author: MR. JUSTICE LYONS

text:
    Rao Electrical Equipment Co., Inc., a Corporation, Plaintiff-Appellee, v. Macdonald Engineering Co., a Corporation, Defendant-Appellant.
    Gen. No. 54,620.
    First District, Second Division.
    April 28, 1970.
    Rehearing denied June 10, 1970.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, John T. Coleman, John W. Dondanville, and Timothy J. Egan, of counsel), for appellant.
    Neistein, Richman & Hauslinger, of Chicago (Morton J. Hauslinger, Harry A. Young, Jr., and Allen C. Engerman, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Macdonald Engineering Co. (hereinafter referred to as Macdonald), prosecutes this interlocutory appeal (Ill Rev Stats 1969, c 110A, § 307) from a temporary injunction order, as later modified by the court, entered against it and in favor of the plaintiff, Rao Electrical Equipment Co., Inc. (hereinafter referred to as Rao).

In its verified complaint Rao alleged that it is a foreign corporation in Illinois with its principal place of business in New York City whereas Macdonald is also a foreign corporation but is qualified to do business in Illinois with its principal place of business in Chicago; that on or about February 7, 1969, a written contract was entered into between Rao as electrical subcontractor and Macdonald as general contractor for the electrical work required in the construction of a cement plant in Pennsuco, Florida, on premises owned by Maulé Industries, Inc.; that Rao proceeded to perform under this written contract which was later modified by the mutual consent of the parties, as the contract price was increased from $1,067,000 to $1,251,154, exclusive of $250,000 overtime pay and the completion date was allegedly changed from August 1, 1969 to a date to be mutually agreed upon by Rao and Macdonald. Thereafter, on or about June 18, 1969, Rao and Koppers Company, Inc. entered into a written contract whereby Rao, as subcontractor, was to install for Koppers on the same cement plant site in Pennsuco, Florida, certain electrical air pollution equipment for the price of $79,400 (Koppers was another subcontractor for Macdonald performing other work on the Florida project); and that the written contract between Rao and Macdonald, which contract was attached to the complaint as an exhibit, contained a provision stating that:

“Should the Sub-contractor (Rao) fail to prosecute said work or any part thereof with promptness and diligence, or otherwise violate the terms of this agreement, the General Contractor (Macdonald) shall be at liberty, after three (3) days’ written notice to the Sub-contractor, to provide such labor or materials as may be necessary to complete the work, and to deduct the cost and expense thereof from any money then due or thereafter to become due to said Sub-contractor under this agreement, and the General Contractor shall be at liberty to take possession, for the purpose of completing the work included in this contract, of all materials, tools, scaffolding and appliances thereon, and to employ or contract with any other person or persons to finish the work and provide the materials therefor.”

The verified complaint then referred to a letter prepared on Macdonald’s stationery, signed by Roy White, Vice-President of Macdonald, and hand-delivered to Rao in Florida on October 11,1969. The typed letter, attached to the complaint as an exhibit, stated that since Rao had advised Macdonald that it (Rao) was not going to perform any further work under its written contract with Macdonald, Macdonald — pursuant to its contract with Rao — would take possession of all materials, tools, scaffolding and appliances on the job site for the purpose of completing the work and would withhold all further payments to Rao. In its complaint Rao also alleged that on October 10, 1969, the date of the typed letter, it employed over one hundred men on the project site and on that date Macdonald owed it $550,364.45; that on October 14, 1969, agents and employees of Macdonald broke the locks on Rao’s tool sheds located on the construction site and wrongfully confiscated and took possession of: (1) Rao’s tools and equipment inventory valued in excess of $52,000; (2) Rao’s vehicles valued at $25,750; and (3) Rao’s supply and material inventory located on the site which was not valued in the complaint.

In conclusion, Rao’s complaint alleged that it had never refused to complete the work required of it under the written contract with Macdonald but rather was performing with promptness and diligence; that Macdonald had wrongfully prevented Kao’s employees from working on the job site thereby keeping Kao from further performing under the contract and had wrongfully taken Kao’s tools, materials, supplies and equipment in addition to wrongfully preventing Rao from performing its contract with Hoppers Company by such conduct Kao alleged that Macdonald, by its wrongful actions, had caused Rao to suffer irreparable loss and damage for which it had no adequate remedy at law and prayed for the following relief: (1) that a temporary mandatory injunction be entered immediately, to be made permanent later after a final hearing, whereby the court would compel Macdonald to return to Kao all of the latter’s tools, equipment, materials and supplies; (2) that a temporary injunction be entered against Macdonald, to be made permanent later after a final hearing, enjoining the defendant corporation from terminating its contract with Rao and attempting to employ other electrical subcontractors to perform Kao’s work and enjoining Macdonald from all actions tending to prevent Rao from performing its contractual obligations with Macdonald and with Hoppers Company, Inc.; (3) that a temporary injunction be entered against Macdonald enjoining it from instituting proceedings in other courts in other states against Rao wherein the subject matter would be the same as the matters presented in the complaint at bar; and (4) that a money judgment be entered in Rao’s favor and against Macdonald for the sum of $550,364.45 and statutory interest.

Macdonald filed a motion to strike the complaint alleging that chancery had no jurisdiction since Rao had an adequate remedy at law for damages arising from the alleged breach of contract. After argument, this motion was denied. Macdonald filed its verified answer admitting the existence of the written contract between the parties but denying that Rao had performed under this contract and affirmatively stating that Rao had refused to finish the work required by the contract.

The answer went on to state that on February 9, 1969, Rao forwarded a letter to Macdonald which indicated that Rao would complete its subcontract with Macdonald by September 1, 1969, with no overtime being necessary but that on September 1, 1969, Macdonald gave Rao a second extension of time and agreed to overtime pay which eventually resulted in the authorization of six ten-hour workdays each week as Rao had requested; that on October 10, 1969, Rao informed Macdonald that it would complete its subcontract only upon three conditions: (1) that Macdonald pay immediately all of Rao’s invoices for material and labor which had been submitted to Macdonald but not yet paid by it; (2) that Macdonald pay over immediately to Rao the 15% retainage which it had been withholding from each monthly payment; and (3) that the contract between them be changed from a lump-sum contract to a cost plus 5 % (of cost) contract.

In conclusion, the sworn answer alleged that on October 10, 1969, Rao had completed only 30% of the electrical work whereas 96% of the cement plant was completed including 92% of the machinery and 70% of the piping; and that the court enter judgment for Macdonald and against Rao.

At the numerous hearings held on Rao’s motion for a temporary injunction order, three witnesses testified for Rao: Chester Yablonski and Frank Sineri, both Rao Vice-Presidents, and Roy White, Vice-President of Macdonald, who testified as an adverse witness under section 60 of the Civil Practice Act (Ill Rev Stats 1969, c 110, § 60). Testifying for Macdonald were Roy White and James W. Macdonald, Jr., President of Macdonald, and Yablonski, who was questioned as an adverse witness.

These witnesses all agreed that under the written contract between Rao and Macdonald, Rao was to submit invoices monthly, and after the architect approved them as reflecting work actually completed by Rao on the site, Macdonald was to pay these invoices within a month and withold 15 % retainage; that Macdonald was the architect, designer, and general contractor for the cement plant so that it both approved Rao’s invoices as architect and paid them as general contractor; that Macdonald promptly paid Rao’s first six invoices and also the seventh, after Rao had adjusted it in accordance with Macdonald’s suggestion so that it reflected only the work actually done during the billing month, but that Macdonald had not paid Rao’s eighth invoice, the billing for work done in September, 1969, which had been submitted to Macdonald in early October, 1969, and which had been in its possession for ten or fifteen days as of the dates of the hearings on Rao’s motion for a temporary injunction order; that although the contract between the parties had a completion date of August 1, 1969, this was later extended to September 1, 1969, then to October 15, 1969, and eventually to some future date; and that as Rao worked on its electrical subcontract with Macdonald, it was concurrently working on its Koppers contract located on the same cement plant site so that Rao’s tools, vehicles, materials, and supplies used on both contracts were commingled at the construction site.

As to the breach of contract, however, each side’s witnesses charged the other side with the breach. Testifying for Rao, Yablonski and Sineri both stated that during the week of October 6-10, 1969, Rao had about one hundred and twenty-seven men working on the site with ninety men working six ten-hour days on the Macdonald contract and thirty-seven men working on the Koppers contract; that Rao’s tools located on the site were valued at $52,000, its vehicles at $25,000, and its materials and supplies at about $200,000; that when Yablonski and Sineri spoke with Roy White on the construction site in Florida on or about October 3, 1969, many dates of completion for the electrical subcontract were discussed including December 7, 1969, for the completion of one unit and December 24, 1969, for completion of the entire electrical work but the parties never agreed to complete the contract by a date certain; that on or about October 9, 1969, Yablonski said to White in Sineri’s presence that the overtime currently being worked by Rao’s employees coupled with the additional equipment, tools, and supplies necessary to support the acceleration in construction was putting a burden on Rao’s cash position and he recommended three alternatives to aid Rao: (1) Macdonald was to pay in full all of Rao’s invoices, meaning Macdonald would immediately pay Rao’s September billing, would surrender the 15% retainage, and there would be no retainage applied to future invoices; or (2) Macdonald was to keep $75,000 of the retainage but was to pay the rest to Rao and, in the future, was to reimburse Rao fully for all its costs plus 5% overhead; or (3) if Maulé, the owner, thought that Rao should be replaced as electrical subcontractor, Rao would assist in the transition so as not to delay construction but wanted to be paid in full for all invoices it had submitted to Macdonald including the retainage.

