text:
    (No. 54466.

      In re WILLIAM HENRY BARRICK, Attorney, Respondent.

      Opinion filed November 13, 1981.

    Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.

      Sidney Z. Karasik, of Chicago, for respondent.
   MR. JUSTICE SIMON

delivered the opinion of the court:

A will which the respondent, William Henry Barrick, drafted in July 1974 for a client, Mrs. Josephine Caster, who died 7 months later, included a lifetime annuity for the respondent of $12,000 per year, the amount he had been receiving as an annual retainer from Mrs. Caster. The actuarial value of the bequest was $2% of the estate. The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging that, because of the bequest to himself, the respondent, in preparing the will, engaged in conduct tending to bring the legal profession into disrepute and violating Disciplinary Rule 5 — 101(A) of the Illinois Code of Professional Responsibility (1977). The hearing panel concluded that the respondent’s conduct was “calculated to diminish the integrity of the legal profession, and deliver it into disrepute and ignominy while suffering the administration of justice to suspicion and reproach.” It recommended suspension for 6 months and until further order of the court.

Before the Review Board, the Administrator conceded that it was unnecessary for the suspension to continue “until further order of the court” and requested the deletion of that provision from the recommendation. The Review Board issued a brief order without explanation recommending dismissal of the complaint. This court then granted leave to the Administrator to file exceptions to the recommendation of the Review Board.

The respondent has been a member of the Illinois bar for 43 years, practicing mostly in Rockford. Louis Caster, the husband of Josephine Caster, was a successful Rockford businessman, a man of substantial wealth and one of Barrick’s clients. He died in 1960.

The Casters’ closest friends were Clint Maslen and his wife, who were also from Rockford. Maslen commenced working for Mr. Caster in 1936 as office manager of a bakery Caster owned. They continued as close associates until Caster’s death. Over the years Caster and Maslen formed many business enterprises together, and Maslen functioned as business manager for Caster and his enterprises. After Caster’s death, Maslen continued in the same role as manager of Mrs. Caster’s affairs. Prior to his death Louis Caster told Maslen “that Mr. Barrick had done much work for him and in his opinion was a very acceptable attorney.” Also before his death, Caster informally told the judge in charge of Winnebago County probate matters “that probably William H. Barrick would be settling their estates [Mr. and Mrs. Caster’s], since he utilized him for some of his law business and was impressed with the utmost confidentiality with which Mr. Barrick handled his affairs.”

When Caster died, Mrs. Caster picked the respondent to probate his will. She selected him from a list of Rockford attorneys that Maslen submitted to her. After that, the respondent represented Mrs. Caster and because of this representation met with her frequently.

The evidence is not contradicted, as the Commission offered no testimony except to call the respondent himself as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). The unrebutted testimony of the respondent and Maslen established that the suggestion that the respondent be included as a legatee in her will originated with Mrs. Caster. When Mrs. Caster and Maslen were discussing changes in her will which Barrick advised her were needed because of changes in the revenue code, she told Maslen she wanted to remember the respondent in her new will. She said she wanted him to receive annually the yearly amount he was receiving as a retainer. When Maslen communicated Mrs. Caster’s wish to the respondent, who had made no effort to be named in the will, Barrick replied that it would be unusual for him to draft the will and also be named as a legatee. If Mrs. Caster insisted upon a legacy for him, Barrick said, it would be best for her to select another lawyer to draft her new will. When Maslen passed on this advice, Mrs. Caster said she did not want another lawyer because she did not want her business aired to the world. She was adamant about having the respondent prepare her new will in the way she wanted it drawn. Maslen reported Mrs. Caster’s decision to the respondent and told him she wanted the respondent to figure out a way he would be able to draft the will as she wanted it done.

At two later meetings with Barrick, Mrs. Caster refused to change her mind, rejecting Barrick’s suggestions that another lawyer draft, or at least review, the will. Mrs. Caster said that she did not want anyone else to know her business or to have it discussed by other lawyers and accountants. She feared that some charitable organizations in Rockford might, if other lawyers were brought in, learn that they had been omitted or what amount they had been left. She was concerned that the omitted organizations would importune her to include them while others might seek to persuade her to be more generous toward them. When the respondent suggested to Mrs. Caster that it would be better for him not to be included in her new will, she responded she did not want to run any chance that the respondent would not get something from her estate after all he had done for her.

The respondent testified, when questioned by the Administrator’s attorney, that they had considered having a codicil to the will drafted by an independent attorney providing for the legacy for the respondent. However, he pointed out that, because of the manner in which the will was drafted, a person preparing such a codicil would have to see the will itself in order to be satisfied that the codicil would not defeat the tax benefits the respondent sought to achieve for Mrs. Caster. This, of course, would expose the nature of the charitable bequests and the identity of the organizations receiving them to additional persons.

To satisfy Barrick, Mrs. Caster arranged to have three employees of a Rockford bank, who were unknown to Barrick, witness the will. The signing took place at Mrs. Caster’s residence. Before the execution, the respondent explained to the three witnesses that he and Maslen were both beneficiaries under the will. He offered to excuse himself and Maslen from the room so that the witnesses could ask Mrs. Caster any questions they had. Mrs. Caster responded to this suggestion by observing that such precautions were unnecessary, and, according to respondent, she said, “I will have none of that monkey business. I know what I am doing. You don’t have to be doing anything like that. These men have done more for me than anybody else and they deserve what I am doing for them.”

The Illinois State Bar Association Code of Professional Responsibility was the code generally followed in attorney disciplinary proceedings in Illinois at the time the will was prepared. (See In re Taylor (1977), 66 Ill. 2d 567, 571, stating that the canons contained in the Code are a safe guide for professional conduct, and an attorney can be disciplined for not observing them.) The hearing panel acknowledged in its report that there is no precise printed rule in the Code prohibiting a lawyer-draftsman from including himself as a beneficiary in a will drawn for his client. However, the complaint alleges that the respondent’s conduct violated Disciplinary Rule DR 5 — 101(A) of the Code, which was in effect when the respondent drafted the will. It provided:

“DR 5 — 101(A)
(a) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.”

The Administrator has not explained how the respondent’s professional judgment might have been affected by his own interest. However, when an attorney drafts a will naming himself as a beneficiary, the potential for abuse in the clash of roles is serious enough that the attorney must be deemed to suffer from a conflict of interest, and some effect must be presumed possible. Moreover, what the respondent did looks bad. New wills satisfy everyone, and the natural tendency of those disgruntled with their own shares to suppose undue influence and overreaching by the attorney harms the reputation of the profession. Writing oneself into a will cannot, therefore, be routinely condoned.

Neither, however, should it be automatically condemned. In special circumstances, it may be proper. We shall not try to define all the possible justifications for an attorney’s putting himself in a will; but, the circumstances of this case justify the respondent’s decision to do so.

What the respondent did was at his client’s insistence and in his client’s interest. A doctrine under which no attorney could ever feel secure in including himself in a will would itself create conflicts of interest that would not otherwise exist. Fear of discipline would give the attorney a compelling personal incentive to have the will drafted by someone else even if, as here, that personal interest might conflict with the client’s needs. The attorney would be tempted to exaggerate the problems of drafting the will himself as the client demands and to understate the problems which might be involved if another attorney is brought in to do the job.

There was nothing unreasonable or improper in Mrs. Caster’s determination to leave a small part of her estate to the respondent, whom she viewed as one of the two men who had done a great deal for her and her late husband. Even the Administrator does not suggest that an attorney may under no conditions accept money from a client. An ungracious refusal of the money on what to Mrs. Caster seemed foolish grounds would only have strained their relationship to no good purpose.

Mrs. Caster’s insistence that the respondent draft the will himself was also reasonable. His employment for that purpose assuaged her fear the community might learn of the legacies she was leaving. Her confidence that his counsel and draftsmanship would not be distorted by his annuity was, so far as the record shows, justified. Her distrust of other attorneys, who she feared might divulge her charities to their acquaintances, is debatable, but supported by her experience. We cannot quarrel with her conclusion that she would be better served by the respondent. We cannot fault the respondent for agreeing that if that was what she wanted she should have it. He was not required to resist to the point of offensiveness. The choice was hers to make, and Barrick would not have served his client properly had he persisted in frustrating her wishes.

An attorney must not, of course, decide unilaterally whether the circumstances justify his accepting employment despite a conflict of interest. He may not proceed to represent his client without her free, intelligent, and informed consent. He must make sure she knows and understands the conflict and the threat it poses to the attorney’s objectivity, and any other considerations material to the client’s decision whether to entrust her affairs to the attorney. He must also take suitable precautions to minimize the dangers and disadvantages to the client of his double role, including the risk that the attorney’s advice about the initial decision to proceed despite the conflict may itself be biased. And for his own protection, he should be prepared to prove later what really happened. All of this the respondent did.

