER, Petitioner.

      Opinion filed May 22, 1980.

    Rehearing denied September 26, 1980.

      Francis X. Riley, of Glen Ellyn, for petitioner.
    William C. Murphy, of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for the Committee on Character and Fitness for the Second Judicial District.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The issue here is whether Walter A. Ascher is “of good moral character and general fitness to practice law” as required by our rules (73 Ill. 2d R. 701(a)) for admission to the bar of Illinois. The Committee on Character and Fitness for the Second Judicial District (Committee) reported that it could not so certify (73 Ill. 2d R. 708(c)). Ascher now petitions us to admit him to practice (73 Ill. 2d R. 708(a)), asserting the Committee’s action to be arbitrary and unwarranted.

Petitioner passed the examination conducted by the State Board of Law Examiners in February 1979. On April 16, petitioner, as required by the Board, filed its form entitled “Additional Questionnaire and Statement of Applicant” supplementing the original questionnaire filed in November 1977 containing his original responses to questions concerning character, fitness and personal history. In the additional questionnaire, petitioner was asked whether he had “ever been a party (either plaintiff or defendant) to or otherwise involved in any action or legal proceeding either civil or criminal or quasi-criminal, including any proceedings in a juvenile court?” He responded: “No change.” The fact was, however, that on the preceding November 2, 1978, a civil suit, Alloy Piping, Inc. v. Ascher et al., had been filed in the circuit court of Du Page County, naming petitioner as a defendant. The allegations in that complaint, which was still pending, made serious charges of misconduct against him. It is largely the failure to disclose the existence of that lawsuit and the Committee’s findings regarding the conduct of defendant upon which the suit was predicated which prompted the Committee’s refusal to certify petitioner.

The plaintiff, Alloy Piping, Inc. (Alloy) alleged in count I of its complaint that petitioner occupied a fiduciary relationship to it since he had served as its tax accountant for three years and as its agent-broker for the purchase of real estate. Alloy also alleged that petitioner represented that he would act as Alloy’s “agent-broker” in connection with the contemplated purchase of another tract of land, and that petitioner “controlled” this tract. Relying on those representations Alloy on April 18, 1978, signed a contract for the purchase of the property at a price of $120,000. The contract described the seller as “Bank of Lyons Trust No. 1737,” and was signed by petitioner “as beneficiary of Bank of Lyons Trust No. 1737.” Pursuant thereto, Alloy tendered to petitioner a check for $12,000 made payable to petitioner’s real estate agency, as escrowee. It was additionally alleged that neither petitioner nor Trust No. 1737 held an interest in that real estate on April 18; that petitioner at that time knew that there existed a contract dated April 1 for the sale of the same land by another person, as beneficiary under Trust No. 1737, Bank of Lyons, for a price of $109,000; and that petitioner wilfully, maliciously and fraudulently withheld from Alloy his knowledge of the preexisting contract.

It was further alleged that petitioner violated his fiduciary duties to Alloy by failing to disclose that he, after learning of Alloy’s interest, arranged for the sale of this real estate by the actual owners, Robert and Dorothy Freston, to Winfried and Mildred Kaczmarek for $100,000 pursuant to an agreement between the Kaczmareks and petitioner to share the profit from the subsequent sale to Alloy at the higher price; and that petitioner received a real estate commission on the Freston-Kaczmarek sale. It was further alleged in reference to the Freston-Kaczmarek sale that petitioner knew a $75,000 mortgage was given to the Frestons by the Kaczmareks and recorded, but that the existence of this mortgage was fraudulently withheld from Alloy.

It was also alleged that petitioner tendered to Alloy a Chicago Title and Trust Company commitment for title insurance in the amount of $120,000 which gave no indication of the existence of a mortgage on the covered property. The complaint also charged that the original commitment for title insurance, which was in petitioner’s possession, was in the amount of $100,000 and noted the existence of the $75,000 mortgage. It was additionally asserted that petitioner not only fraudulently withheld this material information from Alloy, but had also altered the copy of the title commitment policy tendered to Alloy by deleting the reference to the mortgage and changing the amount of the policy from $100,000 to $120,000. It was further alleged that at or prior to the time of closing, petitioner forged the signatures of Winfried and Mildred Kaczmarek to the affidavit of title, warranty deed and closing statement, and that the warranty deed prepared by petitioner made no mention of the mortgage. In addition the complaint alleged that petitioner had fraudulently deposited a cashier’s check for $106,952.76, made payable to the Bank of Lyons Trust No. 1737 and representing the amount due the sellers at closing, in his own account in his own name at the Elmhurst National Bank. Also alleged was Alloy’s repeated demand upon petitioner for the clear title which Alloy had learned it did not have. Temporary injunctive relief, actual and punitive damages and a declaration holding petitioner in contempt of court for the unauthorized practice of law were prayed.