Continuing, Yablonski and Sineri testified that in response to these suggestions, White stated that he believed all three proposals would be unacceptable; that during the early morning hours of October 11, 1969, White came to Yablonski’s motel room and in the presence of Yablonski, Sineri, and Joseph Rao Jr., asked for a memo from Rao, through Yablonski, which would state that if none of the conditions were met, Rao would not proceed with the electrical subcontract but Yablonski declined saying Rao wanted to complete its contract with Macdonald; that eight hours later White returned to Yablonski’s motel room at a time when Sineri and Rao Jr. were again both present, and handed Yablonski a typed letter, the same letter referred to and attached to Rao’s complaint, advising Rao that since it had advised Macdonald that Rao was not going to perform further under its contract, Macdonald would make no further payments and was going to take possession of all materials, tools, scaffolding and appliances found on the construction site for the purpose of completing the work; that Yablonski told White at that time that he had never advised Macdonald that Rao was not going to complete the contract but White replied that he had to leave this letter with Yablonski.

Sineri admitted that he called White on October 10, 1969 and told him that there might be a layoff after Monday’s (October 13) workday; that on October 3, 1969 Sineri had reviewed the actual electrical installation on the site and found it to be about 44% completed; and that on Tuesday, October 14, 1969 Rao had only eleven men on the job as compared with over one hundred and twenty-five employed the prior week.

Yablonski alone testified that when Rao’s employees went to the job on Tuesday, October 14, 1969, they found another electrical subcontractor on the site — Lowry Electric Company — who informed them that they were replacing Rao; that either Macdonald or Lowry had removed the locks on the tool boxes replacing them with new locks and had taken Rao’s trucks; that Rao’s employees were also unable on October 14, 1969, and thereafter, to obtain materials, supplies, and tools located on the site and hence have been prevented from performing its contracts with Macdonald and Koppers; and that Rao was ready to continue its performance when its materials, tools, supplies, and vehicles were returned to it.

Roy White testified that the contract between Rao and Macdonald had a completion date of August 1, 1969, but this was extended to September 1, 1969, then to October 15, 1969, and eventually Macdonald sent Rao a letter inquiring as to whether or not Rao could have one system ready by the first week of November and the entire contract completed by the first week of December, 1969, but received no definite answer in reply; that he met with Yablonski and Sineri in White’s motel room in Florida on October 9, 1969, and it was there that the two men told White, about six times, that Rao would leave the job site unless two conditions were met: (1) its unpaid invoices were paid off in full, including the 15% retainage theretofore held by Macdonald; and (2) a new contract was executed between the parties under which Rao was to receive reimbursement for all its future costs and, in addition, a 5% profit based on the costs incurred, but that he (White) responded by saying that neither Macdonald nor Rao could go beyond the framework of the lump-sum contract between them and Yablonski replied that in that case Rao might lay off its men starting the following Monday, October 13,1969.

Continuing, White testified that on October 10, 1969, Sineri told him that before Sineri called the union and laid off Rao’s employees, he was going to wait until Rao Sr. talked to Macdonald Jr. and that thereafter on October 10, 1969, Sineri called him again and informed White that Rao intended to lay off its employees on Monday, October 13,1969, unless Macdonald paid off all Rao’s invoices to date including retainage; that on October 11, 1969, White asked Sineri, Yablonski, and Rao Jr. for a written memo to the effect that Rao would leave the job unless these conditions were met, but did not receive it, and was told that Rao Sr. had talked with Macdonald Jr. over the telephone so that the Rao supervisory employees did not know what to do; that he gave Yablonski the typed letter on October 11, 1969 at which time Yablonski stated that Rao had only said it was going to lay off some men and had never said they were not going to perform under the contract; that Rao dismissed all their employees from the Macdonald contract after work on Monday, October 13, and that Macdonald alone, during the afternoon of October 14, 1969, and in accordance with directions from Maule’s attorney, took possession of Rao’s materials, supplies, tools and vehicles found on the construction site. In conclusion, White stated that although the cement plant was 90% constructed, exclusive of the electrical work, and electricians are normally only 10-15% behind the other trades, his estimate of October 13, 1969, made at the site, showed that Rao had only completed 30% of its electrical work, although it had billed Macdonald for 88% of the materials and 44% of the labor; and that on October 13, 1969, he had talked in Florida with Jim Lowry of Lowry Electric Co. and thereafter a verbal agreement was made on October 14, 1969, between Lowry and Macdonald whereby Lowry would replace Rao and would complete the electrical subcontract for a fee of cost plus $75,-000, with one electrical system completed by December 7 and the entire electrical work completed by December 31,1969.

Testifying as an adverse witness during the presentation of Macdonald’s evidence, Yablonski stated that Rao men in Florida had been in contact with Rao Sr. in New York City on October 10, 1969, and he had told White of this on October 10 during their conversation but he (Yablonski) had not talked with Rao Sr.

James Macdonald Jr., president of Macdonald Engineering Company, testified that in the evening of October 9, 1969, he received a telephone call at his home in Kenilworth, Rlinois, from Roy White informing him that Rao was going to lay off their employees on Monday, October 13, 1969, unless Macdonald paid its invoices immediately, including all retainage heretofore held, and the contract was changed from lump-sum to cost plus 5% of cost; that the next morning Macdonald Jr. called Rao Sr. in New York to be sure this was Rao’s position and Rao told him that “he had put a lot of money into this job and was not going to continue unless the new terms were met,” whereupon Macdonald replied that he would not change the terms of the contract between the parties but he would aid Rao’s cash position by paying its invoices twice a month instead of monthly, by reimbursing it weekly for its overtime pay, and by paying Rao’s September invoice, net of retainage, if the work reflected thereon was actually shown to be done on the site. Macdonald Jr. also said he offered to meet with Rao Sr. and with representatives of Maulé Industries, the owner of the cement plant, in Chicago, New York City, or Miami to discuss the problem and to keep construction in progress. Rao Sr. reiterated his intention not to put any more money into the job but did say he would call Macdonald Jr. later in the day after talking with Sineri in Florida.

In his return call, Rao said that his company wanted to finish the contract but that by Monday, October 13, 1969, Macdonald would have to pay all of Rao’s outstanding invoices, would have to remit the entire retainage fund, and from then on would have to pay Rao for all its costs incurred in the job without any limit. Macdonald Jr. refused to accept these terms saying the parties were bound by the lump-sum contract and Rao stated that his men would be off the job on Monday night, October 13, 1969. Macdonald Jr. testified that he then told Rao that Macdonald would have to take over the job and Rao replied that was of no consequence to him as he had put enough money into it. Macdonald Jr. then called White in Florida and told him of this development.

In cross-examination, Macdonald stated that up to October, 1969, Rao’s workmanship was satisfactory but not its progress since it failed to keep up with the other construction work and that although Rao wanted a January 15, 1970 completion date for one electrical unit, this was unacceptable to Macdonald who wanted to finish the job in December, 1969.

After hearing this evidence, the court found, among other things, that Macdonald’s actions in taking possession of Rao’s materials, tools, vehicles, and supplies were unwarranted and unlawful, and prevented Rao from performing under its subcontract with Koppers; that Macdonald’s retention of these items was causing irreparable injury to Rao; and that Rao had no adequate remedy at law. The court entered a temporary injunction restraining Macdonald, its officers, agents, attorneys, and those in privity with it, from all actions tending to prevent Rao’s performance of its contract with Koppers, from instituting proceedings in other courts in other states against Rao wherein the subject matter of the proceedings would be substantially the same as the matters alleged in Rao’s complaint, and from installing, removing, using or handling the materials presently located on the site of the cement plant and not yet permanently installed. The court refused to enjoin Macdonald from terminating its contract with Rao and from employing another electrical subcontractor to replace Rao but did enter a temporary mandatory injunction compelling Macdonald to return to Rao all of Rao’s property which Macdonald had seized. The matter of the $550,-364.45 money judgment was continued to a later date since no evidence had yet been heard. Macdonald was given leave to file a counterclaim.

Macdonald’s later motion to dissolve the injunction was denied but thereafter the court modified the terms of the temporary injunction by dissolving that portion restraining Macdonald from installing, removing, using or handling materials located on the job site and not yet permanently installed except that Macdonald was still enjoined from handling materials which Rao had to use to complete its contract with Koppers. This modification was required so that construction work could begin again, but more importantly, the materials were on the job site, but Rao had apparently been unable to pay its suppliers. Rao presented unpaid invoices total-ling $165,000. The court ordered Macdonald to deposit this sum in a special checking account so as to satisfy these possible lien claims and in exchange Macdonald was allowed to use the materials on the site since it had now paid for them. An accounting between the parties as to the $165,000 was to be conducted at a later date.

Although Macdonald raises many points on appeal, we are of the opinion that it is necessary to discuss only one of them. We hold that the remedy of injunction was improper in this case as the parties had an adequate remedy at law for breach of contract. It is apparent from the pleadings and from the evidence that although Rao filed its complaint in the Chancery Division of the Circuit Court of Cook County, the crux of its case involved breach of contract. Each side, in its pleadings and evidence, charged the other with such breach. It was Rao’s position that Macdonald materially breached the contract by serving it with a premature written notice of termination, whereas Macdonald contended that Rao materially breached the contract by Rao Sr.’s refusal to perform further unless the terms of the contract were materially altered, which caused the termination notice to be served later on Yablonski.

