author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52175.
    CLARENCE E. THOMAS, Appellant, v. THE INDUSTRIAL COMMISSION (The Levy Company, Appellee).

      Opinion filed January 23, 1980.

      Peter Francis Geraci, of Chicago, for appellant.
    Kane, Doy & Harrington, of Chicago (Arthur O. Kane, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In proceedings under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) an arbitrator for the Industrial Commission found that claimant, Clarence Thomas, was disabled as a result of accidental injuries sustained while he was employed by respondent, The Levy Company. The arbitrator awarded claimant compensation of $244 per week for a period of eight weeks for temporary total incapacity, and further found that claimant had failed to prove that he sustained any permanent disability. On review, without submission of additional evidence by either party, the Commission affirmed the arbitrator’s decision. On certiorari, the circuit court of Cook County confirmed the decision of the Industrial Commission, and claimant appealed to this court pursuant to Rule 302(a) (58 Ill. 2d R. 302(a)). Claimant contends that the arbitrator exceeded his authority under section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) by entering a finding on the issue of permanent disability, and that respondent’s failure to introduce impeaching evidence in rebuttal, the foundation for which was laid on cross-examination, is reversible error requiring a remand on the issue of temporary total disability.

On July 6, 1977, claimant was employed as a dry wall taper for respondent. In the course of performing his duties, it became necessary for claimant to obtain additional materials from respondent’s material trailer. The bed of this trailer was approximately 3Vz feet to 4 feet above the road surface. Respondent had supplied a pallet (a portable platform, usually double-faced, on which materials are stacked for storage or transportation, as in a warehouse), to be used as a ladder, for entering and exiting the trailer. Claimant gathered the materials needed and started down the pallet carrying a 25-pound bag of taping cement under each arm. As claimant stepped on the pallet, the pallet gave way, causing him to fall to the ground and sustain injury to both knees when he hit the gravel road. He returned to his job site, notified his supervisor of the injury, and continued to work as scheduled through the morning of July 8, 1977. At noon on July 8, claimant left his job to consult his family physician, Dr. George Graham. Claimant did not return to work. Dr. Graham treated claimant conservatively for approximately four weeks. On August 8, 1977, claimant was hospitalized for a stomach disorder. While in the hospital, claimant continued to complain of pain in his knees. He remained hospitalized through August 26, 1977.

Respondent paid claimant temporary total disability payments through September 30, 1977, at which time the payments were discontinued. On October 5, 1977, claimant filed a claim with the Industrial Commission and, on October 12, a petition to advance his cause for hearing. Claimant alleged in his petition that respondent had discontinued payment of temporary total compensation on September 30, 1977, that claimant was without funds to support his family, and that he was prevented from working as a result of injuries sustained in his employment as evidenced by a copy of his physician’s report attached to the petition. On November 22, 1977, claimant filed another petition requesting an immediate hearing of his cause. Claimant alleged in this petition that he was disabled as a result of an injury sustained in his employment, that he was currently under the care of a physician and that, despite demands, respondent had discontinued the payment of temporary total compensation. The relief sought by claimant was an order advancing his cause for immediate hearing on the issue of temporary total compensation. The Commission advanced the cause for an immediate hearing on the basis of this petition. In the proceedings before the arbitrator, the parties stipulated, in addition to certain facts and issues not relevant to this appeal, that the issues in dispute were “the amount of additional temporary compensation to which petitioner is entitled, if any, and the nature and extent of the injury, if any. ”

Claimant testified at the hearing that he was currently under the care of a physician, that he continued to experience pain in his legs and back, and that he was unable to stand for extended periods of time as required by his employment. The medical reports introduced into evidence by claimant, the reports of two treating physicians, concluded that claimant was currently unable to return to work. These reports expressed no opinion on the issue of permanent disability.

Respondent introduced into evidence the reports of his examining physicians, both concluding that claimant was currently ready to return to work, stating further that there was no evidence of any residual impairment to claimant’s knees. In addition, respondent introduced into evidence the report of a consulting orthopedist who examined claimant while he was hospitalized in August 1977. This report concluded that his current condition was unrelated to the fall from the trailer. Respondent also introduced records of claimant’s prior hospitalizations. His first hospitalization was in 1970 for the treatment of blunt trauma injuries to claimant’s neck, stomach, and back. His second hospitalization was for tonsilitis in 1976.

The first issue presented to this court is the scope of the proceedings before the arbitrator, specifically, the validity of the arbitrator’s finding on the issue of permanent disability. Both claimant and respondent rely upon section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) to resolve this issue. The section provides:

“The Arbitrator or committee of arbitration may find that the disabling condition is temporary and has not yet reached a permanent condition and may order the payment of compensation up to the date of the hearing, which award shall be reviewable and enforceable in the same manner as other awards, and in no instance be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability, but shall be conclusive as to all other questions except the nature and extent of said disability.”

Claimant contends that the arbitrator is precluded by this provision from entering a finding on the issue of permanent disability in what claimant characterizes as a “19(b)” proceeding. Respondent contends that this provision vests the arbitrator with the discretion to enter any finding supported by the manifest weight of the evidence. We do not find this provision dispositive of the issue presented. It is clear that section 19(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) allows the arbitrator to refrain from ruling prematurely on the issue of permanent disability, but this presumes that the issue is properly before the arbitrator.