Counts II and III of the complaint were directed toward Village Center Realty, Inc., and the Kaczmareks, and the entire complaint was verified. On December 22, an apparently unverified answer to the complaint was filed. Petitioner signed his attorney’s name but with his own initials in parentheses. During oral argument counsel for petitioner submitted a motion, which we now allow, to supplement the record with a copy of a motion for summary judgment filed on behalf of petitioner and denied by the trial court.

Upon learning that this undisclosed suit was pending, and had been pending against petitioner at the time he completed the additional questionnaire, the Committee notified him and conducted a hearing during which some six witnesses, including petitioner, testified and numerous exhibits were admitted. It will be necessary to relate that evidence in some detail.

Following his 1962 graduation from high school, petitioner was employed by various companies for varying periods of time. He also attended several educational institutions on a part-time or evening basis, receiving an A.B. degree from Northeastern Illinois University in 1973. He commenced his law work on a part-time evening-class basis at John Marshall Law School in 1970. In 1975 he enrolled at Lewis University College of Law as a full-time student and graduated in January 1978. Since 1974 he has conducted an accounting business under the name of Ascher Accounting and has been a licensed real estate broker and agent doing business as Village Center Realty. He is also a licensed insurance agent and broker and an “enrolled agent” with the Internal Revenue Service. The “Certificate of Ownership of Business Firm” filed in the office of the county clerk of Du Page County under “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State” (Ill. Rev. Stat. 1977, ch. 96, pars. 4 through 8a) lists Walter Ascher as “owner of” Addison Legal Services, and John A. Darianzo as “(Transacting Business)”. The business card for Addison Legal Services lists Walter A. Ascher as “business manager.” “Addison Legal Services” was apparently adopted in November 1978 by Ascher and Darianzo as a business name and discontinued in May of 1979 when a new lawyer was informed by the Illinois State Bar Association that use of the name was improper.

During its existence Addison Legal Services shared with one of the two Village Center Realty offices and with Ascher Accounting approximately one-third of a building in Addison, owned by petitioner, the balance of which was rented to other small businesses. On the left front of that building above the windows in large letters appear the words

ACCOUNTING & TAX SERVICE VILLAGE CENTER REALTY

LAW OFFICES

530-1020

In addition to the larger signs, there is a third sign, smaller and slightly below the other two, upon which appear the words “Cunningham and Wood, Attorneys at Law.” There is a doorway between the large signs and a second doorway to the right of the realty sign. A diagram of the interior seems to indicate a partition separating the law office from the accounting and real estate offices with communicating doors between them. Apparently a single telephone number served all three. The Addison Legal Services stationery contained the name of John Darianzo as “of counsel.” Cunningham and Wood are two attorneys admitted to practice in 1978. They apparently practiced in Aurora but were joining Addison Legal Services when Darianzo moved to Texas. Although their names appear on the outside of the building in a photograph taken at some undisclosed date, it is not at all clear that either Cunningham or Wood ever practiced at that address or that either was a part of Addison Legal Services during the period here involved. Their names do not appear on the stationery.

With reference to the Freston-Ascher-Kaczmarek-Alloy real estate transaction which culminated in the undisclosed lawsuit, petitioner testified that Mr. and Mrs. Freston had moved to Florida and wanted to sell a tract of real estate known as Lot 4, and that on September 16, 1977, Win-fried Kaczmarek entered into a contract with the Frestons to buy Lot 4. (The September 16, 1977, “contract” in the record, however, is one on which only one signature appears: Winfried Kaczmarek. The record does contain a contract bearing the signatures of Mr. and Mrs. Freston and Winfried Kaczmarek for the. sale of Lot 4 to Kaczmarek for $100,000. That contract is dated April 22, 1978, which, we note, was four days after petitioner had contracted to sell Lot 4 to Alloy for $120,000.)