It was the duty of the trial judge to remit these parties to the Law Division where either side could demand trial by jury. Cook County v. Davis, 143 Ill 151, 32 NE2d 176 (1892). There was no allegation in the complaint nor was any evidence presented that Macdonald was insolvent. Thus, if the jury returned a favorable verdict, Rao could apparently collect a money judgment from Macdonald for material breach of contract. Since Rao had an adequate remedy for the recovery of money damages, it was not entitled to injunctive relief, (Tanton v. Boomgarden, 79 Ill App 551, 556-57 (1898); Lipkin v. Burnstine, 18 Ill App2d 509, 152 NE2d 745 (1958)) including a mandatory injunction which is not regarded with judicial favor but rather is used only with caution in cases of great necessity. Lyle v. City of Chicago, 357 Ill 41, 191 NE 255 (1934). In the case at bar, a temporary mandatory injunction was granted.

Regarding the taking of Rao’s tools, materials, supplies and vehicles, Rao had an adequate remedy against Macdonald as it could bring, in the proper forum, an action of replevin or for money damages on a theory of conversion, litigating therein the issue of whether or not the taking was wrongful. As for Macdonald’s actions interfering with Rao’s performance of its contract with Hoppers, this would be an additional element of compensatory damages in Rao’s suit against Macdonald for breach of contract. In our opinion, Rao had a complete and adequate remedy at law by recovery of damages so that remedy by injunction was not available.

Rao maintains, citing 2 ILP Appeal & Error, § 173, at pages 234-35, that Macdonald consented to the entry of the temporary injunction order affecting the Hoppers contract and the return of the tools, supplies, materials, and vehicles so that these portions of the order cannot be reviewed since the trial court was not required to make a judicial determination. Although counsel for Macdonald did say on some occasions that Macdonald agreed to return Rao to the site so that it could complete the Hoppers contract and did agree to return Rao’s tools, materials, supplies, and vehicles, he always denied that Macdonald’s actions were unlawful contending they were completely justified under the written contract with Rao permitting such seizure. The court recognized this position and in its temporary injunction order expressly found that Macdonald’s actions were unwarranted and unlawful. Because Macdonald always denied this, the order — on its face — shows a judicial determination. The order itself does not show any notation that Macdonald, by its trial counsel, agreed to such a determination. Furthermore, the voluminous record filed in this case shows that counsel for Macdonald, throughout the proceedings, asserted that trial court had no jurisdiction in the litigation. We find that Macdonald never consented to any portions of the order and that a judicial determination is involved which is reviewable.

Rao also asserts that had the order not been entered, it (Rao) would have suffered a forfeiture and irreparable harm for which it had no adequate remedy at law. The contract between the parties provided that:

“Should the Sub-contractor (Rao) fail to prosecute said work or any part thereof with promptness and diligence, or otherwise violate the terms of this agreement, the General Contractor (Macdonald) shall be at liberty, after three (3) days’ written notice to the Sub-contractor, to provide such labor or materials as may be necessary to complete the work, and to deduct the cost and expense thereof from any money then due or thereafter to become due to said Sub-contractor under this agreement, and the General Contractor shall be at liberty to take possession, for the purpose of completing the work included in this contract, of all materials, tools, scaffolding and appliances thereon, and to employ or contract with any other person or persons to finish the work and provide the materials therefor.”

The trial judge held that this provision was unconscionable in that the General Contractor alone made the decision as to when it should be invoked. The court also characterized it as a vicious forfeiture and said that the termination notice was insufficient since Macdonald did not advise Rao regarding the date on which the items would be seized.

In our opinion this provision was not unconscionable but rather impliedly recognized that the general contractor had a separate contract with the owner of the premises and simply could not afford a delay in construction caused by a dilatory subcontractor or one who otherwise violated the terms of the contract. The. subcontractor was to be given three days’ written notice apparently in the hopes that it would correct any deficiency so that the general contractor would not have to make any change. If the subcontractor was of the opinion that the general contractor was acting arbitrarily, it would have a remedy at law for breach of contract, but construction work would continue.

As to the notice of termination, it did state that Macdonald, pursuant to its contract with Rao, would take possession of the items at the site for the purpose of completing the work. The contractual requirement of three days’ written notice was thus reasonably read into the termination notice. Furthermore, Macdonald did not seize Rao’s property at the site until three days had passed and only after Rao had laid off most of its employees. The termination notice served on Rao was proper here.

Regarding the forfeiture point, we have neither been cited to nor have we found any Illinois case defining a forfeiture within this factual setting. The Colorado Supreme Court in Woitchek v. Isenberg, 151 Colo 544, 379 P2d 392, 394 (1963), defined a forfeiture as an involuntary divestiture of specific property without compensation in consequence of some default or act forbidden by law. Applying that definition to the instant case, we are of the opinion that no forfeiture is involved for two reasons: (1) Macdonald was given the right to possess only temporarily Rao’s property for the limited purpose of completing the electrical sub-contract work; and (2) under the contract, such a use served to mitigate damages as Rao was to be compensated, in the end, for the use of its materials, supplies, and tools found on the site. By using Rao’s property, Macdonald would not have to reorder, construction would hopefully not be greatly delayed, and the costs of completion would be reduced. Since another provision of the contract provided that in the event Macdonald had to take over the electrical subcontract, Rao would receive, after construction was completed, the unpaid balance of the amount to be paid it under its contract, less the expenses incurred by the general contractor for costs of completion, it will be seen that Macdonald, by using Rao’s materials, supplies, tools and vehicles on the site, would be reducing the costs of completion, thereby serving to increase the sum to be paid to Rao eventually. Hence, Rao is not the victim of a forfeiture but is gaining the benefit of a provision concerning mitigation of damages. The cases upon which Rao chiefly relies, Handzel v. Bassi, 343 Ill App 281, 99 NE2d 23 (1951), and Illinois Merchants Trust Co. v. Harvey, 335 Ill 284, 167 NE 69 (1929), do involve examples of the use of equity to enjoin forfeitures since the involuntary divestiture of property without compensation in consequence of a default was involved in the cited cases. Since we hold that no forfeiture is involved in the instant litigation, the cases are not persuasive.

The temporary injunction order is reversed, any writs issued thereunder are dissolved, and the cause is remanded with directions that it be transferred to the Circuit Court of Cook County — Law Division, for further proceedings.

Reversed and remanded with directions.

McCORMICK, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Pahl, Defendant-Appellant.
    Gen. No. 53,783.
    First District, Second Division.
    April 28, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

At a bench trial the defendant was found guilty of aggravated battery and sentenced to a term of four to ten years in the penitentiary. Although the defendant had been charged with both attempted robbery and aggravated battery, and although the trial judge said there would be a finding of guilty on both counts, no judgment was ever entered on the charge of attempted robbery. The State’s Attorney admits in his brief that “The common-law record indicates that the defendant was found guilty only of aggravated battery.” We are asked, however, to resolve the conflict between the common-law record and the report of proceedings and to find that the defendant was guilty of both charges. This matter is not properly before us.

In People v. Williams, 27 Ill2d 327, 189 NE2d 314, the common-law record indicated that the defendant was entitled to be discharged under the four-months statute. The State argued that the defendant himself had requested continuances and consequently waived his right to the protection offered by the statute. In the opinion the court stated at page 329: “Although the common-law record imports verity and is presumed correct, where other facts appearing in the bill of exceptions are contradictory, this court will consider the matter upon the record as a whole.” Apparently, the presumption that the common-law record is correct is called into question only when by way of a bill of exceptions (or, under today’s procedures, a post-trial motion) is the validity of some aspect of the common-law record questioned. Unless that is done the presumption that the common-law record is correct, governs. In the instant case there was no post-trial motion regarding this aspect, and therefore, it is improper to impeach before this court the verity of the common-law record. The State had the burden to bring the alleged error to the attention of the trial court.

We believe the rule laid down in the Williams case is applicable only in those situations where the alleged inconsistency concerns some matter other than the very question of whether or not a judgment had been entered. When the common-law record does not show a judgment there is nothing from which an appeal can be taken, and unless, upon a proper showing the error is rectified by a nunc pro tunc order, this court cannot consider the nonexistent judgment. We find that the trial court’s jurisdiction over the attempted robbery charge was not cut off by the defendant’s filing a notice of appeal, since appeals are being brought only from appeal-able orders or judgments entered by the trial court. In the instant case no appealable order or judgment was entered with reference to the attempted robbery charge. The defendant was adjudged guilty of aggravated battery and nothing else.

The record shows that the complaining witness, William Gray, testified that in the early morning hours of February 26, 1967, as he sat in his car in a parking lot in Calumet City, defendant Pahl knocked on the window and asked to borrow a jumper to start his car. Gray got out to get it from the trunk and the defendant said, “This is a holdup, give me your money.” Gray hesitated, and the defendant struck him, knocking a hole in his head and breaking his nose and cheek bone. When Gray tried to fight back, two other men came to defendant’s assistance, and the three men beat Gray and broke his shoulder. The three assailants then went to their car and brought it back to the scene. Defendant Pahl got out of the car, but started running down an alley when he saw that police had arrived.