A fair appraisal of the evidence leads to the conclusion that the respondent made a full disclosure to his client of the ethical considerations involved in his drafting the type of will she desired. He also knew that she received disinterested advice from Maslen, a person independent of him who was cognizant of all the circumstances. The client herself was “sharp” and not easily taken advantage of. The respondent took the precaution of having the will witnessed by strangers to whom Mrs. Caster spoke her mind on the problem, thereby preparing a defense to any will contest his own inclusion might inspire. The will was in fact probated without incident. We believe the respondent’s conduct complied with DR 5 — 101(A).

The Administrator has cited only two Illinois cases in his briefs, In re Saladino (1978), 71 Ill. 2d 263, and In re Anderson (1972), 52 Ill. 2d 202. The facts of each case are different from this, and as precedent they are not persuasive. In Saladino, where the attorney was suspended for 3 months, he was named as the sole residuary legatee in a will he drafted, which also provided for a bequest of a diamond ring to his wife. This court agreed with the Review Board that the evidence was not clear and convincing that in naming himself and his wife as legatees he was carrying out his client’s wishes. And, there was no suggestion by the attorney that he advised his client to obtain the services of another attorney or of any ethical problems which were involved in his service to the client.

Anderson involved an attorney who arranged for his client to transfer her home, her principal asset, to a land trust in which he and the client were beneficiaries as joint tenants without making any disclosures as to the ethical propriety of his conduct or recommending she consult another attorney. In addition, this court found in the record a course of conduct involving obliteration of records, deliberate omissions in documents filed in an estate administration, and testimony which it labeled contradictory or false. The respondent in Anderson failed to disclose his role in the matters which were the subject of inquiry with the candor that Barrick did in the matter now before us.

In this case, although undue influence might, on the basis of legal principles, have been presumed, the evidence established that there was none. There was no overreaching by the respondent. On the contrary, he urged his client to employ another attorney, until she would hear no more about it. Exactly how far to press the point was a matter of judgment, and we will not snipe at the respondent’s. He knew Mrs. Caster; we do not.

We should not discipline the respondent for abiding by his client’s decision when it was properly the client’s to make.

The charge is therefore dismissed.

Charge dismissed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 54138.
    LARRY ALBAUGH, Appellee, v. THOMAS A. COOLEY, Appellant.

      Opinion filed November 13, 1981.

      Jacobs, Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, of counsel), for appellant.
    Michael E. Dowd and Philip J. McGuire, of Dowd & Dowd, Ltd., of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Plaintiff, Larry Albaugh, brought this action to recover for injuries he sustained when an automobile driven by defendant, Thomas A. Cooley, struck him as he crossed a roadway on foot. On request of defendant the trial court submitted to the jury a special interrogatory: “Do you find that the plaintiff, Larry Albaugh, immediately before and at the time of the occurrence was guilty of any negligence which proximately contributed to cause his injuries?” The jury answered the special interrogatory, finding plaintiff guilty of contributory negligence, but also returned a general verdict in favor of plaintiff for $20,000. The trial court thereupon entered judgment upon the special interrogatory in favor of defendant pursuant to section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65). We note that our recent decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, has no effect on the decision here because this trial commenced prior to June 8, 1981, the date on which Alvis v. Ribar became effective. See 85 Ill. 2d 1, 28.

The appellate court, in three separate opinions, reversed and entered judgment on the general verdict in favor of plaintiff. (88 Ill. App. 3d 320.) The first opinion concluded that the evidence so overwhelmingly favored plaintiff on the issue of contributory negligence that no contrary verdict could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510). It also concluded that section 65 is an unconstitutional violation of separation of powers (Ill. Const. 1970, art. II, § 1) because the enactment infringes upon the inherent judicial power of the court. The second opinion, in a special concurrence, agreed that no finding of contributory negligence on the part of the plaintiff could ever stand, but concluded that it was unnecessary to address the constitutionality of section 65. The third opinion, a dissent, found that the evidence was sufficient to support a finding of contributory negligence and that section 65 does not violate the separation of powers doctrine. We allowed defendant’s petition for leave to appeal.

The record reflects that the accident occurred near the T-intersection of Rohlwing Road and Campbell Street in Rolling Meadows. Rohlwing Road is a two-laned road running generally north and south. The strip of Rohlwing Road near the pertinent intersection is on an S-curve. The speed limit on Rohlwing Road is 30 miles per hour. Campbell Street extends east from Rohlwing Road and runs east and west. There is a stop sign on Campbell Street for cars entering Rohlwing Road, but there are no other stop signs or stop lights at the intersection. It is undisputed that at the time of the accident the sky was dark and the weather clear and dry.

Plaintiff testified that on March 15, 1973, prior to the accident, he left his house, which was a short distance west of Rohlwing Road, to test the range of a set of walkie-talkies with his son. Plaintiff walked eastward on the south side of Campbell for 1% blocks while he talked to his son over his walkie-talkie and then crossed to the north side of Campbell. Plaintiff testified that he collapsed the walkie-talkie’s antenna, which when extended was 2M to 3 feet long, and put the unit into his right, rear pocket. He said he did not talk or receive on the unit again. Plaintiff walked west toward Rohlwing Road to return home.

Plaintiff testified that when he reached the corner of Rohlwing Road and Campbell Street he waited for a few cars on Campbell Street to turn right before he attempted to cross Rohlwing. A street light on the corner, he stated, illuminated parts of Campbell Street and Rohlwing Road. Plaintiff looked to the left and saw defendant’s car one-half to one block away in a curve on Rohlwing Road. Plaintiff said he did not form an opinion as to the speed of defendant’s car, but he knew the speed limit on Rohlwing Road was 30 miles per hour. He also knew defendant would not have to stop at a stop sign or light before continuing north. Plaintiff saw no cars from the right.

Plaintiff further testified he proceeded to cross Rohlwing Road and reached the middle of the road. He stated that in a deposition taken about one year earlier he had said he did not remember whether he actually reached the painted center line, but he could remember now. Plaintiff said he was facing west, but looked and “saw the car was right up on top of [him].” He “lunged to try to get out of the way,” but the car struck his right leg. He denied that he ever tried to turn around to get back to the curb. Plaintiff’s right leg was injured, he claimed, because plaintiff had lunged with his right leg forward and the car was driven in front of his left leg.

In addition, plaintiff stated that there were white crosswalk lines across Rohlwing Road and that he was within these lines. He also said, however, a picture of the intersection he knew had been taken one week after the occurrence did not show white, painted crosswalk lines.

Steve Bialo, a former police officer, testified he arrived after the accident and found plaintiff lying on the west side of Rohlwing Road at the intersection directly in line with the crosswalk marks. He later said he did not remember whether there was a painted crosswalk across Rohlwing. He also said there is a pedestrian crosswalk “posted lining up with the sidewalk at that intersection or crossing.” Bialo continued that the street light at the corner extends at an angle over Rohlwing and Campbell, but the street is not well lighted. Moreover, he testified that defendant told him that, as he swerved to avoid plaintiff, plaintiff started to run and ran into the front of his car.

Margaret Howell testified that immediately before the accident she was driving west on Campbell Street. Her 13-year-old daughter Christine was in the passenger’s seat beside her. Ms. Howell stated that she first saw plaintiff walking west on the north side of Campbell Street about one-half or one block east of Rohlwing Road. She testified, “What caught my attention was that he had some type of a walkie-talkie or CB radio, a hand-type thing with a long antenna up in the air.” She also stated that, at 15 to 20 feet from Rohlwing Road, plaintiff was still holding the unit with the antenna extended.

Ms. Howell further testified that at one point she was behind two or three cars that were waiting to turn at the intersection. She saw defendant’s car approach the intersection “going no faster than what the other traffic seemed to be that night.” After defendant’s car passed Campbell Street, the car in front of Ms. Howell turned. Ms. Howell did not know whether it turned left or right.

In addition, Ms. Howell testified she again saw plaintiff on the sidewalk “just as he came up to Rohlwing Road at which point I was stopped to take my turn to go on.” Plaintiff was on the sidewalk at that time. When she looked to her right later she “saw the pedestrian who was at that time being perpelled [sic].” Ms. Howell did not actually see defendant’s car strike plaintiff.

Ms. Howell, furthermore, testified that there is a street light at the intersection of Campbell and Rohlwing, but it extends more over Campbell than Rohlwing. The lighting conditions at the scene of the accident, she said, were fair to poor. She also testified that there were no painted crosswalk lines across Rohlwing Road that she knew of.

Christine Howell testified that she saw plaintiff as she was riding with her mother on Campbell Street toward Rohlwing Road. Although the record is unclear as to how many times she saw plaintiff, Christine said at one point she saw plaintiff standing at the edge of Rohlwing Road, where his next step would have taken him onto the pavement. When asked whether plaintiff was holding something in his hand, Christine answered, “It looked to me like a walkietalkie.” The antenna was up, she said, and the unit “was towards his head because it looked like he was talking to someone.” Christine also testified that a few seconds before the accident she saw plaintiff “slowly running across the street.” She did not actually see defendant’s car strike plaintiff.