Petitioner further testified that in December Mr. Freston suggested they change to an “installment sale” secured by a mortgage on Lot 4 to the Frestons; that Mr. Kaczmarek accepted the new terms which were “$25,000 down and $25,000 over a three-year period in annual installments” with a $75,000 mortgage on Lot 4 as security; that petitioner told Mr. Freston that petitioner “was interested in going with Mr. Kaczmarek into Lot 4 because of our subdivision we were trying to make,” and that it might be necessary to transfer the mortgage to another piece of property, to which he said Mr. Freston agreed. Petitioner also testified that he and Kaczmarek were unsuccessful in acquiring other property for the subdivision and decided in January 1978 to sell Lot 4; that in April Thomas Brewer, Sr., one of Alloy Piping’s owners, came to the office to have the corporate income tax return prepared; that he was looking for industrial property, and petitioner succeeded in arranging for him the mid-April purchase of approximately two acres adjacent to Lot 4; that sale was closed in “our office” with the seller and his attorney and Brewer and petitioner present. According to petitioner, Brewer and he then entered into a contract for the purchase by Brewer of Lot 4, petitioner signing that contract as beneficiary of Bank of Lyons Trust No. 1737 although the trust had never had, and never acquired, title to Lot 4. The Freston-Kaczmarek sale of Lot 4 was closed May 22. The closing statement shows a total purchase price of $100,000, with a purchase-money mortgage from the Kaczmareks to the Frestons for $75,000. A $10,000 real estate commission was payable to petitioner’s firm. The Kaczmareks’ names were signed to the closing statement by Darianzo.

On July 6, petitioner testified, the Ascher-Alloy sale of Lot 4 was closed. Petitioner said Brewer had “been made aware that the property was encumbered with a $75,000 mortgage”; that Brewer was concerned about his title and was told by petitioner that all incumbrances would be removed “relatively soon”; that Brewer wanted to know “what his title opinion was going to look like,” and that petitioner took an old title opinion from the KaczmarekPreston closing, masked out with a piece of paper the reference to the mortgage on page 1 and ran it through a copier, changed the amount of insurance from $100,000 to $120,000 and showed it to Brewer as illustrating the policy which would be issued to Brewer. Petitioner testified that he eliminated the mortgage from the first page, but that it was also referred to on the later pages; he also stated that he, Brewer and Darianzo were present when this was done; that Brewer was very much concerned about the mortgage and that petitioner promised to clear the title, but that there was no written agreement to that effect. Petitioner stated he prepared the closing statement, affidavit of title, and the deed; that he felt qualified to do so because he had a 50/50 interest with Kaczmarek. He had the executed deed sent to the recorder’s office, and it reached that office. He left for Europe at the end of July with his family and stayed five weeks. When he returned, the Brewers were upset. They had not received the deed, had employed counsel, gone to the title company office, found the Kaczmareks still had title, and the mortgage was still on the land, even though they had paid the full purchase price to petitioner on July 6. Petitioner testified he was ready to pay off the mortgage in the fall, but that Mr. Freston did not want the money until the following January, and that it was paid and the mortgage released in January 1979. Petitioner also testified that at some time after the filing of the Alloy lawsuit in November 1978 he prepared a written power of attorney from the Kaczmareks to him. That power of attorney pertained to the Lot 4 property, indicated petitioner had an interest in the property, and gave him blanket authority to act for the Kaczmareks. That document was backdated to November 25, 1977, and was acknowledged before a notary on April 9, 1979.

Petitioner also testified that he did not list the pending Alloy lawsuit in his additional questionnaire dated April 16, 1979, because he thought it was listed in his application to take the bar examination for the third time, which he filed in November 1978. Those applications, however, contained no questions regarding court actions involving applicants. Only the character and fitness questionnaire inquired as to court actions, and petitioner had filed it in November 1977, a year before the lawsuit in question had been initiated.

Under questioning by Committee members petitioner stated his position regarding his fiduciary relationship with Alloy and its owners was that such relationship embraced only the tax return. In closing the sale between Kaczmareks and Alloy, petitioner stated Brewer was not represented but closed the transaction “on his own”; that petitioner signed the Kaczmareks’ names to the closing statement although he “was not sure” Brewer knew that. “John Darianzo was there representing Mr. Kaczmarek’s interest ***.” Even though petitioner owned a 50% interest, he did not sign the closing statement in his own name. When asked “why,” he replied, “Because the deed had come from Kaczmareks’ to Brewer and I felt I didn’t want to mess up my interest by having it go any further.” He maintained, however, that Brewer knew of his interest. He admitted that he had signed the Kaczmareks’ names to the deed, and that Darianzo had notarized it, and that Darianzo had signed Mr. Kaczmarek’s name to the “plat act affidavit” and notarized that, too. He attempted to explain the absence from the closing statement of any reference to the mortgage by saying he had promised Brewer to remove the mortgage “and that’s why I didn’t put it on the closing statement.” Petitioner admitted there were no efforts made to remove or transfer the mortgage from the property being purchased by Brewer between the time Brewer signed the contract in April and the July 6 closing date. There was no discussion with Brewer of the possibility of his company buying the property subject to the mortgage.