Gray testified that his shoulder had never been injured before the beating; that as a result of the beating he was hospitalized for eleven days and surgery was required. He testified on cross-examination that after the defendant struck him they grappled for a few minutes, and that when the defendant got loose from him someone struck Gray on the shoulder. He did not know precisely where the defendant was at that moment since “licks were flying from every direction”; however, he stated that the defendant was not back at his car or on the way to it. He could not pinpoint where any one of the three was, but he was aware of the presence of them all, and later all three left together after the beating. Gray also noted that after the first blow had been struck by Pahl and before any further beating occurred, he wiped his eyes to clear his vision and discovered that his face was bleeding.

Defendant Pahl testified on his own behalf that two men and two women were with him in his car on the evening in question; that he approached Gray’s automobile and asked him for a dollar because his car needed gas. He stated that Gray was drunk and became angry. (Gray had testified that he had had two beers that evening.) The defendant further testified that Gray jumped out of the car and reached for him; that the defendant struck him in the forehead; and that Gray fell against his car, grabbing at defendant’s ankle as he started to run. The defendant, after freeing himself, ran past his car in which he saw the two men who had been with him earlier, and was soon stopped by the police.

Defendant first argues that he was not proved guilty beyond a reasonable doubt. Aggravated battery is defined in Ill Rev Stats 1967, c 38, § 12-4 (a) as a battery causing “great bodily harm, or permanent disability or disfigurement.” Defendant urges that the State has failed to prove beyond a reasonable doubt that the injuries sustained by Gray justify the conclusion that they were caused by an aggravated battery instead of by a simple battery. Gray had testified that defendant’s blow knocked a hole in his head and broke his cheek bone. In his brief the defendant suggests that Gray is not competent to testify concerning fractured bones; therefore, his testimony is not sufficient to sustain a finding that he sustained “great bodily harm.”

While it would be helpful to have included a doctor’s report or testimony in the record regarding the nature and extent of the injuries in question, such evidence is not required in all cases. Gray’s testimony regarding his injuries was not objected to in the trial, and the objection to it is made for the first time in this court. Defendant’s failure to object to Gray’s testimony would be sufficient reason to reject defendant’s argument on this point. However, there was corroborating testimony.

It stands as admitted that Gray was hospitalized for eleven days as a result of the beating; that surgery was performed on Gray’s right shoulder; that the arresting officer had visited Gray in the hospital within an hour after the beating and that Gray “was bleeding about the head, his nose, and he complained of his shoulder hurting him very bad.” All of these elements lend credence to Gray’s uncontradicted testimony regarding the severity of his injuries. The defendant argues that “the record is barren of any evidence establishing a causal connection between the victim’s shoulder injury and hospitalization and the single blow struck by Raymond Pahl.” We believe it entirely proper to consider the testimony regarding the shoulder injury, and that no showing was required to prove that the shoulder injury was related to defendant’s blow. The State was not required to prove it was Pahl who actually inflicted the injury before the fact of the injury could be used against Pahl.

Under Illinois law (Ill Rev Stats 1967, c 38, § 5-2 (c)), one is accountable for the criminal activities of another when

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Just as it was held in People v. Rudecki, 309 Ill 125, 140 NE 832 (1923), that a shot fired by one member of the mob carried its criminal consequences for all members, so, too, in the instant case the blow of any one of the three men carried its consequences to all members of the group, since all participated in the criminal activity. Gray testified that Pahl was one of the three who attacked him, and the criminal act of any one of the other two is attributable to Pahl.

The facts in the instant case are quite different from those in People v. Sparling, 83 Ill App2d 104, 426 NE2d 54, in which the defendant was charged with rape and aggravated battery. The court reversed both convictions. In that case, concerning the aggravated battery charge, there was testimony that the woman had sustained injuries which required surgical attention, but there was no testimony that the defendant had inflicted the injuries in question. The complaining witness testified to no acts of physical violence committed by the defendant, and the attending physicians offered no opinions as to the cause of the injuries. Hence, the court was left to conjecture and speculation as to the cause of the injuries, and reversed the conviction of aggravated battery since there was no proof that the injuries were the result of any criminal act at all.

In the case before us, however, the complaining witness testified that the defendant struck him in the face, causing severe injuries, and that the defendant, aided by two other men, continued to beat him. Under these facts there was sufficient proof that the defendant had committed aggravated battery upon Gray because he had struck him, and also because of his criminal association with the two other men who also beat Gray.

The defendant argues that since Gray’s testimony was contradicted it was not worthy of belief. The alleged contradictions involved such questions as whether Gray was first struck while he was inside or outside the car; whether Gray intended to allow the defendant to use his jumper cables, and similar matters. Much of the supposed impeaching testimony comes from the police officer who had visited Gray in the hospital the night of the occurrence. He testified to what Gray had told him; that Gray was bleeding and complaining of pains in the shoulder. It would not be justifiable to blame the victim for failing to give an absolutely lucid account of events under such conditions. Further, the alleged inconsistencies are so unimportant that even granting them to be true, it could not be said that the witness was impeached and his testimony unworthy of belief.

The defendant also argues that the trial judge misunderstood the evidence and entered a guilty finding on that basis. The only “misunderstanding” cited was the court’s statement that the defendant had testified he told the victim he was out of gas, when the actual testimony was that the defendant had said he was almost out of gas. We cannot understand how this statement is at all relevant to the issue of defendant’s guilt or innocence, or how reliance on the “misunderstanding” could have resulted in any different verdict. In any case, the trial court’s judgment — not the reasons assigned for the judgment — is up for review. If the judgment is correct this court will not disturb it, whether the judgment was arrived at for the right or wrong reasons. Campbell v. Powers, 139 Ill 128, 135, 28 NE 1062 (1891); People v. Thomas, 15 Ill2d 344, 348, 155 NE2d 16; People v. Garrett, 115 Ill App2d 333, 340, 253 NE2d 89.

Finally, we are asked to invoke our authority under Supreme Court Rule 615(b) (4) and to reduce the sentence imposed by the trial court. By statute the offense of aggravated battery is punishable by a sentence of from one to ten years; in the instant case the defendant was sentenced to four to ten years. The power to reduce a sentence is preserved for those cases in which the punishment imposed is excessive. Considering the nature of the particular crime and the facts and circumstances with reference to the brutality involved, the potential for rehabilitation, and any other relevant questions in the case before us, we believe that a reduction of sentence by this court is not warranted, and that our interference with the sentence would be improper.

The defendant’s conviction for aggravated battery is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    John M. Nagle, Plaintiff-Appellee, v. Civil Service Commission, State of Illinois, and Department of Labor, State of Illinois, Defendants-Appellants.
    Gen. No. 53,307.
    First District, Third Division.
    May 7, 1970.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Bruce J. Finne, Assistant Attorneys General, of counsel), for appellants.

      L. H. Vogel, Vogel & Vogel, of Chicago (David F. Holland, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

This is an appeal by defendants Civil Service Commission of the State of Illinois and the State Department of Labor from a judgment of the Circuit Court reversing a decision of the Commission. Plaintiff, John M. Nagle, brought the action against defendants for administrative review of the Commission’s decision discharging him from his position as a hearing officer for the Department of Labor. Defendants appeal the reversal, contending that there was substantial evidence to support the decision to discharge plaintiff for failure to report for hearings that he was scheduled to conduct. Plaintiff was also charged with excessive absenteeism and failure to give proper notice of those absences, but the Commission dismissed those charges.

On October 17, 1962, plaintiff, an attorney, commenced work in the Appeal Section of the Unemployment Compensation Division, Bureau of Employment Security, Department of Labor, State of Illinois. On January 1, 1965, plaintiff was transferred to the Rules and Regulations Section of the same division. After a period of training he was assigned as a hearings referee in that section, which conducted hearings concerning claim disputes under the Illinois Unemployment Compensation Act. Plaintiff’s duties consisted of holding such hearings and writing opinions thereafter. All hearings referees were assigned to the Chicago office, but conducted hearings in other parts of the State two or three times a year.

Plaintiff scheduled sixteen such hearings to be held in Peoria during the week of May 2 through May 6. The Department of Labor’s office used in Peoria for the hearings was not part of the Rules and Regulations Section, but space was made available by another section for the scheduled hearings. Plaintiff had the responsibility to select the cases, arrange to have notices sent out to the participants and also to forward a written schedule and itinerary of the hearings to the receptionist in the Peoria office. Additionally, plaintiff on April 10 made hotel reservations for his stay in Peoria. Plaintiff was not required to report to anyone in Peoria, and was not under the supervision of anyone in Peoria.

Plaintiff was scheduled to leave for Peoria on Monday May 2. He testified that he was ill during the preceding weekend, but believed that he could still make the trip. On Monday morning at 7:00 a. m., he left his home with some luggage and checked it at the railroad station. The train for Peoria was scheduled to leave at 9:00 a. m. He went to his office and picked up a tape recorder, an audiograph and a briefcase containing records and statutes, and returned to the railroad station. He testified that he planned to return to the office to pick up the necessary files, but became ill at the station. When he realized that he could not complete the trip, he made a long-distance call to the office in Peoria to say that he would be unable to conduct the hearings on that day. He talked to the Employment Service manager in Peoria. Plaintiff also called the Peoria hotel in order to cancel his reservation for that day. Plaintiff testified that he remained ill throughout the week, and called Peoria again on Tuesday to say that he would be unable to conduct the hearings. This time he talked to a clerk-typist who was acting as a switchboard operator. When plaintiff called Peoria again on May 4, he was informed by a woman in the auditor’s section that the hearings had been cancelled for the week. Plaintiff’s supervisor learned on Thursday that plaintiff had made these long-distance calls to Peoria during the week. Plaintiff did not call his supervisor during his illness, but reported back to work on Thursday and was asked to resign. There were no regulations or directives in the section which established methods for postponements or continuances of hearings.