Defendant testified that at approximately 7:15 or 7:30 p.m. he was driving north on Rohlwing Road at 25 to 30 miles per hour. Defendant stated that for approximately 100 feet prior to impact the bright headlights from a car turning left from Campbell Street were shining in his eyes. Defendant, testifying under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch/ 110, par. 60), stated that he first saw plaintiff when plaintiff was 15 to 20 feet in front of his car. Under direct examination, however, defendant said he had previously testified plaintiff was 10 to 15 feet in front of him. Defendant also testified plaintiff was approximately two or three feet east of the center line and was walking westward. Defendant started to swerve to the left until he saw plaintiff move, at which time he swerved to the right and applied his brakes. Plaintiff made a quarter turn in defendant’s direction, “swung back,” and started to move west. Defendant stated plaintiff also “put his hands out” and looked to defendant’s car. Plaintiff appeared to be “holding something” in his right hand. Defendant was not able to identify the object. The front left fender of defendant’s car made contact with plaintiff’s right leg less than a second after defendant first saw plaintiff. Defendant stopped his car about 30 feet north of the accident, returned, and found plaintiff on the west shoulder of the road.

In addition, defendant testified there were no painted crosswalk marks across Rohlwing Road. And despite his earlier testimony that plaintiff was standing east of the center line when he first saw him, defendant stated there was no center line down the middle of Rohlwing. Defendant, furthermore, identified a picture showing that on the west side of Rohlwing, across from the north side of Campbell, there was no sidewalk. Defendant also testified an overhead street light extends over Campbell Street to illuminate the stop sign there. There is almost no light on Rohlwing where this accident took place, he claimed, only “a little spill over.”

Plaintiff’s attorney, moreover, asked defendant whether he saw a warning sign indicating that a pedestrian crosswalk was 500 feet ahead when he was driving north on Rohlwing. Defendant said he did not, but he has since seen the sign.

The record reflects that the trial court tendered to the jury Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971), which enunciated the statutory law in effect for a pedestrian in a crosswalk. That statute provides as follows:

“When traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.” (Ill. Rev. Stat. 1973, ch. 95K, par. 11 — 1002(a).)

(We note, however, that the evidence is conflicting as to whether the accident occurred in a crosswalk (Ill. Rev. Stat. 1973, ch. 95M, par. 1 — 113) or in a crossing other than a crosswalk, in which case the pedestrian would have to yield the right-of-way to the driver under these circumstances (see Ill. Rev. Stat. 1973, ch. 95K, par. 11 — 1003(a)). Defendant has not raised this point on appeal and our decision makes it unnecessary to further consider it.)

This statute, however, does not give a pedestrian on a crosswalk the right-of-way under all circumstances. (See Moran v. Gatz (1945), 390 Ill. 478, 486.) Plaintiff has a duty to be free from contributory negligence and to use due care for his own safety. (Mueller v. Sangamo Construction Co. (1945), 61 Ill. 2d 441, 446; Moran v. Gatz (1945), 390 Ill. 478, 482.) Each case must be determined on its own facts (Moran v. Gatz (1945), 390 Ill. 478, 486), and whether a pedestrian failed to use due care and is accordingly contributorily negligent is ordinarily a question for the jury (Moran v. Gatz (1945), 390 Ill. 478, 486; see Hartgraves v. Cartage Co. (1976), 63 Ill. 2d 425, 432; Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 246). Furthermore, as noted in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 504, “the constitution does, and judges should, carefully preserve the right of the parties to have a substantial factual dispute resolved by the jury, for it is here that assessment of the credibility of witnesses may well prove decisive.” Courts are not free to reweigh the evidence because they could have drawn different conclusions or because they feel other results would be more reasonable. (Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 42-43; see Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 87.) We must determine whether this jury’s finding of contributory negligence in the special interrogatory was against the manifest weight of the evidence. Borries v. Z. Frank, Inc. (1967), 37 III. 2d 263, 266; see Sangster v. Van Hecke (1977), 67 Ill. 2d 96, 100; Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 105; see also Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 266.

We conclude that the evidence adduced at trial was sufficient for the jury to find plaintiff guilty of contributory negligence. Plaintiff testified that on a dark night in an intersection with only one street light he saw an approaching car one-half to one block away in an S curve and yet made no judgment as to the car’s speed before proceeding to cross in front of it. Plaintiff also testified that he knew the speed limit on Rohlwing Road was 30 miles per hour and that defendant’s car would not have occasion to stop before it approached him. Christine Howell testified that a few seconds before the accident she saw plaintiff slowly running across the street.

Under these circumstances the jury could have concluded that plaintiff knew or should have known of the impending danger of the advancing car and acted to avoid it. As the court stated in Moran v. Gatz (1945), 390 Ill. 478, 482:

“[Plaintiff] had no right to rely entirely on the fact that [he] had the right of way. Neither had [he] a right to unreasonably intrude [himself] into the midst of traffic. The danger of such an act on [his] part would be apparent and have a natural tendency to hold [him] back, and if [he] carelessly got [himself] into such a position, the law charges [him] with contributory negligence and leaves [him] remediless.”

We also note the additional evidence that plaintiff testified he looked once before he attempted to cross Rohlwing Road and did not look again until the car was nearly “on top of” him. A pedestrian’s failure to keep a constant lookout or to look again after having determined that he can safely cross ahead of approaching traffic leaves a question for the jury to determine whether he was in the exercise of ordinary care for his own safety. (Moran v. Gatz (1945), 390 Ill. 478, 486.) We add that although plaintiff said his walkie-talkie was in his right, rear pocket prior to the time he tried to cross the road, Christine Howell testified plaintiff had the unit “towards his head because it looked like he was talking to someone.” The jury could have inferred that plaintiff was distracted by the walkie-talkie. At the very least, whether plaintiff maintained a proper lookout is a question properly before the jury. We, therefore, conclude the trial court correctly entered judgment for defendant in accordance with the special interrogatory.

We turn to section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65). Section 65 provides as follows:

“Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.”

We find it unnecessary to consider the constitutionality of section 65. This court has held that “[t]he generally prevailing rule is that an inconsistent special finding controls a general verdict, even in the absence of express statutory provision.” (Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 266; see Clementson, Special Verdicts and Findings by Juries 22-23, 126 (1905).) That a special finding of fact controls an inconsistent general verdict is merely a codification of the common law. (See Walker v. New Mexico & Southern Pacific R.R. Co. (1897), 165 U.S. 593, 596-98, 41 L. Ed. 837, 841-42, 17 S. Ct. 421, 422-23; see also Green, A New Development in Jury Trial, 13 A.B.A.J. 715, 716 (1927), Notes and Comments, Special Verdicts: Rule 49 of The Federal Rules of Civil Procedure, 74 Yale L.J. 483, 484-87 (1965); Wicker, Special Interrogatories to Juries in Civil Cases, 35 Yale L.J. 296, 296-98 (1925); Comment, Special Findings and General Verdicts: The Reconciliation Doctrine, 18 U. Chi. L. Rev. 321, 322 (1951); Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575, 592 (1923); Clementson 1-19; cf. VonGlahn v. VonGlahn (1867), 46 Ill. 134, 144.) Similarly, there is authority that the provision that the jury “must be required on request of any party, to find specially upon any material question” is also a product of the common law. (See Clementson 32-33.) Therefore, in the absence of a conflicting supreme court rule, we are unprepared to strike down section 65. Cf. People v. Kennedy (1969), 43 Ill. 2d 200, 202; People v. Harrawood (1978), 66 Ill. App. 3d 163, 167-68.

We would make one further comment in regard to the view that the section does not allow the trial judge to determine whether a special interrogatory should be given if requested. The language of the section appears to be mandatory. However, this court has never interpreted section 65 to mean that the rights of the parties are absolute. (See People v. Commercial Life Insurance Co. (1910), 247 Ill. 92, 103; Chicago City Ry. Co. v. Jordan (1905), 215 Ill. 390, 394; Chicago & Northwestern Ry. Co. v. Dunleavy (1889), 129 Ill. 132, 143-44; see also Clementson 49-54, 81.) In any event, the statute implicitly recognizes the court’s discretion by limiting the parties’ rights to-have only those special interrogatories submitted which concern “material” questions of fact and by providing for review as a question of law.

For these reasons we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


author: JUSTICE UNDERWOOD

text:
    (No. 54193.
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. BARBARA SCHNACKENBERG et al., Appellees.

      Opinion filed November 13, 1981.

      SIMON, J., took no part.
    Kenneth T. Garvey, of Purcell & Wardrope, Chtd., of Chicago, for appellant.

      John C. Stiefel, of Solomon, Rosenfeld, Elliott, Stiefel & Abrams, Ltd., of Chicago, for appellees Barbara Schnackenberg and Mark Schnackenberg.
    Wayne F. Plaza and Christine M. Wheelock, of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellee Maria T. Strehlow.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The plaintiff, United States Fire Insurance Company, filed a complaint for declaratory judgment against its insureds, Barbara Schnackenberg and her son, Mark, and the plaintiff in the underlying personal injury action, Maria T. Strehlow. The company sought a declaration that its owners,’ landlords’ and tenants’ liability policy with the Schnackenbergs afforded no coverage for the claim asserted against them by Maria Strehlow. The company’s motion for summary judgment was granted by the circuit court of Cook County, the appellate court reversed (89 Ill. App. 3d 431), and we granted the insurer leave to appeal.