In the questioning of petitioner by committee members it also developed that in at least one other real estate transaction (Bemacki) petitioner and Kaczmarek were the actual buyers although petitioner and Darianzo were shown as such. A $10,000 real estate commission was charged the seller there as well as in the Freston sale, a practice petitioner thought proper as long as the parties didn’t object. It was also established that petitioner had signed the Kaczmareks’ names to an affidavit of title on which a secretary in petitioner’s accounting office had executed the jurat. His explanation for the various irregularities was that they were trying “to save paperwork” and took “too many shortcuts.”

John Darianzo testified he had been admitted to practice about 5 years, 2Mi of which were spent in Kane County and the balance in Du Page County, all as a sole practitioner. He rented space from petitioner and did some work for him for which he received credit on the rent. He and petitioner formed Addison Legal Services because Darianzo wanted to move to Houston as soon as petitioner was admitted to the bar; “we knew we were going to get Phil Wood and Jack Cunningham in there to take over some of the stuff,” and “we wanted to keep it as open as possible.” Darianzo admitted he signed the names of Winfried Kaczmarek and Mildred Kaczmarek to a corrective trust deed and Winfried Kaczmarek’s name to a “plat act affidavit” with only oral authority from Mr. Kaczmarek and without talking to Mrs. Kaczmarek, whom he did not know but who was ill, and that he then notarized the affidavit himself. He also testified that Brewer was informed of the mortgage on the Freston property and that it would be removed; that Brewer knew of the alterations in the title policy documents; and that the mortgage reference was blocked out and the amount increased so that Brewer could see what the title was “going to look like when I get it back.” He thought a secretary might have made the changes — “I don’t recall.” He excused the absence of a written power of attorney and signing the Kaczmareks’ names without noting his agency on the grounds that the Kaczmareks lived in Rockford, some distance away. The fact that he had signed the Kaczmareks’ names was not disclosed to Brewer. He conceded his actions were “a little bit improper,” but he was “trying to expedite the matter.” The fact that he was shown, on the closing statement prepared by him, as one of the buyers in the Bemacki real estate transaction in which he actually had no interest was “inadvertent”; he could not recall why he was shown as the seller in the closing statement prepared by him in the Sollitt real estate transfer when he had no interest in it. He agreed that his listing as “of counsel” on the Addison Legal Services stationery implied the presence of other lawyers although there were none, but denied this was done to convey the impression that petitioner was a licensed attorney. According to Darianzo, petitioner’s responsibilities in connection with Addison Legal Services were those of a landlord, but that petitioner also handled the billing and collection of the fees for legal services. Checks on Darianzo’s business accounts had to be signed by any two of Darianzo, his secretary, petitioner or petitioner’s wife.

Winfried Kaczmarek testified he had known petitioner six to eight years; that they had been and were in several real estate and business ventures together; that he had given him verbal authority to sign any necessary papers and take any necessary action in connection with any of their transactions; that he had never had any occasion to question petitioner’s handling of his money, and that “As far as I am concerned, if he [petitioner] wants some money from me right now, he has got it.”

Mrs. Bemacki testified that she had no complaints regarding petitioner and related her efforts to persuade the Frestons, whom she knew well, that petitioner, whom she had recommended to them, was reliable and that they need not worry about the mortgage regarding which they were receiving calls from Brewer.