Plaintiff’s supervisor testified that on Monday morning May 2, he was informed by one of the office clerical personnel that plaintiff did not leave the office until after 9:00 a. m., the time at which the train for Peoria departed. He went to plaintiff’s office and noticed that although the audiograph was gone, the case files were still there. Later that morning he called a supervisor of another section in Peoria, an old friend, and as a result of their conversation, the hearings to be conducted by plaintiff were cancelled. It would take another hearings referee at least a half day studying each file in order to familiarize himself sufficiently to conduct the hearings in place of plaintiff.

Two lady employees of the Department of Labor testified that plaintiff left the office on May 2 after 9:00 a. m., and that he did not tell either of them that he was ill.

The hearings officer for the Civil Service Commission found that plaintiff had a duty to notify his supervisor or his office that he would not appear for the scheduled hearings. The hearings officer further found that plaintiff’s direct notification to the Peoria office did not alleviate that duty, that his failure to notify his supervisor constituted nonfeasance of a basic duty and that therefore he was guilty of failure to report for scheduled hearings, and should be discharged. The Commission adopted these findings and discharged plaintiff.

Findings of fact by an administrative agency are to be considered as prima facie true and correct. Administrative Review Act, Ill Rev Stats 1969, c 110, § 274. And these findings will not be disturbed unless they are against the manifest weight of evidence. John Sander, Inc. v. Donnelly, 53 Ill App2d 172, 203 NE2d 20 (1964). We recognize also that a court cannot substitute its judgment for that of the administrative agency, and will not overturn administrative findings unless they are without substantial foundation in the record. Schwarze v. Board of Fire and Police Com’rs, 46 Ill App 2d 64, 196 NE2d 724 (1964); Board of Education v. County Board of School Trustees, 32 Ill App2d 1, 176 NE 2d 633 (1961). However, the issue on this appeal is whether there is sufficient evidence in the record to support the Commission’s findings that, in failing to notify his supervisor, plaintiff failed to properly report for hearings which he was scheduled to conduct. We believe that the trial court was correct in holding that the evidence failed to support the findings of the Commission.

While defendants argue in this court that the testimony of the two coemployees that plaintiff left the Chicago office after 9:00 a. m. without mentioning that he was ill, plus other evidence presented to the Commission, impeached his testimony of illness, that argument is not supported by the holdings of the Commission. The Commission made no finding as to whether plaintiff, in fact, was ill. The Commission found only that plaintiff’s violation consisted of failure to notify his supervisor of his inability to conduct the hearings, and in that failure he breached a duty. Accordingly, the testimony concerning plaintiff’s illness becomes irrelevant to the question of notice to the supervisor, the only issue on this appeal.

It is undisputed that plaintiff did not notify his supervisor of his illness until Thursday, May 5. However, we find that in announcing that plaintiff breached a duty by not informing his supervisor of his office of his illness, the Commission was imposing a duty which was nonexistent. There were no directives or regulations in the Department which established methods for postponements or cancellations of the hearings. Plaintiff, an attorney, was charged with the responsibility of selecting the cases to be heard and the dates and times of those hearings. It was plaintiff who gave notice of the hearings to the parties involved and who forwarded a copy of the hearings schedule to the office in Peoria. Plaintiff made his own hotel reservations and his own travel arrangements. The evidence disclosed that on such short notice, no other referee would have been able to conduct the hearings. Therefore, absent any previous regulations or instructions to the contrary, it was proper that plaintiff personally would arrange to have the hearings cancelled. Moreover the propriety of plaintiffs conduct was demonstrated by the fact that his supervisor adopted the same method when he called a friend in Peoria employed in another section to cancel the hearings. We find no merit in defendants’ contention that plaintiff could discharge his responsibility properly only by contacting his own agency or supervisor. The trial judge properly held that the findings of the Commission had no substantial foundation in the evidence.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip M. Hoffmann, Otherwise Called Phillip M. Hoffman, Defendant-Appellant.
    Gen. No. 53,348.
    First District, Third Division.
    May 7, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the

Phillip Hoffman was found guilty in a non jury trial of conspiracy to commit an abortion and was placed on five years’ probation. He contends that the trial court concluded that he was guilty before all of the evidence was heard and committed error by admitting hearsay evidence at the trial.

The complaining witness was a single girl. In November 1966 she told a friend, Roy Longnecker, that she was pregnant and did not want the child. Longnecker said that he knew a fellow employee who might help her out. The father of the child, her doctor, and Longnecker were the only persons who knew of her pregnancy.

Longnecker testified that shortly afterwards he talked to Hoffman, who worked at the same place he did, and told him that the girl was pregnant and did not want to have a baby. Hoffman said that he knew of some people who would perform an abortion for $500, payable in cash. Longnecker gave Hoffman the girl’s telephone number and Hoffman said she would be contacted.

Longnecker reported this conversation to the complaining witness and told her to expect a telephone call. A few days later a man phoned her and asked if she was pregnant. He said his name was Phil and that he knew two people, a man who was a pharmacist and a woman who was a doctor, who would perform the abortion. He told her it would cost $500, and to put the cash in an envelope.

In the late evening of December 16th a man came to her apartment, identified himself as “Stan” and she gave him an envelope containing $500. He said he would return and he did so a few minutes later accompanied by a woman. The woman inserted a catheter in her uterus, told her to wait for a few hours, that she would go into labor and it would be all over.

Sometime after this Hoffman gave Longnecker $20 and told him there would be more next time. Longnecker gave the money to the complaining witness.

The attempted abortion was unsuccessful, and the complaining witness telephoned Longnecker. Longnecker relayed the information to Hoffman and told him that the abortion would have to be performed again. Hoffman replied, “Okay.”

On December 23rd the same man and woman came to the complaining witness’ apartment and again attempted an abortion. When the miscarriage was still not accomplished, she told Longnecker, who informed Hoffman that the abortion would have to be performed once more. Hoffman again replied, “Okay.” On January 4, 1967, the man and woman returned to her apartment and for the third time attempted to abort her. She hemorrhaged, became ill, consulted a doctor and was hospitalized.

The defendant complains that the trial court improperly formed a conclusion of his guilt before all of the evidence was presented. During the direct examination of the complaining witness, the trial court sustained an objection by the defendant and the prosecutor asked to be heard in chambers. During the ensuing discussion counsel for the defendant argued that certain testimony of the complaining witness had been erroneously admitted. The court replied, “Well, the testimony received so far, in my opinion, has been relevant and properly admitted.” Counsel for the defendant then objected to the telephone conversation related by the complainant in which she said the caller identified himself as “Phil.” The court responded, “Well, I think that is proper and I think there is testimony as to the defendant being the caller, I’m satisfied of that.”

The remarks were not inappropriate to the proceeding. They were made in explanation of the court’s rulings and in chambers in a case tried without a jury. The observation that the telephone call was made by the defendant was an allowable conclusion to be drawn from the evidence heard up to that point. The conclusion was not irrevocable and it did not make useless the presentation of evidence in the defendant’s behalf.

The defendant also argues that hearsay evidence was introduced which prejudiced his cause. During direct examination the complaining witness testified to talking with Longnecker about arrangements for the abortion. She asked him the name of the person he had spoken to and the following conversation took place:

. . he said, ‘Phil.’ I said, ‘Phil who?’ And he didn’t tell me at that time, he just said ‘Phil.’ ”

Later she testified to a conversation she had with Longnecker after the first abortion attempt:

“. . . I asked him who these people were [who performed the abortion]. And he said he didn’t know . . . but he did know Phil. And I said, ‘Well, who is Phil ?’ And he stated, ‘Phil Hoffman. He’s a fellow I work with.’ ”

Testimony in court of a statement made out of court, offered as an assertion to show the truth of the matters asserted and thus resting for its value upon the credibility of the out-of-court asserter, is hearsay evidence and inadmissible. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963). The rule is inapplicable, however, if the same matter has been competently testified to by the out-of-court asserter himself.

We have dealt with this problem in other cases. In People v. Burks, 105 Ill App2d 112, 245 NE2d 120 (1969), the defendant objected to testimony by a police officer that the victim of a rape exclaimed, "That is the man right there” upon seeing the defendant after her assault. Prior to his testimony, the prosecutrix had . testified that she had pointed out the defendant to the police as the man who raped her. We held that no error was committed since the victim confronted the defendant in court and was subjected to cross-examination. In People v. James, 109 Ill App2d 328, 248 NE2d 777 (1969), the victim of a robbery testified to identifying the defendant and a stolen watch in the police station shortly after the offense. Later in the trial, a police officer testified to the same identification. We noted that the identification testimony by the police officer merely repeated what already had been proven by the victim’s testimony and held it harmless. See also People v. Smith, 105 Ill App2d 8, 245 NE2d 23 (1969) and People v. Poole, 121 Ill App2d 233, 257 NE2d 583 (1970).