Maria Strehlow alleged in her complaint that on September 3, 1975, she suffered personal injuries when struck by a bicycle ridden by Mark Schnackenberg as she was crossing the street at the intersection of Arlington Place and Clark Street in Chicago. It is undisputed that the accident took place approximately 2blocks from the Schnackenberg home and that the bicycle was being used for pleasure purposes.

The coverage provision of the policy covering the two-family dwelling states:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto

An endorsement attached to the policy states:

“1. The definition of ‘insured premises’ is amended to read as follows:
‘insured premises’ means the premises described below (2444 N. Orchard, Chicago, Illinois) or designated in the policy as subject to this endorsement, including the ways immediately adjoining and including garages and stables incidental thereto, gardens incidental thereto on land not owned by the named insured, and individual or family cemetery plots or burial vaults.”

The defendants contend that the riding of a bicycle for pleasure purposes is “incidental to” the use of residential premises and that, because coverage is provided for “maintenance or use of the insured premises and all operations necessary or incidental thereto,” the accident involved here is covered. They also point to the express exclusion of coverage of injuries “arising out of the use of bicycles by or on behalf of the insured for trade, professional or business purposes,” and argue this exclusion of business use indicates the existence of coverage for all other uses, including bicycle riding for pleasure or recreation. Even under a restrictive policy interpretation, say defendants, the terms of the policy are ambiguous and must be construed in their favor.

Generally speaking, if a provision of an insurance contract can reasonably be said to be ambiguous it will be construed in favor of the insured and against the insurer, who was the drafter of the instrument. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376; Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330.) However, if the provisions of the insurance policy are clear and unambiguous there is no need for construction and the provisions will be applied as written. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420; Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367.) All the provisions of the insurance contract, rather than an isolated part, should be read together to interpret it and to determine whether an ambiguity exists. Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165; Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285.

We suspect that it is usually, if not always, possible in cases involving the interpretation of contracts as complex as the modern insurance policy to isolate particular phrases or clauses which are then urged in support of the desired result. That approach does little, however, to resolve the problem. In applying the rulés of interpretation, the words in the policy should be given their plain and ordinary meaning, and the court should not search for an ambiguity where there is none.

The policy before us provides coverage for occurrences “arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto The insured premises are those described (2444 N. Orchard) “including the ways immediately adjoining ***.” If this language were to be thought ambiguous in any respect, the phrase which is the most likely candidate would seem to be “the ways immediately adjoining.” However, a term may be unambiguous because it has acquired an established legal meaning. (17 Am. Jur. 2d Contracts §249 (1964).) That is true here. Though this court has not had occasion to interpret the phrase, our appellate court and a number of other jurisdictions have done so. A review of these cases indicates that the meaning of the phrase at the time the parties entered into the insurance contract was clear and unambiguous.

Travelers Indemnity Co. v. Bohn (Mo. 1970), 460 S.W.2d 642, involved an automobile accident approximately 850 feet down the street from the insured’s residence. The policy contained an exclusion for use of an automobile “while away from the premises or the ways immediately adjoining.” (460 S.W.2d 642, 643.) The Missouri Supreme Court had this to say of the phrase:

“We need spend little time on definitions, although defendants’ counsel argue them extensively. The correct meaning of ‘adjoining’ seems to be: ‘contiguous to’; ‘in contact with’; or ‘touching.’ It is sometimes used loosely and incorrectly as meaning ‘nearby’ or ‘adjacent.’ [Citations.] But we need not consider this variance, for the authorities recognize and defendants seem to concede in their briefs that when the word ‘immediately’ is inserted before ‘adjoining,’ the combined words are used in their most restrictive sense, and the meaning necessarily then is that nothing intervenes. Counsel thus say: ‘The term “immediately” implies that nothing intervenes, to quote the Court below, as amended, all makes very eminent sense,’ and further say that ‘ways immediately adjoining’ refers to those ways ‘that touch or abut the premises, as does Clark Street.’ Whether conceded or not we find such to be the proper definition of ‘ways immediately adjoining.’
The only question remaining is whether it is sufficient for liability that some part of Clark Street touches Bohn’s premises, although the injury occurred elsewhere. We hold, as did the trial court, that it is not. We find, as also did the trial court but independently of it, that ‘ways immediately adjoining the premises’ means that portion of the way or ways which abuts or touches the premises. Only one way is in issue here, namely, Clark Street, and this means that the injury must have occurred on that part of Clark Street which abuts or touches the premises. We hold that such is the clear and reasonable meaning conveyed by the provision <,°. It simply cannot be that these words (construed with the coverage provision) would afford coverage for an injury occurring a mile, two miles, or five miles down the street. Defendants consider that question as irrelevant but we do not. Thus we, as did the trial court, reject the theory that since the way touches 407 Clark Street, an injury occurring anywhere on Clark Street is covered. We do not so decide because of any presumed intent of plaintiff, but from what we deem to be the reasonable meaning of the words in the context of the whole policy.” (Emphasis in original.) 460 S.W.2d 642, 645-46.

An annotation on premises liability also discussed the phrase in question:

“It is generally agreed that the term ‘adjacent’ means ‘near’ or ‘close to’; that the term ‘adjoining,’ although more restrictive than the term ‘adjacent,’ has often been loosely used interchangeably with it; but that when the word ‘immediately’ modifies ‘adjacent’ or ‘adjoining,’ definite contact is meant, allowing no intervening space. In the application of these definitions, the courts have held injuries on sidewalks bounding the particularly described property to be covered by the policy, except where there is a clear indication to the contrary. And although there is authority to the contrary, a policy purporting to cover certain named premises and ‘ways immediately adjoining’ covers injury on the street bounding the premises, that is, injury sustained within the roadway directly in front of the property.” Annot., 23 A.L.R.3d 1230, 1232-33 (1969). See also cases cited therein.

In Illinois Conference of the United Church of Christ v. Fidelity & Casualty Co. (1973), 10 Ill. App. 3d 178, 294 N.E.2d 776, the court found the phrase “ways immediately adjoining” to be clear and unambiguous, embracing “only the area abutting or touching the insured area” (294 N.E.2d 776, 778). See also Caribou Four Corners, Inc. v. Truck Insurance Exchange (10th Cir. 1971), 443 F.2d 796; United States v. Great American Indemnity Co. (9th Cir. 1954), 214 F.2d 17; Farm Bureau Mutual Insurance Co. v. Sandbulte (Iowa 1981), 302 N.W.2d 104; Pickens v. Maryland Casualty Co. (1942), 141 Neb. 505, 2 N.W.2d 593; Lendway v. Muse (1964), 83 N.J. Super. 256, 199 A.2d 391; Cristal v. American Casualty Co. (1931), 107 N.J.L. 394, 153 A. 490; Connolly v. Standard Casualty Co. (1955), 76 S.D. 95, 73 N.W.2d 119.

Defendants seek escape from the generally accepted definition of “immediately adjoining” ways by focusing on their argument that pleasure bicycle riding is a use incidental to the insured premises, a predicate with which we have no quarrel, particularly when those premises are occupied by a mother and two teenaged sons. But that is not to say that coverage of bicycle riding on the premises and ways immediately adjoining continues when the rider departs therefrom, for once that argument is accepted, there is no logical geographical limit. If bicycle riding blocks away from the insured premises is a use incidental to those premises because it originated there, it is just as incidental if the rider is 2f£ miles or any greater distance from home.

In short, we believe the coverage clause and the endorsement must be given their plain and unambiguous meaning. If defendants’ interpretation of the coverage clause were adopted, the “insured premises” definition would be rendered meaningless for there would be no geographical limit to coverage and liability for conduct which originated on the premises and could be said to be incidental thereto. The term “insured premises” as used in the coverage clause is specifically defined in the endorsement as the two-family dwelling at 2444 N. Orchard, including the ways immediately adjoining, the generally accepted interpretation of which limits that term to the ways immediately touching or abutting the premises. There was no need to use further limiting language. In our judgment, defendant’s interpretation could not have been reasonably contemplated by the parties at the time they entered into a contract, and we should not impose such open-ended coverage when the geographic limits of the policy are clear.

This court considered nearly identical language in a coverage provision in Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285 (negligent sale of fireworks (sparklers) to an 11-year-old boy who took the fireworks to his yard, lit them, and suffered burns when a spark ignited his shirt). The opinion noted a split of authority whether coverage was limited to injuries occurring on the premises, but found the reasoning of the cases holding coverage was thus limited to be more persuasive and realistic interpretations of the insurance contract. The court rejected the argument that injuries occurring off the premises would be covered if those injuries resulted from negligence occurring on the insured premises. In the case before us not even the negligence occurred on the premises; rather, the alleged negligence, the accident, and the injury all occurred 2Já blocks away.