Thomas Brewer, Sr., testified that he had asked petitioner about Lot 4, which was offered to them by another realtor; that petitioner said he controlled it and “could sell it to us direct” at a cash price of $120,000; and that a contract for its purchase was subsequently signed. During the first part of July the witness went to petitioner’s office with a check for the property which he gave petitioner. The witness wanted to take the deed to have it recorded, but petitioner said he preferred to do it. There was no mention of any mortgage until July 28 when he received a letter from the bank which had taken title as tmstee for him. He had received a tide commitment at the closing, but there was no change made in it that he knew about, and he did not know until after talking to the bank that a mortgage reference in the title commitment given him had been blocked out. John Darianzo had been sitting at his desk on the other side of the room while the witness dealt with petitioner. On other occasions when the witness had purchased real estate he had retained a lawyer, but he assumed petitioner was one. All of the sellers’ signatures on the document had been affixed before the witness arrived. Brewer was asked about an October 19, 1978, letter to petitioner which referred to “clear title” being promised on July 6 and three specified September and October dates. That reference was explained as resulting from the witness’ efforts to get a closing date set and petitioner’s indication that he would have it “all complete” on the 6th. Brewer again asserted that there was no disclosure of the mortgage or discussion about it until after the July 28 notice from the trustee bank. He stated that he no longer had any faith at all in petitioner.

The final witness before the Committee was Bruce Heidecke, a lawyer who represented the Frestons in their sale to Kaczmarek. He testified that at no time during that transaction did he or his clients know that petitioner was a partner with Kaczmarek. He also testified to participating in a December 20, 1977, real estate closing in which petitioner appeared. The witness represented the seller, and petitioner, who was not the broker in the sale, appeared to represent the Garzas, who were buying the property. Petitioner, Heidecke testified, took all of the documents tendered by Heidecke, examined them and explained their significance to the Garzas. Although petitioner did not so state, the witness assumed petitioner to be the Garzas’ lawyer. Petitioner subsequently filed an affidavit stating he attended the closing solely as a broker and friend of the Garzas. The affidavit does not indicate petitioner to have acted as a broker in that sale; it does state petitioner did not charge a fee and did not represent himself to be a lawyer.

A number of letters and statements from clients, friends and community residents, including a Lewis University professor, were filed attesting to petitioner’s honesty and competency.

The Committee filed with the Board a unanimous report reciting the evidence and stating certain conclusions. Petitioner’s conduct was found to be “inexcusable,” and the report indicated the Committee could “not accept” petitioner’s explanation of his failure to disclose the Alloy Piping litigation. The Committee found “unconscionable” the procedures followed by petitioner, particularly with reference to the Alloy and Freston transactions, indicating to the Committee “a serious defect in the character of the applicant, rendering him unfit to practice law in Illinois.” A further reason for denying certification was found by the Committee in its belief that “the procedure followed with respect to the ‘Addison Legal Service’ was simply a subterfuge to permit Ascher to practice law without a license.”

It is well established that the exercise of discretion by a committee on character and fitness in its consideration of an applicant’s fitness for admission to practice law in this State will not be reversed by this court unless certification has been arbitrarily refused. (See In re Latimer, (1957), 11 Ill. 2d 327, 330, appeal dismissed (1957), 355 U.S. 82, 2 L. Ed. 2d Ill, 78 S. Ct. 153; In re Frank (1920), 293 Ill. 263, 264; see also Sprecher, Admission to Practice Law in Illinois, 46 Ill. L. Rev. 811, 835 (1952).) It is, moreover, clear that the burden of proving the requisite good moral character and fitness lies on the applicant. See In re Martin-Trigona (1973), 55 Ill. 2d 301, 305, cert, denied (1974), 415 U.S. 910, 39 L. Ed. 2d 465, 94 S. Ct. 1404; see also, Weiss, The Commit tee on Character and Fitness: The Supreme Court’s Private Investigators!, 45 Ill. Bax J. 818, 822 (1957).

Recent decisions of this court have emphasized the importance of an applicant’s duty to respond fully and accurately to those questions posed in an application for admission to the bar. (See In re Mitan (1979), 75 Ill. 2d 118, 127, cert, denied (1979), 444 U.S. 916, 62 L. Ed. 2d 171, 100 S. Ct. 231; In re Martin-Trigona (1973), 55 Ill. 2d 301, 307, cert, denied (1974), 415 U.S. 910, 39 L. Ed. 2d 465, 94 S. Ct. 1404; see also Illinois Code of Professional Responsibility, Disciplinary Rule 1 — 101(A) (1970); Committee on Professional Responsibility, Proposed Draft, Disciplinary Rule 1 — 101(A) (1980).) Other jurisdictions have similarly stressed the requirements imposed by this duty on bar applicants. In In re Willis, 288 N.C. 1, 18, 215 S.E.2d 771, 781, appeal dismissed (1975), 423 U.S. 976, 46 L. Ed. 2d 300, 96 S. Ct. 389, the North Carolina Supreme Court stated: “Misrepresentations and evasive or misleading responses, which could obstruct full investigation into the moral character of a Bar applicant, are inconsistent with the truthfulness and candor required of a practicing attorney,” citing, Carver v. Clephane (D.C. 1943), 137 F.2d 685, In re Meyerson (1948), 190 Md. 671, 59 A.2d 489, In re Greenblatt (1938), 253 App. Div. 391, 2 N.Y.S.2d 569, and Annot., Admission to Bar — Moral Character, 64 A.L.R.2d 301, 318 (1959).