In the present case, the proceeding before the arbitrator was conducted pursuant to claimant’s petition for an immediate hearing. Claimant alleged in his petition that he was disabled as a result of an injury sustained while working, that he was currently under the care of a physician, and that despite demands, respondent had discontinued payment of temporary total disability benefits. Claimant made no allegation related to permanent disability. The relief sought by claimant was an order advancing his cause for an immediate hearing solely on the issue of temporary total compensation. We cannot agree with respondent that there was no indication in the record that claimant was proceeding on the limited issue of temporary total compensation.

At the proceeding before the arbitrator, the parties entered into a stipulation of the type commonly used in compensation proceedings to expedite the hearing of the claim. The parties agreed that the issues in dispute were “the amount of temporary compensation to which petitioner is entitled, if any, and the nature and extent of the injury, if any.” Respondent does not suggest, nor do we find, that the stipulation tendered the issue of permanent disability. In the absence of a stipulation to the contrary, the nature and extent of claimant’s injury are in issue in every compensation case. The stipulation must be construed in relation to claimant’s petition for immediate hearing, and that petition limited the arbitrator to the issue of temporary disability. We therefore find that the only issue presented by the stipulation was whether claimant was temporarily totally disabled.

Support for our conclusion is also found in the fact that claimant introduced evidence only on the issue of temporary disability. At the hearing before the arbitrator, claimant introduced the reports of two treating physicians which concluded that claimant was currently unable to return to work. These reports expressed no opinion related to the issue of permanent disability. The medical summaries introduced by respondent concluded that claimant was able to return to work, and stated further that there was no evidence of residual impairment. Respondent cannot unilaterally broaden the scope of the proceeding before the arbitrator by introducing evidence unrelated to issues presented in claimant’s petition for immediate hearing. For the reasons stated, we find that the issue of permanent disability was not presented to the arbitrator and the finding on this issue is therefore null and void.

In reaching the conclusion that claimant may limit the scope of the hearing to the issue of temporary total disability, we find persuasive the fact that subsequent to the proceedings in the case, the Commission, pursuant to the rule-making authority vested in it by section 16 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.16), has promulgated a rule specifically authorizing this procedure. The rule provides:

“By agreement of the parties, a cause on the arbitration call may be advanced to an earlier date for hearing, including a date earlier than the first fixed by the Commission. In the event that the parties do not agree, the Commission in its discretion may advance the cause upon a hearing had on the petition of either side where good cause is shown that the case merits an immediate hearing.
Petitioner alleging that (1) he is unable to work because of a disability compensable under the Illinois Workmen’s Compensation Act or Illinois Occupational Diseases Act, and (2) he is not receiving temporary total disability or medical benefits to which he is entitled, shall file a Petition for Immediate Hearing on an appropriate form provided by the Commission. Said petition shall set forth (1) a description of the attempts by parties or counsel to resolve the dispute requiring an immediate hearing, including the name of the representative of the opposing party with whom the Petitioner or his attorney conferred, the date of the conference, and the result of the conference; and (2) a statement that a signed physician’s report of recent date relating to the employee’s current inability to return to work, or a description of such other evidence of temporary total disability as is appropriate under the circumstances, has been delivered to the Respondent. ***” (Rules Governing Practice Before The Industrial Commission Under The Workmen’s Compensation And Occupational Diseases Act, Rule 2 — 6 (1978).)

The remedial purpose of this summary procedure is to allow a claimant, in the event that the parties disagree and upon good cause shown, to proceed immediately on the issue of temporary total disability, avoiding the burden of preparing the entire case.

The second issue presented to this court is whether respondent’s failure to introduce contradicting evidence, the foundation for which was laid upon cross-examination, is reversible error requiring us to set aside the arbitrator’s finding on temporary disability. Claimant does not contend that the arbitrator’s award of eight weeks compensation for temporary disability is contrary to the manifest weight of the evidence.

On cross-examination, respondent questioned claimant concerning claimant’s participation in a decorating business, Thomas Decorating Service, conducted by claimant with his brother. Claimant admitted his involvement in the business, stating that he did side jobs in addition to his work for respondent, but denied having worked with his brother since his fall from respondent’s trailer. Respondent further questioned claimant concerning prior injuries to his knees, specifically, injuries resulting in claimant’s hospitalization for five days at Jackson Park Hospital in April 1977. Claimant denied any previous injuries to his knees and denied the specific hospitalization to which respondent had referred.

On redirect examination, claimant testified that he had not worked with his brother subsequent to the fall from respondent’s trailer. Claimant further testified that he had not sustained previous injuries to his knees, nor had he been hospitalized in April.

Respondent failed to introduce contradicting evidence on either of these matters. Claimant did not move to strike the questions related to these matters when it became clear that respondent would not produce contradicting evidence.

We agree with claimant that respondent’s failure to introduce contradicting evidence, the foundation for which was laid upon cross-examination, is error. The purpose of this practice is to substitute insinuation for the proof required to sustain respondent’s charges.

We do not agree, however, that the decision of the arbitrator must be reversed. The arguments now made for the first time on appeal, including claimant’s arguments related to questions concerning settlement negotiations, prior injuries, and interference with claimant’s redirect examination, were waived by claimant’s failure to raise them before the arbitrator. (Forrest v. Industrial Com. (1979), 77 Ill. 2d 86, 92.) Claimant should have made a motion to strike respondent’s questions related to these matters when it became apparent that respondent could not introduce contradicting evidence. (People v. Nuccio (1969), 43 Ill. 2d 375, 394.) Furthermore, in the absence of some indication to the contrary, it will be presumed that an arbitrator considers only competent and proper evidence in reaching his decision. While there are limits to the presumption that the arbitrator is immune to prejudicial insinuation, we find after consideration of the record that the arbitrator’s decision on the issue of temporary total compensation is not against the manifest weight of the evidence.