In rejecting plaintiff’s argument, the Cobbins court stated:

“A number of courts have reached an opposite conclusion because of a general attitude that most insurance policies appear to be written in confusing, unintelligible style. [Citation.] This does not, however, justify construing the contract against the insurer when no real ambiguity exists, nor does it justify distorting the meaning of words in order to reach a given result when the words should and can reasonably be given their plain, ordinary and popular meaning.” (53 Ill. 2d 285, 293-94.)

Those observations, in our judgment, are appropriate here.

The judgment of the appellate court is accordingly reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON took no part in the consideration or decision of this case.


author: JUSTICE RYAN JUSTICE SIMON,

text:
    (No. 54359.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KEVIN EUGENE WOODRUFF, Appellee.

      Opinion filed December 18, 1981.

    SIMON, J., specially concurring.
    Tyrone C. Fahner, Attorney General, of Springfield and Basil G. Greanias, State’s Attorney, of Decatur (Melbourne Noel, Assistant Attorney General, of Chicago, and Jeff Justice, Assistant State’s Attorney, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Charles M. Schiedel, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE RYAN

delivered the opinion of the court:

On June 25, 1979, a petition was filed in the circuit court of Macon County alleging that the defendant, Kevin Eugene Woodruff, age 15, is a delinquent minor. The petition alleged that the defendant committed the offenses of armed robbery, armed violence, and home invasion. On the same day, the State’s Attorney filed a motion to have the defendant tried as an adult. (Ill. Rev. Stat. 1979, ch. 37, par. 702—7(3).) On August 10, 1979, the court entered an order authorizing the State to try the defendant as an adult for violations of the criminal law. The criminal trial began on November 19, 1979, at which time the defendant moved that he be discharged for failure of the State to bring him to trial within 120 days from the date he was taken into custody. (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(a).) The motion was denied and, following a jury trial, the defendant was convicted of armed robbery and home invasion, and sentenced to two concurrent terms of seven years’ imprisonment.

In the appellate court, the defendant raised three issues. However, the appellate court only addressed one of these (the failure to bring the defendant to trial within 120 days), and reversed the defendant’s convictions on that basis. The appellate court held that under the facts of this case, which will be set out in more detail below, the 120-day period began running when the delinquency petition was filed and summons issued on June 25, 1979. The court held that the time between that event and the entry of the order authorizing the defendant to be tried as an adult had to be counted in determining whether the defendant had been brought to trial within 120 days from the date he was taken into custody. (90 Ill. App. 3d 236.) We granted the State’s petition for leave to appeal.

Prior to the filing of the delinquency petition involved in this case, an earlier delinquency petition had been filed on August 3, 1978, charging that Kevin Woodruff had entered a building without the owner’s consent and committed damage to the property therein. At the adjudicatory hearing on the petition, the defendant was placed on supervision for a period of one year beginning September 21, 1978. Thereafter, several reports were filed by the probation officer setting forth various violations of the conditions of the supervision order. As a result of these violations a detention warrant was issued. On April 12,1979, following a detention hearing, the minor was ordered detained in a detention facility until April 16, at which time he was to be released to his father, and the matter was continued for a hearing. Following the release of the defendant to his father, the probation officer reported that on May 2, 1979, the defendant was seen stealing a minibike and on May 14, 1979, the defendant was arrested by the police on a burglary charge. It does not appear that he was held. In addition to these violations, the defendant’s father reported that the defendant was out of control, had been smoking “pot” and using other drugs, and had not come home for two nights. Also, the father reported that the defendant had not been attending school. Finally, on May 14, a detention warrant was issued but was apparently not served. On May 25 the defendant’s attorney reported that the whereabouts of the defendant was unknown. The hearings on the alleged violations were continued generally. On June 3, 1979, the defendant was apprehended and detained in the Macon County juvenile detention facility. On June 5 the court entered a detention order directing that he be detained in the juvenile detention facility. On June 14 the adjudicatory hearing was held and the defendant was found to be a delinquent minor and he was adjudged a ward of the court. On June 23 the dispositional hearing was commenced and was concluded on June 26, at which time the court entered an order committing the defendant to the Department of Corrections, juvenile division, and ordering the sheriff to forthwith deliver the defendant to the Department of Corrections, juvenile division. It was further ordered that the defendant be held in the Macon County juvenile detention facility pending transfer to the Department of Corrections.

The beginning of the proceedings leading to the defendant’s conviction in our case overlaps the violations and proceedings set out above, which pertain to the earlier delinquency adjudication of this defendant. On June 25, 1979 (after the defendant had been adjudicated a delinquent in the prior proceeding, but before the dispositional order in that case), the delinquency petition was filed in this case charging that the defendant had committed the offense of armed robbery and home invasion for which he was later prosecuted criminally. A motion to prosecute the defendant as an adult was filed at that time. Summons was issued and served upon the defendant on June 28, 1979 (after he had been committed to the Department of Corrections, juvenile division, by the dispositional order entered in the prior case, but while he was still being held in Macon County juvenile facility pursuant to the court order pending his transfer to the Department of Corrections).

The adjudicatory hearing for this second delinquency petition was set for July 12, 1979; however, the defendant had been transferred to the Department of Corrections, juvenile division, on July 2. On July 23, 1979, a petition for a writ of habeas corpus ad prosequendum was filed by the State’s Attorney of Macon County, and on that date the court entered an order allowing the State’s request. As noted previously, the defendant’s trial on the criminal charges commenced November 19, 1979. At that time defendant moved for a discharge, alleging the violation of his right to a speedy trial, and the trial court denied his motion.

Nothing in the record indicates that the defendant was held in custody in connection with the second delinquency petition until July 26, 1979, at which time he was produced in court in response to the writ of habeas corpus, the order for which was entered on July 23, 1979, and the writ itself was dated July 24, 1979. Until July 26 the defendant was in custody and being held as a result of the adjudication of delinquency in the previous case pursuant to the order of June 14, 1979. The Juvenile Court Act severely limits the authority to hold a minor in custody. (See Ill. Rev. Stat. 1979, ch. 37, pars. 703—1, 703—4, 703—5, 703—6.) The record in the second delinquency proceeding contains no findings or orders as required by these sections of the Act as a prerequisite to holding the minor in custody. On the date the second delinquency petition was filed and at all times thereafter until July 26,1979, the defendant was being held in custody under a detainer order entered in the earlier delinquency case, following an adjudicatory hearing. The record discloses that on July 26, 1979, the defendant was present in court in custody of the sheriff. He had been delivered to the sheriff by the Department of Corrections, juvenile division, in response to the writ of habeas corpus issued in the second proceeding.

Section 103—5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103—5) provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody ***.”

Under this section the defendant must be held in custody for the charge for which he is being prosecuted before the 120-day period on that charge begins to run. That period, however, may begin to run at the time of arrest and before the defendant has been formally charged. (People v. Jones (1965), 33 Ill. 2d 357, 360; People v. Sexton (1972), 6 Ill. App. 3d 779, 781; People v. Nettles (1969), 107 Ill. App. 2d 143, 149.) In our case the defendant was not held in custody under any order relating to this offense or the second delinquency petition until July 26, 1979, when he was returned to the circuit court of Macon County pursuant to the writ of habeas corpus. Under the Juvenile Court Act, a minor cannot be held in custody except in conformance of the requirements of that Act. Since no order was entered restraining defendant in the second case until July 26, 1979, the 120-day period had not run when the defendant was brought to trial on November 19, 1979.

Furthermore, we are convinced that the 120-day period should not commence in such cases until the court enters an order authorizing the juvenile to be prosecuted as an adult for the offense he allegedly committed. (See Ill. Rev. Stat. 1979, ch. 37, par. 702—7.) In this case that order was entered August 10, 1979. This conclusion is prompted by the distinctly different nature of the two proceedings; those under the Juvenile Court Act, and proceedings under the Criminal Code of 1961 and the Code of Criminal Procedure of 1963.

The reason for this conclusion is found in the very language of section 103—5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 103—5.) It is apparent from the language of this section that it relates to the criminal prosecutions only. Section 103—5 applies only to persons held in custody for an alleged offense. An offense is defined in the Criminal Code of 1961 as “a violation of any penal statute of this State.” (Ill. Rev. Stat. 1979, ch. 38, par. 2—12.) In a proceeding under the Juvenile Court Act, the minor is not held in custody for an alleged offense. The Juvenile Court Act provides that no minor shall be denominated a criminal by reason of an adjudication under the Act, nor shall any adjudication be denominated a conviction. (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 9.) As noted earlier, the Act strictly limits the authority to hold a minor in custody. Under the Act the minor is not held in custody for an alleged offense, but pursuant to an order of the court which may be entered under the limited conditions provided in the Act. For example, prior to the adjudicatory hearing, the court at a detention hearing can only order the minor detained, not as a result of the alleged offense, but only if the court finds that detention is necessary for the protection of the minor or of the person or property of another or that the minor is likely to flee the jurisdiction of the court. (Ill. Rev. Stat. 1979, ch. 37, par. 703—6.) Following an adjudicatory hearing, the court does not find the minor guilty of an offense, but finds him to be a delinquent minor pursuant to the Juvenile Court Act, and not under the provisions of the Criminal Code of 1961 or the Code of Criminal Procedure of 1963. Also, if the court orders the minor detained under the Act, there is no provision that permits him to avoid detention by posting bail.