Because committees on character and fitness lack the personnel and other resources to conduct independent investigations of bar applications, they are obliged to rely primarily on truthful answers by the applicants to committee questionnaires as a source of material information. Failure to answer truthfully and fully has been held tantamount to a fraud upon this court and has resulted in the imposition of severe disciplinary measures. In re Mitan (1979), 75 Ill. 2d 118, 127, cert, denied (1979), 444 U.S. 916, 62 L. Ed. 2d 171, 100 S. Ct. 231, citing People ex rel. Healy v. Propper (1906), 220 Ill. 455, People ex rel. Deneen v. Gilmore (1905), 214 Ill. 569, and People ex rel. Deneen v. Hahn (1902), 197 Ill. 137.

When requested to list on his original questionnaire any action or legal proceeding, civil or criminal, in which he had been a party or otherwise involved, petitioner listed eight actions in which he was apparently a party and an unspecified number of traffic violations. When requested to update that list in a supplemental questionnaire, petitioner failed to indicate that Alloy had filed a suit against him by responding that there had been “no change” since the filing of his original statement. Petitioner has attempted to explain this false response by claiming that he believed the lawsuit had been reported on an earlier form. The Committee obviously did not believe that explanation, and the members’ disbelief certainly cannot be said to be contrary to the manifest weight of the evidence. The creditability of petitioner’s explanation is further strained by the fact that he stated in his sworn petition filed with this court that the Alloy suit “wasn’t of such legal and ethical concern that it would inevitably impress one’s consciousness, to the necessity of suppression.” This assertion that the charges of forgery and fraud contained in the complaint filed by Alloy were not such as to cause serious concern regarding petitioner’s moral character simply emphasizes petitioner’s insensitivity to the improprieties and irregularities evidenced by his earlier conduct. Like the record in this case, petitioner’s explanation demonstrates the existence of fundamental questions regarding petitioner’s capacity to make those ethical judgments required of an attorney in the course of his practice and the performance of his fiduciary responsibilities. We can conclude only that the Committee’s refusal to certify petitioner is not contrary to the manifest weight of the evidence. Indeed, it seems to us the only conclusion a conscientious committee could reach.

If, however, further proof of unfitness were thought to be necessary, it is readily available in the fact that petitioner not only knew Darianzo had signed the Kaczmareks’ names to the mortgage, but, incredibly, Darianzo had also signed Mr. Kaczmarek’s name to the title affidavit, notarizing it as well; additionally, petitioner himself had signed the Kaczmareks’ names to a deed and affidavit and had his secretary execute the jurat. Leaving aside the matter of the deeds, the gross impropriety in the execution and notarization of the affidavits is obvious even to the untrained mind. In neither case, apparently, was this procedure known to the other concerned parties.

During oral argument of this case, counsel for the Committee noted two other misrepresentations in petitioner’s supplemental statement. When asked whether he had ever worked in a law office or had otherwise been employed by a lawyer, petitioner answered “no,” in the original questionnaire, and “no change,” on the supplemental statement. He did so despite the fact he was the registered owner of Addison Legal Services and had been serving as its business manager. In addition, he had answered “no” on both forms to the question whether he had ever been “accused by any employer, superior, associate, customer or other person of dishonesty in connection with any employment or occupation,” even though the Alloy suit charged him with gross misconduct including fraud and forgery.

Petitioner has repeatedly asserted in oral argument and in his briefs that Alloy has received what it paid for as though the belated payment and release of the mortgage completely eliminated all problems. True, Alloy apparently has, several months after filing a lawsuit to compel it, received the clear title to Lot 4 for which it paid some six months earlier. But the character and fitness requirements of the legal profession are not met simply by ultimately delivering that which was wrongfully withheld originally. The integrity of our profession can be no greater than that of its members, and we protect neither our profession nor the public when we admit to the profession those who have demonstrated the insensitivity to its standards which is evident here.

The petition for admission to the bar of this State is denied.

Petition denied.