The decision of the circuit court is affirmed on the issue of temporary total disability, and reversed on the issue of permanent disability, and the cause remanded to the Industrial Commission for further proceedings on the issue of permanent disability.

Affirmed in part and reversed in part; cause remanded.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD MR. CHIEF JUSTICE GOLDENHERSH, with whom MR. JUSTICE MORAN MR. JUSTICE MORAN, with whom MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 51431.
    JACQUELINE JARRETT, Appellee, v. WALTER JARRETT, Appellant.

      Opinion filed December 20, 1979.

    — Rehearing denied February 1, 1980.

      GOLDENHERSH, C.J., and MORAN, J., dissenting.
    Lois Solomon and Arthur M. Solomon, of Solomon & Behrendt, of Chicago, for appellant.
    Michael H. Minton, of Facchini & Minton, of Arlington Heights, for appellee.
    Donald C. Schiller, Douglas P. Maloney, and James T. Friedman, of Chicago, for amicus curiae American Academy of Matrimonial Lawyers (Illinois Chapter).
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On December 6, 1976, Jacqueline Jarrett received a divorce from Walter Jarrett in the circuit court of Cook County on grounds of extreme and repeated mental cruelty. The divorce decree, by agreement, also awarded Jacqueline custody of the three Jarrett children subject to the father’s right of visitation at reasonable times. Seven months later, alleging changed conditions, Walter petitioned the circuit court to modify the divorce decree and award him custody of the children. The circuit court granted his petition subject to the mother’s right of visitation at reasonable times, but a majority of the appellate court reversed (64 Ill. App. 3d 932), and we granted leave to appeal.

During their marriage, Walter and Jacqueline had three daughters, who, at the time of the divorce, were 12, 10 and 7 years old. In addition to custody of the children, the divorce decree also awarded Jacqueline the use of the family home, and child support; Walter received visitation rights at all reasonable times and usually had the children from Saturday evening to Sunday evening. In April 1977, five months after the divorce, Jacqueline informed Walter that she planned to have her boyfriend, Wayne Hammon, move into the family home with her. Walter protested, but Hammon moved in on May 1, 1977. Jacqueline and Hammon thereafter cohabited in the Jarrett home but did not marry.

The children, who were not “overly enthused” when they first learned that Hammon would move into the family home with them, asked Jacqueline if she intended to marrv Hammon, but Jacqueline responded that she did not know. At the modification hearing Jacqueline testified that she did not want to remarry because it was too soon after her divorce; because she did not believe that a marriage license makes a relationship; and because the divorce decree required her to sell the family home within six months after remarriage. She did not want to sell the house because the children did not want to move and she could not afford to do so. Jacqueline explained to the children that some people thought it was wrong for an unmarried man and woman to live together but she thought that what mattered was that they loved each other. Jacqueline testified that she told some neighbors that Hammon would move in with her but that she had not received any adverse comments. Jacqueline further testified that the children seemed to develop an affectionate relationship with Hammon, who played with them, helped them with their homework, and verbally disciplined them. Both Jacqueline and Hammon testified at the hearing that they did not at that time have any plans to marry. In oral argument before this court Jacqueline’s counsel conceded that she and Hammon were still living together unmarried.

Walter Jarrett testified that he thought Jacqueline’s living arrangements created a moral environment which was not a proper one in which to raise three young girls. He also testified that the children were always clean, healthy, well dressed and well nourished when he picked them up, and that when he talked with his oldest daughter, Kathleen, she did not object to Jacqueline’s living arrangement.

The circuit court found that it was “necessary for the moral and spiritual well-being and development” of the children that Walter receive custody. In reversing, the appellate court reasoned that the record did not reveal any negative effects on the children caused by Jacqueline’s cohabitation with Hammon, and that the circuit court had not found Jacqueline unfit. It declined to consider potential future harmful effects of the cohabitation on the children. 64 Ill. App. 3d 932, 937.

Both parties to this litigation have relied on sections 602 and 610 of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 602, 610), which provide:

“Sec. 602. Best interest of child.
(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community; and
(5) the mental and physical health of all individuals involved.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.”
“Sec. 610. Modification.
(a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
* * *
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.
(c) ***”

We note initially, however, that this appeal from the custody modification order was taken on August 11, 1977, two months before the effective date of the new act, and that the new act expressly provides that prior law shall govern such an appeal (Ill. Rev. Stat. 1977, ch. 40, par. 801(d)). While the sections of the new act governing modification of custody orders require explicit findings (see In re Custody of Hame (1979), 77 Ill. 2d 414), we believe those sections in substance codify the prior decisional law, and that our decision in this appeal is not affected by the applicability or nonapplicability of the new act.