Other States, in construing the language of their rules and statutes similar to that contained in our section 103—5 of the Code of Criminal Procedure of 1963, have held that their speedy trial requirements do not apply to minors while under the jurisdiction of the juvenile court. In State v. White (Iowa 1974), 223 N.W.2d 173, 175, the supreme court of Iowa considered the language in its code which provided:

“ ‘When a person is held to answer for a public offense, if an indictment be not found against him in thirty days, the court must order the prosecution to be dismissed ***.’ ” (Emphasis added.)

The court held that an accused is not held to answer for a public offense within the meaning of the code unless he is held for a crime.

“Proceedings in juvenile court are not prosecutions for crime. They are special proceedings which serve as an ameliorative alternative to criminal prosecution of children.” (State v. White (Iowa 1974), 223 N.W.2d 173, 175.)

The court held that a child under the jurisdiction of the juvenile court is not held to answer for a public offense until he is transferred for prosecution as an adult. Both the language of the Iowa code and the language of section 103 — 5 of our code of criminal procedure use the word “offense.”

In State v. Howell (1976), 89 N.M. 10, 11, 546 P.2d 858, 859, the New Mexico court construed the “in custody” language of its speedy trial rule as not applying to minors held under the “Childrens, Code.” In State ex rel. Williams v. Court of Common Pleas (1975), 42 Ohio St. 2d 433, 329 N.E.2d 680, the Ohio court held that the language of its speedy trial limitations did not apply to a minor and held that the juvenile comes within the scope of the speedy trial requirements only if and when the juvenile court relinquishes jurisdiction and transfers the case to the appropriate court. To the same effect is Commonwealth v. Bell (1976), 245 Pa. Super. 164, 369 A.2d 345; affirmed per curiam (1978), 481 Pa. 229, 392 A.2d 691, where the court construed the speedy trial language in Pennsylvania. The court held that a delinquency petition does not constitute the filing of a complaint against the minor and that the time period commences at that time when the case comes within the powers of the criminal court.

Florida has held to the contrary. In State v. Benton (Fla. 1976), 337 So. 2d 797, the Florida Supreme Court held that the speedy trial time period commenced when the juvenile was taken into custody as a result of conduct which gave rise to the delinquency petition. The court noted that a Florida appellate court had previously held to the contrary and stated that that holding was correct at the time that it was rendered. The court in Benton based its holding on the adoption of a juvenile speedy trial procedural rule subsequent to the earlier case, which, the court stated, rendered the previous holding obsolete. State v. Benton (Fla. 1976), 337 So. 2d 797, 798.

In the above cases, in addition to finding from the language in their respective speedy trial requirements the intent that they apply only to criminal prosecutions and not to juvenile proceedings, the courts also considered that a juvenile proceeding is distinct and different from a criminal prosecution. In State v. Jacks (1980), 25 Wash. App. 141, 605 P.2d 363, the Washington court, which had reached the same result, noted that the juvenile court was given exclusive jurisdiction over juvenile offenders. The court stated that it would be inconsistent with the rules governing juvenile proceedings to apply time limitations applicable to criminal prosecutions, noting that the juvenile court rules had their own time limitations to protect a juvenile’s interest in a speedy trial. In State v. Howell, the New Mexico court pointed out that the “Children’s Code” of that State specifically provided that a juvenile, under the code, shall not be deemed a convict and reasoned that it would seem to follow that the time period prior to the transfer of the case out of the juvenile court would not count in computing the period of time within which criminal charges must be tried.

The rationale of these cases applies equally well to Illinois. Clearly, a proceeding under the Juvenile Court Act is distinct and different from a criminal prosecution, and the provisions of that Act apply exclusively to juvenile offenders until such time as the court authorizes criminal prosecution. (Ill. Rev. Stat. 1979, ch. 37, par. 702—7.) The Juvenile Court Act has specific time limitations for the various proceedings thereunder. (Ill. Rev. Stat. 1979, ch. 37, pars. 703—2, 703—4, 703—5(1), 703-5(4), 704—2.) Also, requirements of the Juvenile Court Act concerning service of summons upon or notice to parents of the minor (Ill. Rev. Stat. 1979, ch. 37, pars. 703—2, 703—5(3), 703—6(3), 704—3, 704—4) are peculiar to proceedings under the Act, are time consuming, and are not consistent with proceedings relevant to a criminal prosecution. The rationale of the Juvenile Court Act is that juvenile offenders are not criminals; proceedings under the Act are not criminal prosecutions; adjudications under the Act are not convictions and a minor so adjudicated does not suffer the consequences of a criminal conviction. (Ill. Rev. Stat. 1979, ch. 37, par. 702—9(1).) We agree with the reasoning of the cases from other jurisdictions cited above that it is not consistent with the purposes and intent of the Juvenile Court Act to apply the provisions of the Code of Criminal Procedure of 1963 to a juvenile offender prior to the time the court authorizes the State to prosecute him as an adult.

It may be that this holding will result in a juvenile offender being incarcerated more than 120 days prior to his trial if he is authorized to be prosecuted as an adult. However, prior to the entry of the order authorizing prosecution, the minor enjoys certain protections and benefits under the Juvenile Court Act that are not extended to one charged with a crime. He is not, for example, required to post bail. Also, the Act, as noted earlier, permits a juvenile offender to be detained only upon specific findings of the court, and strict time limitations are imposed upon the various proceedings under the Act.

This court has recognized the unique nature of juvenile proceedings and the value of retaining a distinction between the juvenile and criminal processes. (In re Beasley (1977), 66 Ill. 2d 385, cert, denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734); People v. Taylor (1979), 76 Ill. 2d 289, 307.) It is the Juvenile Court Act proceedings that the filing of a delinquency petition commences. The adult criminal process is not imposed upon the juvenile until the outcome of a transfer hearing which authorizes prosecution as an adult. To hold otherwise would be to ignore the underlying philosophy of the Juvenile Court Act.

Nor does section 1—2(3) (a) of the Act require a different result. That section provides:

“In all procedures under this Act, the following shall apply:
(a) The procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a).)

The provisions of this statute do not require that the 120-day time period commence to run before the order authorizing the minor to be prosecuted as an adult. Prior to that time the minor is protected under the constraints of the Juvenile Court Act which, as stated by the Iowa court in State v. White (Iowa 1974), 223 N.W.2d 173, 175, are “not prosecutions for crime. They are special proceedings which serve as an ameliorative alternative to criminal prosecution of children.”

Accordingly, the judgment of the appellate court is reversed. The cause is remanded to the appellate court for consideration of the remaining issues.

Reversed and remanded,

with directions.

JUSTICE SIMON,

specially concurring:

I concur in the decision on the ground that the defendant was in custody for a different offense, not the one out of which this case arose, and for that reason he was not cloaked with the protection of the speedy trial act for more than 120 days before his trial commenced. I disagree with the court’s alternative position that minors do not commit “offenses” and can never be “in custody for an offense” until they are transferred to adult status. Common sense says that a person in custody for armed robbery is in custody for an offense, so as to start the speedy trial clock (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(a)).

“Offense” means a violation of any penal statute of this State. (Ill. Rev. Stat. 1979, ch. 38, par. 2—12.) In other words, a person is in custody for an offense if he is in custody for a violation of a penal statute. A delinquent minor is one who has violated or attempted to violate any Federal or State law or municipal ordinance. (Ill. Rev. Stat. 1979, ch. 37, par. 702—2.) While the definitions are not identical, the idea is the same. Essentially, a delinquent minor is one who commits an offense. The focus of both definitions is on the defendant’s conduct, not on how the legal system will respond. A minor in custody as delinquent is “in custody for an alleged offense” (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(a)).

The Juvenile Court Act declares the policy of this State to be that minors shall have the procedural rights of adults “unless specifically precluded by laws which enhance the protection of such minors.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2(3)(a).) The juvenile speedy trial provision is in fact more stringent than the adult rule: delinquents held in detention are to be tried within 10 judicial days, unless the State shows good cause for a 20-day extension (Ill. Rev. Stat. 1979, ch. 37, par. 704—2). Why, then, should a minor tried as an adult have less protection than a real adult? The court’s conclusion contravenes both the letter and the spirit of our statutes.


author: JUSTICE SIMON

text:
    (No. 54676.
    THE BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Appellees.

      Opinion filed November 13, 1981.