In the instant case Longnecker testified to his conversations with Hoffman, and identified him as the person who agreed to procure the abortion. He was subjected to cross-examination and an attempt was made to impeach his testimony. The statement which was elicited from the complaining witness repeated Longnecker’s assertion that Hoffman was involved in procuring the abortion. No new evidence was presented by this testimony and its trustworthiness and accuracy had been tested by the cross-examination of Longnecker. The court did not err in admitting the testimony.

A person commits an abortion when he uses an instrument, medicine, drug or other substance with the intent to procure a miscarriage of any woman. Ill Rev Stats 1965, c 38, par 23-1. A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense and he or a co-conspirator commits an act in furtherance of the conspiracy. Chapter 38, par 8-2(a). The evidence of the State was uncontradicted. It proved that the defendant conspired with two persons to commit an abortion; he arranged for the first attempt and for two others after he was told the previous attempts had failed. His guilt was established beyond all reasonable doubt.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harold L. Brown, Defendant-Appellant.
    Gen. No. 53,393.
    First District, Third Division.
    May 7, 1970.
    Rehearing denied May 28, 1970.
    William A. Cain, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Michael Scott Cisney, and Lawrence C. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Holt, Defendant-Appellant.
    Gen. No. 53,985.
    First District, Third Division.
    May 7, 1970.

      D. Adolphus Rivers, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Dempsey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Henry Holt was charged with the crime of armed robbery. After a bench trial, he was convicted of that crime and sentenced to a term of two to ten years. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt.

On August 18, 1967, Robert Carpenter, a bus operator for the Chicago Transit Authority, was seated in his bus at the terminal located at 43rd Street and Oakenwald, Chicago. Since he was on a bus schedule, Carpenter was sure that it was approximately 4:35 p. m. when two men boarded the bus. One of the men put a razor to Carpenter’s neck, and told him that it was a stickup. The other man, identified as defendant by Carpenter, took approximately ten dollars from the victim’s shirt pocket. Carpenter recognized defendant as someone he knew casually, although he could not recall his name during the robbery. He testified that defendant was also a Chicago Transit Authority bus operator working out of the same depot, and that he had known him for about six years. Carpenter testified that while he recognized defendant on the bus, he did not remember him as a fellow employee until he later saw him at the hospital, and defendant reminded him that he was also a bus operator. Carpenter testified that he told one of the police officers who came to the scene that he knew one of the robbers prior to the incident, but did not mention it to the investigating officers. During the robbery, Carpenter told defendant not to rob him, that he knew him. When that was said, the other robber pulled Carpenter’s glasses off and started to cut and beat him, stating that he would not identify anyone because he would be killed. A struggle ensued, and Carpenter reached for a phone in the bus to advise the depot that there was a robbery, and the two men fled. Carpenter testified that defendant had on a blue sweater, gray pants and tennis shoes, and denied that he ever told anyone that defendant was wearing green pants and brown shoes at the time of the robbery.

After the robbery, Carpenter was taken to one hospital, where his wounds were cleaned and temporarily bandaged. He was then taken to Mercy Hospital, where he received 43 stitches for the injuries received. While Carpenter was being interviewed by the investigating police officers, defendant walked into the emergency room and offered to help find the robbers, and the police arrested him.

William Morley, one of the investigating police officers, testified that he had received a description of the two robbers from the victim at the hospital. Defendant then walked into the emergency room, and was identified by the victim as one of the robbers. Morley testified that defendant had been drinking prior to his arrest. He also testified that a report prepared by another police officer who was called to the scene of the robbery stated that the victim had described one of the robbers as wearing a gray cap and green shirt, and that the other one was wearing green pants and brown shoes.

Defendant testified that he had been at a tavern located at 51st and Cottage Grove all afternoon on the day in question, and stayed there until about 6:00 p. m. That evening, when he learned that a fellow bus driver had been robbed, he went to the hospital to see if he could be of any assistance.

Officer James Days of the Chicago Police Department testified for the defense that he went on duty at 3:00 p. m. and arrived at his post about 3:50 p. m. on the day in question. As part of his beat, he walked by or into the tavern located at 5141 Cottage Grove approximately every 20 or 25 minutes. He saw defendant in the tavern at about 4:05 p. m., and again at approximately 4:30 or 4:35 p. m.

On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt. The sufficiency of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the trier of fact with a superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor on the stand, and his judgment will not be disturbed upon review unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963). And an identification by one witness, if it is positive and he is credible, is sufficient to prove defendant guilty beyond a reasonable doubt. People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962).

In the instant case, the victim had an excellent opportunity to observe his robbers, and his identification was positive and certain. That identification was further strengthened by the fact that he recognized defendant as someone he knew prior to the robbery, and in fact told defendant not to rob him because he knew him. When he subsequently confronted defendant in the hospital, the victim became aware that defendant was also a bus operator, and that he had known him for some time.

Defendant points out no internal discrepancies in the victim’s testimony, but argues that there was a discrepancy between his description of the robbers’ attire made at the scene and his trial testimony as to what defendant was wearing at the time of the robbery. The victim denied ever telling anyone that defendant was wearing green pants and brown shoes during the robbery. Moreover such an inconsistency at most is minor, and would not be sufficient of itself to create a reasonable doubt of defendant’s guilt.

Defendant also contends that the victim’s credibility was affected because he did not tell the police officers that he knew defendant prior to the incident and that they were fellow employees of the C. T. A. The victim, in fact, did testify that he informed a police officer at the scene that he knew defendant. His failure to again relate that fact to the investigating officers at the hospital is understandable, since at that time he was receiving treatment for injuries so serious as to require 43 stitches. The victim also testified that while he recognized defendant as a casual acquaintance, he did not realize that defendant was a co-worker until he was reminded of that fact by defendant at the hospital. This testimony in no way affected the complaining witness’ credibility, as it is entirely reasonable to recognize a person, but to be unaware of the origin of that recognition.

Defendant finally argues that the alibi testimony presented in his behalf was sufficient to create a reasonable doubt of his guilt.

Any conflicts in testimony were for the trial court to resolve, and it was not obliged to believe alibi testimony presented by the defense. People v. Jackson, 95 Ill App2d 28, 237 NE2d 858 (1968). The trial judge heard the alibi defense testified to by defendant and by the police officer. The judge concluded that the defense was not worthy of belief and we cannot say that such a conclusion was erroneous in view of the clear and positive testimony of the victim. It should also be noted that while the police officer was positive in stating the exact time at which he saw defendant in the tavern on the day in question, he was vague as to whether he himself was inside or merely walking by the tavern at the time.

We find that defendant was proved guilty beyond a reasonable doubt, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J„ concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Carrie Moore, Clara Thomas, Defendants-Appellees.
    Gen. Nos. 54,134, 54,135.
    First District, Third Division.
    May 7, 1970.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.

      Allan A. Ackerman, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

On October 3, 1968, the defendants Carrie Moore and Clara Thomas were jointly indicted for gambling in violation of the statute (Ill Rev Stats, c 38, § 28-1 (a) (8) (1967)). On their motions the trial court quashed a search warrant and suppressed the evidence thereby seized. This is an appeal by the State pursuant to Supreme Court Rule 604(a) (1) and the only question presented is whether or not the warrant described the place to be searched with sufficient particularity.

Chicago police officers assigned to the Gambling Unit obtained a search warrant on October 3, 1968, which described the premises to be searched as the “2nd floor apartment at 30 East 69th Street, Chicago, Illinois.” Defendant Clara Thomas, who was arrested by the police officers executing the search warrant, testified that the search was conducted in a first-floor rather than a second-floor apartment. She stated that at the entrance to the building there is a door which opens to approximately eight stairs. At the top of the stairs is a landing and two first-floor apartments. She was arrested in the apartment situated to the west of the stairs.

Detective William Mitchell testified that he executed the search warrant in a second-floor apartment bearing the address stated in the warrant, 30 East 69th Street. He stated that at ground level there is a step, a doorway and two bells. Behind the door there is a staircase of fifteen to eighteen stairs leading to two apartments, designated by him as second-floor apartments. He further testified that the apartment located to the west of the stairway had the number 30 on its door, signifying its address, whereas the apartment to the east of the stairs was numbered 32. On October 2, 1968, he observed a police informer climb the stairs and disappear from sight as he turned to the west, that is to say, toward the apartment numbered 30. Mitchell testified that he could only have disappeared into the apartment located on that side of the building.

Both our Federal and State Constitutions require that a search warrant particularly describe the place to be searched. A description in a warrant is regarded as legally sufficient if the police officers executing the warrant can, with a reasonable effort, identify the place intended. Steele v. United States, 267 US 498 (1925); People v. Watson, 26 Ill2d 203, 186 NE2d 326; People v. Mayfield, 69 Ill App2d 388, 217 NE2d 100.

In the Watson case our own Supreme Court held that a description is adequate if the place to be searched is sufficiently recognizable from the description in the warrant to enable the officer to locate the premises with definiteness and certainty. The warrant in that case authorized the search of apartment number 604 of the building located at 2300 South State Street, Chicago. There was no such address and the police officers executed the warrant by searching apartment 604 in the building at 2310 South State Street. In upholding the warrant the court relied on what it termed “other identifying factors which removed any doubt or ambiguity from the description.” The factors enumerated by the court were that the address contained in the warrant would refer the officers to the first building on the west side of State Street, that 2310 was the first building and that this corner building was identified by an informer as the only building on the southwest corner of the intersection of 23rd and State Streets. Further, that building contained an apartment numbered 604. The court held that these surrounding facts rendered the inaccuracy in the warrant description of no consequence.