The standards applicable to petitions for modification of custody appearing in section 610(b) are substantially those to which Illinois courts have long adhered. In Nye v. Nye (1952), 411 Ill. 408, 416, this court said that a divorce decree “is res judicata as to the facts which existed at the time it was entered” and that “[n] ew conditions must have arisen to warrant the court changing its prior custody determination. ” Moreover, the guiding principle in custody adjudications is the best interests of the child (411 Ill. 408, 415) and the change in conditions must adversely affect the best interests of the child (411 Ill. 408, 416). The prior statute also directed the attention of the court to the interests of the child in custody adjudications (sections 13 and 18 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 14, 19), repealed by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 to 802)). Although prior Illinois decisions did not explicitly articulate the new act’s command that no change be made in custody unless the harm inherent in any change in custody is outweighed by the advantages to the child of the new environment, they did recognize that continuity in the child’s environment is in itself important. (Bergan v. Bergan (1976), 42 Ill. App. 3d 740, 743; Holloway v. Holloway (1973), 10 Ill. App. 3d 662, 665; Codings v. Codings (1970), 120 Ill. App. 2d 125, 128; Jenkins v. Jenkins (1967), 81 Ill. App. 2d 67, 72, 74; Leary v. Leary (1965), 61 Ill. App. 2d 152, 155.) Finally, the commands of sections 602 and 610 of the new act to consider only whether the child’s environment endangers his physical, mental, moral and emotional health (Ill. Rev. Stat. 1977, ch. 40, par. 610) and to disregard any conduct of the custodian that does not affect his relationship with the child (Ill. Rev. Stat. 1977, ch. 40, par. 602) reemphasize the principle stated in Nye v. Nye (1952), 411 Ill. 408, that the focus of custody determinations must be the welfare of the child.

The chief issue in this case is whether a change of custody predicated upon the open and continuing cohabitation of the custodial parent with a member of the opposite sex is contrary to the manifest weight of the evidence in the absence of any tangible evidence of contemporaneous adverse effect upon the minor children. Considering the principles previously enunciated, and the statutory provisions, and nrior decisions of the courts of this State, we conclude that under the facts in this case the trial court properly transferred custody of the Jarrett children from Jacqueline to Walter Jarrett.

The relevant standards of conduct are expressed in the statutes of this State: Section 11 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 8) provides that “[a] ny person who cohabits or has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious.” In Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 61-62, we emphasized the refusal of the General Assembly in enacting the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) to sanction any nonmarital relationships and its declaration of the purpose to “strengthen and preserve the integrity of marriage and safeguard family relationships” (Ill. Rev. Stat. 1977, ch. 40, par. 102(2)).

Jacqueline argues, however, that her conduct does not affront public morality because such conduct is now widely accepted, and cites 1978 Census Bureau statistics that show 1.1 million households composed of an unmarried man and woman, close to a quarter of which also include at least one child. This is essentially the same argument we rejected last term in Hewitt v. Hewitt (1979), 77 Ill. 2d 49, and it is equally unpersuasive here. The number of people living in such households forms only a small percentage of the adult population, but more to the point, the statutory interpretation urged upon us by Jacqueline simply nullifies the fornication statute. The logical conclusion of her argument is that the statutory prohibitions are void as to those who believe the proscribed acts are not immoral, or, for one reason or another, need not be heeded. So stated, of course, the argument defeats itself. The rules which our society enacts for the governance of its members are not limited to those who agree with those rules — they are equally binding on the dissenters. The fornication statute and the Illinois Marriage and Dissolution of Marriage Act evidence the relevant moral standards of this State, as declared by our legislature. The open and notorious limitation on the former’s prohibitions reflects both a disinclination to criminalize purely private relationships and a recognition that open fornication represents a graver threat to public morality than private violations. Conduct of that nature, when it is open, not only violates the statutorily expressed moral standards of the State, but also encourages others to violate those standards, and debases public morality. While we agree that the statute does not penalize conduct which is essentially private and discreet (People v. Cessna (1976), 42 Ill. App. 3d 746, 749), Jacqueline’s conduct has been neither, for she has discussed this relationship and her rationalization of it with at least her children, her former husband and her neighbors. It is, in our judgment, clear that her conduct offends prevailing public policy. Lyman v. People (1902), 198 Ill. 544, 549-50; Searls v. People (1852), 13 Ill. 597, 598; People v. Potter (1943), 319 Ill. App. 409, 410-11, 416.

Jacqueline’s disregard for existing standards of conduct instructs her children, by example, that they, too, may ignore them (see Stark v. Stark (1973), 13 Ill. App. 3d 35, Brown v. Brown (1977), 218 Va. 196, 237 S.E.2d 89), and could well encourage the children to engage in similar activity in the future. That factor, of course, supports the trial court’s conclusion that their daily presence in that environment was injurious to the moral well-being and development of the children.

It is true that, as Jacqueline argues, the courts have not denied custody to every parent who has violated the community’s moral standards, nor do we now intimate a different rule. Rather than mechanically denying custody in every such instance, the courts of this State appraise the moral example currently provided and the example which may be expected by the parent in the future. We held in Nye v. Nye (1952), 411 Ill. 408, 415, that past moral indiscretions of a parent are not sufficient grounds for denying custody if the parent’s present conduct establishes the improbability of such lapses in the future. This rule focuses the trial court’s attention on the moral values which the parent is actually demonstrating to the children.

Since the decision in Nye, the appellate courts of this State have repeatedly emphasized this principle, particularly when the children were unaware of their parent’s moral indiscretion. (Hendrickson v. Hendrickson (1977), 49 Ill. App. 3d 160; Strand v. Strand (1976), 41 Ill. App. 3d 651; Christensen v. Christensen (1975), 31 Ill. App. 3d 1041; Huey v. Huey (1975), 25 Ill. App. 3d 20; Mulvihill v. Mulvihill (1974), 20 Ill. App. 3d 440; Hahn v. Hahn (1966), 69 Ill. App. 2d 302; Leary v. Leary (1965), 61 Ill. App. 2d 152; Jayroe v. Jayroe (1965), 58 Ill. App. 2d 79; Arden v. Arden (1960), 25 Ill. App. 2d 181; Wolfrum v. Wolfrum (1955), 5 Ill. App. 2d 471.) At the time of this hearing, however, and even when this case was argued orally to this court, Jacqueline continued to cohabit with Wayne Hammon and had done nothing to indicate that this relationship would not continue in the future. Thus the moral values which J acqueline currently represents to her children, and those which she may be expected to portray to them in the future, contravene statutorily declared standards of conduct and endanger the children’s moral development.