      Arvey, Hodes, Costello & Burman, of Chicago (George L. Siegel, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Jerome J. Webb, J. Stuart Garbutt, and Judith Frank Flaherty, Assistant Attorneys General, of Chicago, of counsel), for appellees Human Rights Commission and Department of Human Rights.
    Gilbert Feldman, of Cornfield & Feldman, of Chicago, for appellees William J. Prince, Harold C. Messinides, and Luada Porter Estell.
   JUSTICE SIMON

delivered the opinion of the court:

The Federal Age Discrimination in Employment Act of 1967 prohibits compulsory retirement before the age of 70. (29 U.S.C. §§623, 631(a) (1979 Supp.).) There is, however, a temporary exception for tenured teachers in higher education; until July 1, 1982, they can be forced to retire at age 65. (29 U.S.C. §631(d) (1979 Supp.).) The complainants in this case are three tenured professors from the Chicago City Colleges. They come to this court for a determination of whether the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—101 et seq.) counteracts the temporary exception in the Federal act and protects them by banning their compulsory retirement before the age of 70.

The complainants are now each over 65 and have been employed by the City Colleges as teachers for many years. They were scheduled for retirement, pursuant to Rule 2—19(b) of the City Colleges, at the end of the term in which each reached the age of 65. The individual complainants each filed charges with the Department of Human Rights, alleging that their involuntary retirement violated the Illinois Human Rights Act. The Department investigated and filed complaints with the Human Rights Commission pursuant to section 7—102 of the Act. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(F).

The complaints were first heard by an administrative hearing officer under the procedures set forth in the Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8—106). The hearing officer concluded that the City Colleges were in violation of the Act for the following reasons: It prohibits retirement on the basis of age before an employee reaches the age of 70; the City Colleges’ rule on retirement is not in keeping with any established retirement system; and a statutory exemption that the Illinois Human Rights Act provides from certain of its prohibitions is not applicable to the three complainants. The Human Rights Commission heard the City Colleges’ appeal and affirmed the order of the hearing officer, finding that it was not against the manifest weight of the evidence.

The case then moved to the circuit court of Cook County with the Commission joining the three professors as defendants. The circuit court confirmed that the Illinois Human Rights Act forbids compulsory retirement before 70, but found that the professors were being retired pursuant to an established retirement system. Turning to the question of the exemption provided by section 2—104(E)(1) of the Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2—104(E)(1)), the circuit court judge said that he could not make sense of that provision and held it unconstitutionally vague. In the alternative, the circuit court judge declared that if the statute was constitutional, the City Colleges’ retirement system was valid and eligible for the exemption. Both sides appealed directly to this court under Rule 302(a)(1) (73 Ill. 2d R. 302(a)(1)).

There are two questions to be resolved in this appeal: (1) Is involuntary retirement on the basis of age prior to age 70 a civil rights violation prohibited by the Illinois Human Rights Act? (2) If so, does section 2—104(E)(1) exempt compulsory retirement at 65 and is it constitutional?

The Act defines unlawful discrimination as: “discrimination against a person because of his or her race, color, religion, national origin, ancestry, age, sex, marital status, handicap or unfavorable discharge from military service ***.’’ (Emphasis added.) Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—103(Q).

“ ‘Age’ means the chronological age of a person who is 40 but not yet 70 years old.” Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—103(A).

It is a civil rights violation “[f]or any employer to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment on the basis of unlawful discrimination.” (Emphasis added.) Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2—102(A).

Does the Illinois Human Rights Act cover involuntary retirement? Retirement is not expressly included within the practices set forth in the definition of civil rights violations. But, an analysis of the broad intent of the legislature and similar employment-discrimination statutes leads to the conclusion that the Act encompasses retirement. As remedial legislation the Act should be construed liberally to effect its purpose. (S. N. Nielsen Co. v. Public Building Com. (1980), 81 Ill. 2d 290, 298.) In an introductory section the Act declares our State’s public policy to be to “secure for all individuals within Illinois the freedom from discrimination because of 888 age 888 in connection with employment 888.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—102(A).) Retirement is sufficiently connected to employment to justify including it within the broad range of discriminatory practices banned by the Act. It is inconsistent with the sweep of this public policy to so narrowly construe the section of the Act defining civil rights violations as to limit the circumstances of employment to which the Act applies.

The words “discharge,” “renewal of employment,” or “tenure” can be construed to embrace retirement. Involuntary retirement closely parallels the effect of a discharge or a failure to renew employment; it also deprives an employee of continued employment, and this affects tenure. Even though the word “retirement” does not appear in section 2—102(A), the omission does not mean it was intended to be excluded where its effects are so similar to the practices expressly forbidden.

This construction is supported by the interpretation given to other employment discrimination statutes which do not use the word “retirement.” The Federal Age Discrimination in Employment Act, for example, makes it unlawful “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age ###.” (29 U.S.C. §623(a)(1) (1976).) In United Air Lines, Inc. v. McMann (1977), 434 U.S. 192, 54 L. Ed. 2d 402, 98 S. Ct. 444, the court held that some forced retirements are prohibited even though the Federal Act does not mention retirement. The court said, “The Act covers individuals between ages 40 and 65, 29 U.S.C. §631, but does not prohibit all forced retirements prior to age 65; some are permitted under § 4(f)(2), 81 Stat. 603,” a provision of the Act exempting certain retirement and seniority systems. (434 U.S. 192, 195, 54 L. Ed. 2d 402, 408, 98 S. Ct. 444, 446; see also Gonsalves v. Caterpillar Tractor Co. (7th Cir. 1980), 634 F.2d 1065; Brennan v. Taft Broadcasting Co. (5th Cir. 1974), 500 F.2d 212.) It was not necessary in these cases to turn to the statutory exemption permitting retirement in certain instances under the Federal act if the general prohibitory sections of that act did not already include retirement within their coverage.

It has also been held that title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e) et seq. (1976) covers retirement, even though that term is not explicitly mentioned in that statute. (Bartmess v. Drewrys U.S.A., Inc. (7th Cir. 1971), 444 F.2d 1186; Rosen v. Public Services Electric & Gas Co. (3d Cir. 1973), 477 F.2d 90.) These cases cited Inland Steel Co. v. National Labor Relations Board (7th Cir. 1948), 170 F.2d 247, which similarly concluded that retirement was encompassed by the National Labor Relations Act (29 U.S.C. 159(a) (1952)).

Finally we note that the Human Rights Act contains, like the Federal act, a provision exempting the compulsory retirement of high-ranking, policymaking executives at age 65. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2—104(E)(2).) This exemption provides that the Act does not prohibit:

“(2) Effecting compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who, for the 2-year period immediately preceding retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans of the employer of such employee, which equals, in the aggregate, at least $27,000.”

This exemption would be unnecessary if retirement were not included in the section defining civil rights violations. A statute should not be construed in a way which makes one of its provisions redundant and superfluous. People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65.

The City Colleges point out that section 2—104(E)(2) was not adopted until 7 months after the Human Rights Act was first passed. But this does not detract from the conclusion that this amendment would be unnecessary if retirement between 40 and 70 were not embraced by the Act. If employees had no protection against involuntary retirement, why was it necessary to provide a means of such retirement for any class of employees at any age? Their retirement would simply not have been a violation under the Illinois Human Rights Act. The judiciary should not assume that the legislature engaged in a useless act in amending a statute; rather an amendment may assist in determining legislative intent with respect to provisions of the statute before its amendment. Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 116-17.

The next inquiry is whether mandatory retirement at an age between 40 and 70 is “unlawful discrimination.” Those who are subject to mandatory retirement at 65 are discriminated against on the basis of their age because those who have not reached 65 are not forced to retire. The City Colleges contend that the Act permits age discrimination so long as all employees are similarly discriminated against when attaining the targeted age. Since all faculty members are subject to retirement at age 65, they argue the discrimination is permissible. The answer to this suggestion seems obvious. The Illinois Human Rights Act was designed to prevent age-based discrimination, not to authorize it so long as the discrimination was eventually applied against everyone.

For these reasons, the Illinois Human Rights Act must be interpreted as barring the pre-70 retirement of all employees except those specifically exempted. The Act, then, prohibits involuntary retirement on the basis of age.

The next question is whether there are exemptions in the statute which permit the City Colleges to enforce mandatory retirement at age 65. The City Colleges point to section 2—104(E)(1) of the Act, which provides:

“Nothing contained in this Act shall prohibit an employer *** from:
# # #
(E) Merit and Retirement Systems. (1) Applying different standards of compensation, or different terms, conditions or privileges of employment pursuant to a merit or retirement system provided that such system or its administration is not used as a subterfuge for or does not have the effect of unlawful discrimination.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 2—104(E).)

It was this provision which the circuit court found unconstitutional.

Section 2—104(E)(1) is not vague; properly interpreted it does not apply to the City Colleges’ action.

The City Colleges argue that retirement itself is a “condition of employment” and that the retirement age is a “term” of any retirement system. The view they urge, therefore, is that the City Colleges, as employer, are free to treat employees differently by requiring as a condition of employment that those who reach the age of 65 retire, so long as this different treatment of employees was pursuant to a retirement system that was not a subterfuge and did not have the effect of unlawful discrimination.