In the instant case the number 30 was on the door of the apartment searched. There is no evidence whatsoever of any other apartment so numbered. On the contrary, the testimony of officer Mitchell that there were only two doorbells at ground level is evidence that the only two apartments in the building were numbers 30 and 32. The burden of proving that a search is unlawful is on the defendants. (Ill Rev Stats, c 38, § 114-12(b) (1969).) To that end one witness was presented whose testimony, it is argued, establishes that the actual search was conducted in a first-floor apartment. The fact that the apartment searched was separated from the ground level by a flight of stairs explains its characterization in the warrant as a second-floor apartment. We need not decide whether that characterization is a technically correct one, since the warrant sufficiently identified the premises to the exclusion of all others and that is all the law requires. People v. Watson, 26 Ill2d 203, 186 NE2d 326; People v. Holton, 326 Ill 481, 158 NE 134; People v. Mayfield, 69 Ill App2d 388, 217 NE2d 100. We find that the description, “30 East 69th Street” described the premises to be searched with sufficient precision to enable the police officers to identify the place intended.

The order of the trial court quashing the search warrant and suppressing the evidence seized is reversed and the cause is remanded with directions to deny the motions to quash the search warrant and suppress the evidence and for such other and further proceedings as are consistent with the views herein expressed.

Orders reversed and cause remanded with directions.

DEMPSEY, P. J. and McNAMARA, J., concur.


text:
    People of the State of Illinois ex rel. Merle Symonds, Richard Madal and Raymond Schuda, Plaintiffs-Relators-Appellees, v. James V. Gualano, Defendant-Respondent-Appellant.
    Gen. No. 54,232.
    First District, Third Division.
    May 7, 1970.

      Geocaris, Sneider and Troy, of Chicago (Richard J. Troy and Ronald N. Dubner, of counsel), for appellant.
    Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago (Paul Noland and John V. Ryan, III, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from an order, entered pursuant to the mandate of this court, ousting the defendant-respondent from the offices of president and trustee of the Village of Justice, member of the Justice Zoning Board of Appeals and member of the Justice-Willow Springs Water Commission. The issue presented is whether the restoration of the defendant’s rights of citizenship, granted by the Governor of Illinois, removed his ineligibility to hold public office created by his prior convictions for an infamous crime.

In 1935 and 1943 the defendant pleaded guilty in the Federal courts to several charges of mail fraud. In 1961 he was elected president of the Village of Justice and was reelected to that office in 1965. After the 1965 election, the plaintiffs-relators, who are residents, voters, taxpayers and trustees of the village, brought a quo warranto action seeking to oust him from the position of president and the other two public positions he then held. They contended that mail fraud was an infamous crime and that his convictions for that offense barred him from holding public office. Article IV, section 4, of the Constitution of Illinois and chapter 38, par 124-2 (a), of the Ill Rev Stats 1965. The defendant argued that mail fraud did not constitute an infamous crime as defined by the Illinois legislature. Ill Rev Stats 1965, c 38, par 124r-l. Both sides sought summary judgment and the trial court found for the defendant.

On appeal this court held that a conviction for the use of the mail to defraud was a conviction for an infamous crime under the laws and constitution of our State. People ex rel. Symonds v. Gualano, 97 Ill App2d 248, 240 NE2d 467 (1968). At the conclusion of our opinion we stated:

“The respondent’s last conviction took place a quarter of a century ago, his probation was satisfactorily discharged and, presumptively, his life during the intervening years merited the trust the citizens of the Village of Justice imposed in him. However, the language of the constitution is absolute and makes no provision for a mitigation of its prohibition with the passage of time. The statute provides for the restoration of the rights of citizenship if there is an appropriate pardon. But the respondent has not been pardoned and his rehabilitation, which deserves commendation, does not redound to his favor insofar as the right to hold public office is concerned.”

Following the issuance of the opinion, the defendant petitioned the Governor of Illinois for the restoration of his rights. The Governor granted the petition and issued certificates which restored to the defendant “all his rights of citizenship.”

In the meantime, the plaintiffs had filed in the trial court a motion for a judgment of ouster in accordance with the mandate of this court. When this motion was called for hearing, the trial court permitted the defendant, over the objection of the plaintiffs, to file an amended and supplemental answer to the original complaint for quo warranto. The amended answer set forth the restoration of the rights of citizenship and the certificates evidencing the restoration were filed as exhibits. The answer prayed that the complaint for quo warranto be dismissed. Both sides submitted memoranda of law to the court after which the order was entered from which this appeal is taken.

The plaintiffs have moved to dismiss the appeal. They assert that the issue is moot since the judgment of ouster was entered on March 10, 1969, and the defendant’s successor as village president was elected on April 15, 1969, at the regularly scheduled election, for a four-year term.

The general rule is that where the issues involved in the trial court no longer exist, a court of review will dismiss the appeal. Johnson v. Board of Education of City of Chicago, 79 Ill App2d 22, 223 NE2d 434 (1967). This rule has been applied to appeals involving the right to hold office, if it appears that the term of office has expired. People ex rel. Morris v. Pettow, 243 Ill App 142 (1926). Although the defendant’s term of office as mayor expired and his successor has been elected and qualified, the case is not moot. The defendant was removed from office more than a month before his term expired. During that period he did not receive his salary; if the judgment of ouster was erroneously entered he might seek compensation for that period. People v. Bradford, 267 Ill 486, 108 NE 732 (1915); Kreitz v. Behrensmeyer, 149 Ill 496, 36 NE 983 (1894). Furthermore, the judgment also removed the defendant as a member of the Justice-Willow Springs Water Commission; his term ran until 1972. The collateral rights attendant upon his loss of both offices precludes the dismissal of the appeal for reason of mootness.

The substantive issue in the case arises from the apparent inconsistency between two provisions of the Constitution of Illinois, 1870. Article IV, section 4, states:

“No person who has been, or hereafter shall be, convicted of bribery, perjury or other infamous crime . . . shall be eligible ... to any office of profit or trust in this state.” Constitution of Illinois, 1870, Art IV, § 4.

Article V, section 13, states:

“The governor shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses, subject to such regulations as may be provided by law relative to the manner of applying therefor.” Constitution of Illinois, 1870, Art V, § 13.

The plaintiffs rely on Article IV, section 4, and the defendant on Article V, section 13. In the prior appeal, the plaintiff also relied on section 124 — 2 of the Code of Criminal Procedure of 1963. In the present appeal it is the defendant who cites section 124-2 to supplement his reliance on Article V, section 13. The statute, so favored by both parties, is as follows:

“(a) A person convicted of an infamous crime shall forever thereafter be rendered incapable of holding any office of honor, trust or profit . . . unless he or she is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.
“(b) Any time after a judgment of conviction is rendered a person convicted of an infamous crime may petition the Governor for a restoration of rights.” Ill Rev Stats 1967, c 38, § 124-2.

The plaintiffs maintain that the constitutional mandate of section 4, Article IV, prohibits a person, adjudged guilty of an infamous crime, from ever holding public office. The defendant maintains that section 13, Article V, is of equal stature with section 4, Article IV, and that to construe the latter as placing an absolute bar to a person’s ever holding public office would deny efficacy to the constitutional provision which grants pardoning power to the governor.

The parties agree that the issue has not been considered in any reported Illinois case. The issue has been considered, however, by the courts of a few states under varying constitutional and statutory provisions. Without exception, they have held that a pardon or a restoration of rights permits the holding of public office.

A case closely paralleling the present one is State ex rel. Cloud v. Election Board, 169 Okla 363, 36 P2d 20 (1934). The Oklahoma court was faced with a conflict between constitutional provisions similar to the ones in our constitution. Cloud, who had been convicted of a felony and pardoned by the governor, sought to run for the State House of Representatives. The Oklahoma constitution provided: “. . . nor shall any person be eligible to election to the Legislature, who has been adjudged guilty of a felony.” Another provision of the constitution vested pardoning power in the governor. The court noted the canon of constitutional construction that every provision should be construed, whenever possible, to give effect to every other provision, and examined the intent and purpose in granting the pardoning power. It concluded that the framers of the Oklahoma constitution meant to give full effect to the pardoning power, and found that the convicted felon, pardoned by the governor, was fully eligible to seek elective office.

The Cloud case differs from the instant one in that Cloud was pardoned whereas the defendant Gualano was restored to the rights of citizenship. Since Gualano had been convicted of Federal crimes, a pardon for those crimes could come only from the President of the United States. The Federal conviction, nonetheless, affected his right to hold public office in the State of Illinois and, as we have seen, such disqualification arises solely from section 4, Article IV of the Illinois Constitution.

The Court of Appeals of Kentucky encountered a similar problem in the case of Arnett v. Stumbo, 287 Ky 433, 153 SW2d 889 (1941). The defendant had been convicted and sentenced for a felony under Federal law. After he was discharged from parole, the Governor of Kentucky issued a “Certificate of the Restoration of the Rights of Citizenship.” Thereafter the defendant filed nominating petitions for the office of sheriff. Citizens and taxpayers challenged his candidacy on the ground that the law of Kentucky disqualified a person convicted of a felony from holding public office. The trial court ruled that, despite the lack of a presidential pardon, the governor’s Restoration of Rights removed the disqualification. In affirming this ruling the Court of Appeals quoted with approval from the brief of the appellee:

“It must be borne in mind that the disqualification which results from the conviction is not derived from the laws of the United States (or other convicting sovereignties), but rests solely upon the Constitution of Kentucky. ... It is a collateral consequence, not flowing from the offense, but resulting to the offender by reason of the Constitutional provisions alone. The right to vote and to hold office in a state comes from the State and is subject to its regulation and control. . . . The conviction is not affected by the Governor’s act; merely the incidental consequences (relating exclusively to suffrage and office-holding rights in this Commonwealth) resulting from the operation of state laws, are cancelled and relieved.”