Jacqueline argues, however, that three recent cases— Burris v. Burris (1979), 70 Ill. App. 3d 503, In re Marriage of Farris (1979), 69 Ill. App. 3d 1042, and Rippon v. Rippon (1978), 64 Ill. App. 3d 465 — indicate that the moral indiscretion of a parent is not sufficient ground for denial of custody. In Rippon the mother who had committed the indiscretion planned to marry her paramour and there was no indication of future misconduct. Rippon therefore falls within the rule set out in Nye. Both Farris and Burris were rendered after, and relied upon, the appellate decisions in this case (64 Ill. App. 3d 932) and in Hewitt v. Hewitt (1978), 62 Ill. App. 3d 861, both of which we have now reversed.

Jacqueline also argues, and the appellate court agreed (64 Ill. App. 3d 932, 937), that the trial court’s decision to grant custody of the children to Walter Jarrett was an improper assertion by the trial judge of his own personal moral beliefs. She further argues that the assertion of moral values in this case, as in Hewitt v. Hewitt (1979), 77 Ill. 2d 49, is a task more appropriately carried out by the legislature. As pointed out earlier, however, it is the legislature which has established the standards she has chosen to ignore, and the action of the trial court merely implemented principles which have long been followed in this State.

The mother argues, too, that section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610) requires the trial court to refrain from modifying a prior custody decree unless it finds that the children have suffered actual tangible harm. The statute, however, directs the trial court to determine whether “the child’s present environment endangers seriously his physical, mental, moral or emotional health.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)(3).) In some cases, particularly those involving physical harm, it may be appropriate for the trial court to determine whether the child is endangered by considering evidence of actual harm. In cases such as this one, however, such a narrow interpretation of the statute would defeat its purpose. At the time of the hearing the three Jarrett children, who were then 12, 10 and 7 years old, were obviously incapable of emulating their mother’s moral indiscretions. To wait until later years to determine whether Jacqueline had inculcated her moral values in the children would be to await a demonstration that the very harm which the statute seeks to avoid had occurred. Measures to safeguard the moral well-being of children, whose lives have already been disrupted by the divorce of their parents, cannot have been intended to be delayed until there are tangible manifestations of damage to their character.

While our comments have focused upon the moral hazards, we are not convinced that open cohabitation does not also affect the mental and emotional health of the children. Jacqueline’s testimony at the hearing indicated that when her children originally learned that Wayne Hammon would move in with them, they initially expected that she would marry him. It is difficult to predict what psychological effects or problems may later develop from their efforts to overcome the disparity between their concepts of propriety and their mother’s conduct. (Gehn v. Gehn (1977), 51 Ill. App. 3d 946, 949.) Nor will their attempts to adjust to this new environment occur in a vacuum. Jacqueline’s domestic arrangements are known to her neighbors and their children; testimony at the hearing indicated that Wayne Hammon played with the Jarrett children and their friends at the Jarrett home and also engaged in other activities with them. If the Jarrett children remained in that situation, they might well be compelled to try to explain Hammon’s presence to their friends and, perhaps, to endure their taunts and jibes. In a case such as this the trial judge must also weigh these imponderables, and he is not limited to examining the children for current physical manifestations of emotional or mental difficulties.

Finally, we do not believe that the United States Supreme Court’s opinion in Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, requires a different result. In Stanley the Supreme Court found that Illinois statutes created a presumption that an unwed father is unfit to exercise custody over his children. The court held that depriving an unwed father of his illegitimate children without a prior hearing to determine his actual rather than presumptive unfitness, when the State accords that protection to other parents, deprives him of equal protection of the law.

The case before us is fundamentally different. The trial court did not presume that Jacqueline was not an adequate parent, as the juvenile court in effect did in Stanley. Rather the trial court recognized that the affection and care of a parent do not alone assure the welfare of the child if other conduct of the parent threatens the child’s moral development. Since the evidence indicated that Jacqueline had not terminated the troublesome relationship and would probably continue it in the future, the trial court transferred custody to Walter Jarrett, an equally caring and affectionate parent whose conduct did not contravene the standards established by the General Assembly and earlier judicial decisions. Its action in doing so was not contrary to the manifest weight of the evidence.

Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court of Cook County.

Appellate court reversed; circuit court affirmed.

MR. CHIEF JUSTICE GOLDENHERSH, with whom MR. JUSTICE MORAN

joins, dissenting:

The majority states, “The chief issue in this case is whether a change of custody predicated upon the open and continuing cohabitation of the custodial parent with a member of the opposite sex is contrary to the manifest weight of the evidence in the absence of any tangible evidence of contemporaneous adverse effect upon the minor children.” (78 Ill. 2d at 345.) An examination of the opinion fails to reveal any other issue, and the effect of the decision is that the plaintiff’s cohabitation with Hammon per se was sufficient grounds for changing the custody order previously entered. This record shows clearly that the children were healthy, well adjusted, and well cared for, and it should be noted that both the circuit and appellate courts made no finding that plaintiff was an unfit mother. The majority, too, makes no such finding and based its decision on a nebulous concept of injury to the children’s “moral well-being and development.” (78 Ill. 2d at 347.) I question that any competent sociologist would attribute the increase of “live in” unmarried couples to parental example.