The first weakness in the City Colleges’ contention is that it requires a strained construction of the words “terms” or “conditions” of employment. It is not in the terms of the retirement system — the retirement age, for example — that the complainants are treated differently than others. Everyone must retire at the same age. The discrimination is the retirement itself: people under 65 work, those over 65 don’t. We do not think retirement, which terminates employment, can be naturally or plausibly described as a term or condition of employment.

Second, the City Colleges’ position amounts to an assertion that section 2-104(E)(1) provides a full exemption for all retirement systems, or at least all existing retirement systems. But a closer look at the Act and its history shows that the section does not provide such blanket authority. As already noted, section 2—104(E)(2) grants an exemption for the mandatory retirement of high-ranking policymaking executives. If section 2—104(E)(1) already provided, a blanket exemption for all mandatory retirement, section 2—104(E)(2) would have been unnecessary for that purpose. Construction of an amendment to a statute in a manner which renders it meaningless should be avoided. (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107.) The sole effect of section 2—104(E)(2) would be to authorize compulsory retirement of executives not based on a legitimate retirement system, that is to legalize their involuntary retirement based on any criteria whatever, including, for example, race. We do not believe that such a result is what the legislature was aiming for. Section 2—104(E)(1) must therefore be given a more limited scope.

That conclusion is again strengthened by comparison with other statutes. The Federal act created an exemption for each “bona fide employee benefit plan such as a retirement plan, which is not a subterfuge to evade the purposes of this chapter #0#.” (29 U.S.C. §623(f)(2) (1979 Supp.).) As construed in United Air Lines, Inc. v. McMann (1977), 434 U.S. 192, 54 L. Ed. 2d 402, 98 S. Ct. 444, this provision was held to exempt retirement plans. Although the Federal statute was subsequently amended to provide that plans requiring retirement before age 70 were not exempted, the general language of the Federal act prior to its amendment contrasts with the specific provisions of the Illinois Human Rights Act.

Similarly, the predecessor statute to the Illinois Human Rights Act, the Illinois age discrimination in employment act, contained in section 3 a blanket exemption for retirement plans:

“Nothing in this Act affects the retirement system of any employer where such system is not merely a subterfuge to evade the purpose of this Act C9<>.” (Ill. Rev. Stat. 1979, ch. 48, par. 883.)

When the legislature adopted more limited exemptions in the form of section 2—104(E) of the Illinois Human Rights Act in place of exempting the system itself, it demonstrated its intent to abandon the broad exemption granted to retirement systems by the prior act. O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271.

The true meaning of section 2—104(E)(1) can be discerned by comparing it with another provision in the predecessor statute. Section 3 of the former statute also provided:

“Nothing in this Act ””” precludes the varying of insurance coverage according to an employee’s age.” (Ill. Rev. Stat. 1977, ch. 48, par. 883.)

Comparing the former statute with the present one leads to the conclusion that the legislature in adopting the present act meant to provide greater leeway for varying the features of the employment agreement under a retirement plan. Instead of limiting the exemption to differences in insurance coverage, as the earlier act did, the legislature granted employers leeway to offer different compensation or different terms, conditions or privileges of employment pursuant to a retirement system. The only limitation on varying these features of employment is the provision that the retirement system not be a subterfuge for or have the effect of unlawful discrimination. As thus interpreted, section 2 — 104(E)(1) exempts only a limited range of features which might be incorporated in a retirement system, but this does not include mandatory retirement itself.

The fact is that this section does not exempt any specific retirement plan; rather, it exempts only different standards of compensation or terms, conditions or privileges of employment applied by an employer pursuant to a plan. But, the exemption includes a proviso stating it does not reach different standards of compensation or terms, conditions or privileges of employment which have “the effect of unlawful discrimination.” When the exemption is construed in this way, the Illinois Human Rights Act encourages the employment of older workers by permitting the employer to apply different standards when paying pensions to or making contributions for them so that hiring them is not more costly than hiring younger persons.

The complainants have offered examples of the kinds of different treatment under a retirement system that would fit within section 2—104(E)(1). Mandatory retirement would not, but, if, for example, an employer wanted to employ older workers, the employer could require a greater contribution to the pension fund from them. The greater contribution would be justified by the fewer years the older workers could expect to be employed before retirement and their desire to receive equal pensions upon retirement. According to the complainants in this action, the Illinois Human Rights Act allows such a distinction in the standards of compensation, so long as the distinction is not actually a subterfuge for age discrimination, an excuse adopted by the employer to slash the take-home pay of older workers and discourage them to the extent that none will bother to apply for work at all. Or, an employer might provide different health insurance benefits to employees, with older workers receiving different benefits because of the different health risks they face. The statute would exempt such treatment from the prohibitions of the Illinois Human Rights Act.

The third weakness in the City Colleges’ position is that their retirement system, even if it otherwise qualified for the section 2-104(E)(1) exemption, would run afoul of the proviso at the end of that section—that the retirement “system or its administration not have the effect of unlawful discrimination.” The circuit court’s difficulty in interpreting the statute was caused by this latter phrase. The judge felt that under the City Colleges’ interpretation of section 2-104(E)(1), the Act exempted the very discrimination it was banning. He reasoned that the Act first banned all age discrimination, then exempted retirement, but finally restricted the exemption to retirements not based on age.

The proviso does not, as the circuit court thought, swallow up the whole exemption; the exemption, with its proviso, is not, therefore, meaninglessly vague. The essential intent is discernible. The focus in assessing whether applying'a different standard is permitted by section 2 — 104(E)(1) or prohibited by that section’s proviso is on the effects the system will have with the different standard incorporated into it. So long as the different standards of compensation or terms, conditions or privileges of employment, that is their overall impact, do not turn the system into one which favors or disfavors employees on the basis of age or any other unlawful discrimination, the system does not run afoul of the proviso. Thus, in the case of the differing monthly amounts contributed to a pension plan or the different health benefits in the examples set forth above, the employees’ compensation or benefits are based on age. The system is nevertheless legal because it does not have the effect of discriminating against employees based on their age. One employee may have to contribute more per month for pension benefits than another; but that is only because he will be paying for fewer months before he retires. On the whole, the effect is neutral, as would be expected of a practice based on objective considerations. The system even with the differing pension contributions is not only fair and rational, but also necessary to prevent the employer’s obligation to hire without regard to age from being undermined by the exorbitant cost of hiring older people.

A compulsory retirement age, in contrast, is neither necessary nor fair. Not only is it feasible to run a retirement system without a compulsory retirement age, these teachers are members of a system that does it. The retirement system under which the City Colleges are covered is the State University Retirement System Act (Ill. Rev. Stat. 1979, ch. 108½, par. 15—101 et seq.). Nothing in the State University Retirement System Act requires retirement at any given age, and benefits are based not upon age but upon service; in other words, the basic pension scheme that applies to those covered by the State system operates independently of age. The compulsory retirement age is not even a feature included in the basic system. It is imposed on top of the system, by the City Colleges themselves, for no obvious reason but that the City Colleges apparently prefer younger faculty members. And it is apparent that retirement and working can hardly be considered as substantially the same status and of more or less equivalent value to the employee and cost to the employer. The effect of the City Colleges’ added requirement for. retirement at 65 is precisely and solely that only those under 65 may work, an effect so dramatic and arbitrary that it must be considered unlawful discrimination. Incorporating in a system a provision for retirement of employees under 70 solely because of their age is not permitted by the exemptions allowed by section 2—104(E)(1) because it precludes the system from satisfying the mandate that a retirement system and its administration not have the effect of unlawful discrimination.

In summary, no exemptions to the Illinois Human Rights Act justified the City Colleges’ action. It is therefore unnecessary to address the City Colleges’ further contention that the mandatory retirement of the teachers here was pursuant to a retirement system that was not a subterfuge as defined by section 2—104(E).

The City Colleges finally assert that the Illinois Human Rights Act was meant to regulate only those retirements which were made pursuant to a retirement system adopted after the Act was passed. The City Colleges argue that the Illinois Human Rights Act did not outlaw all existing retirement systems which called for retirement at age 65. They call on this court to give prospective application to this statute only. The general rule is that a statute is deemed to operate prospectively only, and will not be given a retroactive operation unless the language of the statute is clear. (Anderson v. Board of Education (1945), 390 Ill. 412, 430.) But this statute is not operating retroactively. It does not make mandatory retirement at age 65 before its effective date illegal; it forbids only unlawful discrimination after that date.

There is no “grandfather clause” allowing existing illegal discrimination to continue. The situation may be compared to that under the worker’s compensation statute. Proceedings under that statute are governed by the law in effect at the time of the injury. (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 51.) Similarly, proceedings under the Illinois Human Rights Act should be governed by the law in effect at the time of the purported illegal job discrimination, not at the time the relationship of employment began.

Section 2—104(E) of the Illinois Human Rights Act is not unconstitutionally vague. Properly interpreted, it forbids the compulsory retirement of the complainants before they reach the age of 70. The circuit court reached that result, although on other grounds. Its decision is therefore affirmed.

Judgment affirmed.