Likewise, in the present case, the Restoration of Rights does not affect Gualano’s Federal conviction, but only the consequences which flow, due to that conviction, from the Illinois Constitution.

In an effort to learn the intent of the drafters of section 4, Article IV, and section 13, Article V, we have thoroughly studied the proceedings and debates of the Constitutional Convention of 1869-70. The provision which finally became section 4 of Article IV was proposed to the convention by the Committee on the Legislative Department in January 1870. Section 82 of the committee’s report was:

“The General Assembly shall exclude from the privilege of being elected to either house, any person convicted of bribery, perjury or other infamous crime.”

Later, the committee submitted several amendments to its report but none as to section 32. In February the convention resolved itself into the Committee of the Whole for the purpose of considering the report. When section 32 was reached for debate, three principal points were discussed: whether the proposed exclusion should be broadened to include all offices rather than just membership in the general assembly; whether the section should be modified by exempting from the exclusion any person whose innocence was established after his conviction, and whether the right to exclude a person from membership in the general assembly should be left to the legislature or be stated in the constitution.

An amendment was offered to strike from the committee’s proposal the words “either house” and insert in their stead the words “any office in this State.” The amendment was defeated. An amendment was offered to add to the section the words “unless after such conviction his innocence shall be established.” The amendment failed to pass. However, a substitute was offered for the entire section which did carry. The substituted section took from the general assembly the right to exclude and made such exclusion constitutionally mandatory :

“No person who has been, or hereafter shall be, convicted of bribery, perjury or other infamous crime, shall be eligible to a seat in the General Assembly.”

When the debate on all sections of the committee’s report was completed, it was moved and agreed that the report, as amended, would be reported to the convention with the recommendation that it be approved. In March the report was read to the convention and section 31 (the former section 32, as amended) was adopted and the whole report was referred to the Committee on Revision and Adjustment. This committee reported to the convention in May 1870. Section 31 had been revised to apply to all offices of profit or trust and was designated as section 4 of Article IV. The convention adopted the report and ordered the article enrolled as Article IV of the constitution.

The provision which became section 13 of Article V was reported to the convention by the Committee on the Executive Department. Its unanimous report was made in January 1870. Section 16 of the report was as follows:

“The Governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses, under such regulations as may be provided by law.”

In February the convention resolved itself into the Committee of the Whole to consider the report. The chairman of the Committee on the Executive Department explained that section 16 differed from the provision in the constitution of 1848 in that it provided for the legislature to fix the terms upon which the governor could exercise the power to pardon. In the ensuing debate some delegates favored retaining the 1848 constitutional provision, but the members of the reporting committee vigorously defended the new proposal. One committee member said some members of the committee were for a full pardoning power being given to the governor; some were against it, while others were in favor of it under regulations prescribed by law. He said they thought that section 16 was the “golden mean.” The delegates discussed the abuse or possible abuse of the pardoning power, the desirability or undesirability of having the legislature fix the limits under which this “supreme power of the State” could be exercised, whether innocent men were convicted of crimes and the desirability of providing hope for convicted men so that their reformation would be encouraged.

An amendment was offered to add to the words “under such regulations as may be provided by law,” the supplemental words “relative to the manner of applying for such reprieve, commutation or pardon.” The proposed amendment, it was said, would give the legislature the power to prescribe that notice of applications for executive clemency be given to interested parties “but it would not authorize the legislature in any way to cut off the right of the executive to use his discretion.” This argument prevailed over the protests of the committee chairman that the pardoning power “is a thing that calls for regulation in this State, more than anything I know of. We want to leave it to the Legislature to regulate it.” The amendment was agreed to.

In April the Executive Department’s report was presented to the convention. Section 17 of the report (the former section 16) was adopted without change. The section read:

“The Governor shall have power to grant reprieves, commutations and pardons, after convictions, for all offenses, subject to such regulations as may be provided by law relative to the manner of applying for such reprieve, commutation or pardon.”

The adopted report was referred to the Committee on Revision and Adjustment.

The Revision Committee’s report was read to the convention in May 1870. The only change in section 17 (which had become section 13 of Article V) was that the word “therefor” had been substituted for the last six words of the section, “for such reprieve, commutation or power.” The convention ordered the article enrolled as Article V of the constitution. Debates and Proceedings of the Constitutional Convention of the State of Illinois, vols 1 and 2, E. L. Merritt and Brother, 1870.

We conclude that it was the intention of the drafters of the provision which became section 4 of Article IV to couch the prohibition against holding public office after conviction for an infamous crime in terms which would eliminate legislative interference with the prohibition or legislative discretion in applying it. In the debate the delegates were considering the report of the Committee on the Legislative Department. Their concern was only with the legislature. They defeated an amendment which would have applied the prohibition to offices other than the general assembly because they though it was out of place in a report relating to the legislature. Their negative vote on the amendment which sought to exempt from the prohibition persons whose innocence became established was directed to members of the legislature. At no time during the debate did they consider the governor’s role or the possible impact of his pardoning power upon the measures they were discussing.

In regard to the provision which became section 13 of Article V, we conclude that it was the intention of the drafters of the provision to give the governor unlimited power to grant reprieves, commutations and pardons. They defeated the proposal of the Committee on the Executive Department that this power be subject to legislative supervision. They recognized that imperfections can exist in the judicial machinery and occasions might arise when an innocent person would be convicted of a crime; they also foresaw that the pardoning power would be a means of encouraging guilty persons to become upstanding citizens of the community and to prove by exemplary conduct that they were worthy of public confidence. It was the manifest purpose of those who designed our constitutional framework to give the governor full and untrammeled discretion in remedying injustices, in lowering sentences and in restoring the rights of citizenship. There was no suggestion in the debate that this pardoning was to be exercised outside of the purview of section 4 of Article IV — a section which had been formulated and approved prior to the debate on section 13 of Article V. The only qualification attached to section 13 was procedural: “subject to such regulations as may be provided by law relative to the manner of applying therefor.”

Section 13 in no way limits or modifies the full force and effect of the governor’s power and discretion. Section 13 vests in the governor the exclusive power to grant, after conviction, reprieves, commutations and pardons. People ex rel. Brundage v. LaBuy, 285 Ill 141, 120 NE 537 (1918). Such power is subject only to the limitation that the legislature may establish the manner of applying therefor. People ex rel. Smith v. Jenkins, 325 Ill 372, 156 NE 290 (1927). The granting of a restoration of rights falls within the ambit of the governor’s employment of the pardoning power. When the framers of the Illinois Constitution incorporated that power, they meant it to be used effectively. They did not intend to circumscribe its effectiveness by Article IV, section 4.

The plaintiffs next contend that even if the governor could remove the constitutional disqualification, he did not do so. They point to the following language in the certificate issued to the defendant:

“. . . I, Samuel H. Shapiro, Governor of the State of Illinois, hereby restore to the said James V. Gualano ... all his
RIGHTS OF CITIZENSHIP
excepting such rights as by reason of conviction for infamous crimes or otherwise are hereafter denied him by the Constitution of this State.”

The plaintiffs emphasize the words excepting and hereafter in the certificate and the words excepting and thereafter in the relevant statute:

“The Governor shall have the right to grant any person that has been, now is, or may be hereafter confined in the penitentiary, reformatory or correctional institution, whom he shall deem a proper person to enjoy that privilege, a certificate of restoration to all his rights of citizenship, excepting such privileges as, by reason of conviction for infamous crime, or otherwise, are thereafter denied such person by the constitution of this State. . . .” Ill Rev Stats 1967, c 108, § 49.

The plaintiffs maintain that the excepting clause of the certificate operates to forestall the defendant from being restored to eligibility for public office. They argue that the words “hereafter” in the certificate and “thereafter” in the statute refer to those rights and privileges lost because of a conviction for an infamous crime. They reason that since the purpose of a certificate of restoration is to restore rights which have been lost because of a prior conviction, it would be foolish to interpret the instant certificate as meaning that it does not restore rights for future crimes. In effect, the plaintiffs would have the Governor’s certificate construed as saying that the rights of citizenship have been restored except as to those rights which have been heretofore denied, rather than except for those rights which are hereafter denied; and they would have the statute construed as saying that the governor shall have the power of restoring rights of citizenship except as to those privileges which have been denied theretofore rather than except as to those privileges which are thereafter denied. We cannot accept these constructions. As used in the certificate and statute, both “hereafter” and “thereafter” are words of futurity. The excepting clauses of the certificate and the statute, although they may be superfluous, mean that rights and privileges which have been restored can only be affected by a future conviction for an infamous crime.

The Illinois Constitution provides that an individual convicted of an infamous crime is ineligible to hold an office of profit and trust. The constitution also provides for the removal of such ineligibility by the governor. The governor’s certificate of restoration of the rights of citizenship removed the defendant’s ineligibility to hold public office.

The judgment is reversed.

Reversed.

SCHWARTZ and McNAMARA, JJ., concur.