The fragility of its conclusion concerning “prevailing public policy” is demonstrated by the majority’s reliance on cases decided by this court in 1852 (Searls v. People, 13 Ill. 597) and 1902 (Lyman v. People, 198 Ill. 544), and an appellate court decision (People v. Potter (1943), 319 Ill. App. 409) which, rather than “prevailing public policy,” more clearly indicates the prejudice extant in that period against interracial sexual relations.

As the appellate court pointed out, the courts should not impose the personal preferences and standards of the judiciary in the decision of this case. Courts are uniquely equipped to decide legal issues and are well advised to leave to the theologians the question of the morality of the living arrangement into which the plaintiff had entered.

As a legal matter, simply stated, the majority has held that on the basis of her presumptive guilt of fornication, a Class B misdemeanor, plaintiff, although not declared to be an unfit mother, has forfeited the right to have the custody of her children. This finding flies in the face of the established rule that, in order to modify or amend an award of custody, the evidence must show that the parent to whom custody of the children was originally awarded is unfit to retain custody, or that a change of conditions makes a change of custody in their best interests. This record fails to show either. Mr. Justice Moran and I dissent and would affirm the decision of the appellate court.

MR. JUSTICE MORAN, with whom MR. CHIEF JUSTICE GOLDENHERSH

joins, dissenting:

I join in the dissent of the chief justice, but also dissent separately. My primary disagreement with the majority lies with its countenancing a change of custody based solely on a conclusive presumption that harm to the Jarrett children stemmed from Jacqueline’s living arrangements. The majority purports to follow the Illinois Marriage and Dissolution of Marriage Act. Yet, under that act, only on the basis of fact can there be a finding that a change in circumstances has occurred and that modification of the prior custody judgment is necessary to serve the best interest of the children. (Ill. Rev. Stat. 1977, ch. 40, par. 610(b).) The court is not to consider conduct of a custodian if that conduct does not affect his relationship to the child. (Ill. Rev. Stat. 1977, ch. 40, par. 602(b).) In this case, not one scintilla of actual or statistical evidence of harm or danger to the children has been presented. To the contrary, all of the evidence of record, as related by the majority, indicates that under Jacqueline’s custodianship the children’s welfare and needs were met. Also, the trial court expressly declined to find Jacqueline unfit. Nevertheless, the majority’s finding of a violation of the seldom-enforced fornication statute effectively foreclosed any further consideration of the custody issue. Instead of focusing solely on the best interest of the children — the “guiding star” (Nye v. Nye (1952), 411 Ill. 408, 415) — the majority has utilized child custody as a vehicle to punish Jacqueline for her “misconduct.” Such selective enforcement of a statute is inappropriate and, especially in the child-custody context, unfortunate.

The majority decision also is at odds with the principle of Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208. The constitutional infirmity of the statutory presumption in Stanley casts doubt on the validity of the judicially created conclusive presumption in this case. After Stanley, an unwed father may not be deprived of his illegitimate children without a prior hearing to determine his actual fitness. Similarly, Jacqueline should not be deprived of the children in the absence of evidence that a change is necessary to serve the best interest of the children. A hearing at which custody is determined on the basis of the conclusive presumption sanctioned by the majority amounts to no hearing at all.


author: MR. JUSTICE RYAN

text:
    (No. 51698.
    MORTON GROVE PARK DISTRICT v. AMERICAN NATIONAL BANK AND TRUST COMPANY, Trustee, et al., Appellants (Edward J. Rosewell, County Treasurer, Appellee).

      Opinion filed January 23, 1980.

      Earl L. Neal, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Mercer Cook and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

American National Bank and Trust Company of Chicago and others (hereinafter referred to as defendants or the condemnees), appeal from an order denying them the income earned on a condemnation award deposited with the treasurer of Cook County, by the condemnor, Morton Grove Park District (Morton Grove), during the time that expired while the condemnees appealed the amount of the award. It is now contended that denying the condemnees the income earned on the money deposited with the treasurer constitutes a taking without just compensation in violation of the Illinois and United States constitutions.

The facts of the case are undisputed. Defendants were the title owners of several parcels of real property in Morton Grove. The park district (not a party to this appeal) filed a petition to condemn the property on December 11, 1972, pursuant to the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 1 et seq.). A jury found the fair market value of the property to be $1 million, and a judgment was entered on the verdict on January 31, 1974. The award, plus $15,478.06, the statutory interest on the award from the date of the judgment until the date of deposit, was deposited by the park district with the county treasurer on April 29, 1974. Pursuant to section 13 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 13), the court entered an order on May 9, 1974, placing the park district in possession of the land. The order also required a $200,000 surety bond to secure the payment of such compensation as may be finally adjudged as provided in section 13.

Defendants appealed the amount of the award. During the appeal the park district had the possession and use of the condemned property and the treasurer of Cook County held the award. The appellate court affirmed both the determination of value and order transferring possession to the park district pursuant to section 13 of the Act. (.Morton Grove Park District v. American National Bank & Trust Co. (1976), 39 Ill. App. 3d 426.) This court denied leave to appeal. Defendants then petitioned the trial court for an order upon the county treasurer to pay out the $1,015,478.06 plus interest earned thereon from the date it was deposited until the date of payment to defendants. The award had earned $92,357.08 through investment by the county treasurer. The trial court ordered the $1,015,478.06 paid to defendants on November 10, 1976, but denied defendants’ petition for payment of the earnings on the award. The appellate court affirmed the trial court’s decision. (67 Ill. App. 3d 709.) We allowed defendants’ petition for leave to appeal. It is agreed that the award earned $92,357.08.

After just compensation has been determined in a condemnation suit, an award earns interest from the time the judgment is entered until the condemnor pays the award to the county treasurer. When the award, and any statutory interest that has accrued, are deposited with the treasurer, as provided in section 14 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 14), the statutory and constitutional requirements of just compensation for the property taken are satisfied. (Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 546.) Section 13 of the Act provides that when the party in whose favor an award has been entered appeals, the condemnor shall, notwithstanding, have the right to use the property upon entering into a bond conditioned on the payment of such compensation as may be finally adjudged. Pursuant to section 13, the trial court in this case entered an order authorizing the park district to take possession of the property upon the filing of a bond in the amount of $200,000, conditioned as required by that section. When the award was paid to the county treasurer and the bond filed as ordered, title to the condemned property vested in the park district and related back to the filing of the petition to condemn. (Chicago Park District v. Downey Coal Co. (1953), 1 Ill. 2d 54, 57; Accord, County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528; Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55.) When the park district deposited the award with statutory interest and filed the required bond, the requirement of just compensation from the condemnor with respect to the owners was satisfied. The income earned on the deposited monies should not therefore be considered as additional compensation from the condemnor for the property taken. The park district did all that was required, and its obligation to defendants ended when it made the deposit with the county treasurer and filed the required bond.

The owner of condemned property has a constitutional and statutory right to appeal a judgment in an eminent domain case. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1971, ch. 47, par. 12.) However, under sections 10(a) and 14 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, pars. 10(a), 14) the condemnee’s award is deposited with the county treasurer during the course of an appeal from an award and the money may not be withdrawn by the owner without abandoning all objections to the award, that is, abandoning the appeal. (See County of Cook v. Malysa (1968), 39 Ill. 2d 376, 379, where the court stated that eminent domain adheres to the general rule in civil cases that when a judgment has been voluntarily paid or its benefits accepted the question becomes moot.) Thus, the condemnor can terminate its obligation to the owner for interest on the award by paying the amount thereof, plus accrued interest, to the county treasurer, and can divest the owner of the property and enter into possession. However, the owner may not exercise the statutory and constitutional right to appeal without forfeiting the right to use the amount of the award pending the appeal.

In Moll v. Sanitary District (1907), 228 Ill. 633, the court stated that a condemnee who appeals an award and prevails is entitled on retrial to have submitted to the jury empaneled to fix just compensation the claim for interest for the time the condemnee was deprived of possession of his property, as an additional element of compensation. In dicta, relied on by the county treasurer, the court stated that if the appeal had been unsuccessful the condemnee would not be entitled to interest because the loss of the appeal demonstrates that he should have accepted the award and not appealed. Moll was decided under the Illinois Constitution of 1870, which did not grant an absolute right to appeal until it was amended in 1962. However, in the present case there is a constitutional right to appeal. Also, here the owners are seeking to recover the money the award earned while held by the county treasurer, and not interest on the award as an additional element of just compensation for the land taken.

In Illinois the payment of money to the county treasurer acts as a substitute for the condemned property under section 14 of the Eminent Domain Act. (Forest Preserve District v. Chicago Title & Trust Co. (1932), 351 Ill. 48, 55; Department of Public Works & Buildings v. Porter (1927), 327 Ill. 28, 34.) The funds held by the county treasurer pursuant to section 14 are private funds belonging to the condemnees, and as the treasurer admits in his brief, the condemnees may withdraw them at any time as long as they are willing to forgo appeal. (County of Cook v. Vander Wolf (1946), 394 Ill. 521, 528.) Defendants contend they are entitled to the money earned on the deposit.

Concerning the earnings of money deposited with the county treasurer the legislature has provided:

“All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the Benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (Ill. Rev. Stat. 1971, ch. 36, par. 22.1.)
“The term ‘county moneys’ shall include all monies to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer.” (Ill. Rev. Stat. 1971, ch. 36, par. 17.)

Relying on the literal meaning of these statutes, the trial court and the appellate court held that the money earned on the funds held by the county treasurer is to be deposited into the county corporate fund and not awarded to the condemn'ee. (67 Ill. App. 3d 709.) This means that the condemnee may not appeal the amount of the award unless he is willing to sacrifice the income earned on the award while the appeal is pending. We do not agree with this interpretation of the aforementioned statutory scheme.

Under the interpretation given to this statutory scheme by the appellate court, a government entity is entitled to condemn private property and then pay the awarded just compensation into the hands of another government entity for the benefit of the public while the private individual exercises his constitutional right to appeal what he may feel to be an unjust award. It is not just that the loss of income should be cast on the owner and the public be granted a windfall. The law by which the loss is occasioned is no act of the owner but an act of government that the owner has no power to repeal or modify so as to avoid the loss. (Moll v. Sanitary District (1907), 228 Ill. 633, 637.) Here the owners were deprived of their property and deprived of the use of the award which stood in place of the property taken for 30 months while they exercised the constitutional right to appeal. During that time the award earned $92,357.08. We hold that to deprive the owners of these earnings would violate their constitutional rights as discussed below.

Article I, section 15, of the 1970 Illinois Constitution and the fifth amendment of the United States Constitution prohibit the taking of private property for public use without just compensation. The Federal guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the fourteenth amendment. (Chicago, Burlington & Quincy R.R. Co. v. City of Chicago (1897), 166 U.S. 226, 233-34, 41 L. Ed. 979, 983-84, 17 S. Ct. 581, 583-84.) The use of the award money by the county treasurer, to earn interest which is not paid to the owner but to the county, is clearly a taking of private property for public use.

The word “property” as employed in the taking clause of the Federal and Illinois constitutions includes every interest anyone may have in any and everything which is the subject of ownership, together with the right to possess, use, enjoy and dispose of the same. (United States v. General Motors Corp. (1945), 323 U.S. 373, 377-78, 89 L. Ed. 311, 318, 65 S. Ct. 357, 359-60; Father Basil’s Lodge, Inc. v. City of Chicago (1946), 393 Ill. 246, 256; Metropolitan Trust Co. v. Jones (1943), 384 Ill. 248, 251; City of Belleville v. St. Clair County Turnpike Co. (1908), 234 Ill. 428, 434; Bailey v. People (1901), 190 Ill. 28, 33; United States v. 19.86 Acres of Land (7 th Cir. 1944), 141 F.2d 344.) The award money qualifies as property subject to the “taking clause” of the Federal and Illinois constitutions. The county had the use of the award money for 30 months. The earnings on the funds deposited are a mere incident of ownership of the fund itself. The “taking clause” provision applies to the earnings in the same manner, and with the same force, as it applies to the principal. It is contended that under section 6.1 of “An Act concerning County Treasurers in counties containing more than 150,000 inhabitants* * *” (Ill. Rev. State. 1973, ch. 36, par. 22.1) these earnings must be paid into the county treasury, for the benefit of the county corporate fund, to be used for county purposes.

A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity. As this court stated in Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385:

“We will presume that the legislature intended to enact a valid law. It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can reasonably be done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. [Citation.] Similarly, ‘It is our duty to so interpret a statute as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity,’ ” Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389-90.

We have set out above the two sections of the statute which it is contended require the earnings on the award money, deposited with the county treasurer, to be paid into the county corporate fund. The statutory language which it is argued compels this conclusion is found in the definition of “county moneys” found in section 1 (Ill. Rev. Stat. 1973, ch. 36, par. 17), which it is stated “shall include all moneys to whomsoever belonging.” (Emphasis added.) Monies belonging to numerous governmental bodies at various times come into the possession or control of the county treasurer. In fact, most of the money coming into the possession or control of the county treasurer is money belonging to various governmental bodies. Since these monies do not constitute private property, the constitutional proscription against taking private property for public purposes would not prevent the earnings from these funds from being used for county purposes. To preserve the validity of section 6.1 (Ill. Rev. Stat. 1973, ch. 36, par. 22.1) we must construe “to whomsoever belonging,” as contained in the definition of county monies in section 1, as referring to money other than that which constitutes private property. To interpret the statute as the treasurer contends would constitute a taking of private property for public use.

It is contended that there is no statutory provision authorizing the payment of interest on eminent domain awards that have been deposited with the county treasurer. Relying on several decisions of this court, which have held that, absent statutory authority, interest is not payable upon refunds made by the county, the county treasurer of Cook County argues that no interest can be paid to the condemnees in this case. First, it must be noted that interest is not being sought in this case. The condemnees are not asking that the statutory rate of interest or any fixed rate of interest be paid by the county on the amount of the deposit. They are asking to be paid only the amount which the county earned on the money that had been deposited with the county treasurer pursuant to the order of the court. We note that no order was entered directing the county treasurer to invest the money deposited with him in interest-earning accounts.The full amount of this deposit had not been invested in interest-earning accounts for the full period of time the money was on deposit. The condemnees are seeking to recover only the amount earned by the county through the use of this deposit which belongs to them.

People v. Meyerowitz (1975), 61 Ill. 2d 200, Claren don Associates v. Korzen (1973), 56 Ill. 2d 101, and Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, relied on by the county treasurer, are distinguishable. These are cases in which the county had a legitimate claim to money that had been paid by the claimants, who were not entitled to a refund of the same until an adjudication of their claims had been made and a refund order entered. This court, in those cases, held that interest was properly denied because there was no statutory provision for the payment of interest. In our case the money that was deposited with the county treasurer belonged to the condemnees and at no time did the county have a legitimate claim to it or any interest in it.

We hold that defendants are entitled to be reimbursed for the full amount of money which has been earned on the sum deposited with the county treasurer pursuant to the order of the circuit court of Cook County. The judgment of the appellate court, and the judgment of the circuit court of Cook County denying the payment of income earned on the funds in question, are reversed, and the cause is remanded to the circuit court of Cook County for further proceedings. Except as to the defendants herein, the holding of this case shall be applied prospectively to deposits made with county treasurers pursuant to orders entered on and after February 1, 1980.

Reversed and remanded.


author: MR. JUSTICE MORAN

text:
    (No. 52496.
    RAY MARSHALL, United States Secretary of Labor, et al., Petitioners, v. PAUL F. ELWARD, Judge, et al., Respondents.

      Opinion filed January 23, 1980.

      Garin Ann Clauss, Solicitor of Labor, Ronald Whiting, Associate Solicitor of Labor, Sofia Fetters, Richard Galgay, Linda Lewis, and Miriam Miller, all of Washington, D.C., and Herman Grant, Regional Solicitor, Richard J. Fiore, Regional OSHA Counsel, Nancy Boyland Collins, Mark A. Holbert, and Lisa R. Williams, all of Chicago, for petitioners.
    Richard I. Bass, of Chicago (Sidney Z. Karasik and Michael Kreloff, of counsel), for respondents.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An original action for mandamus and prohibition is brought by Ray Marshall, Secretary of the United States Department of Labor (petitioner), against Judge Paul F. Elward of the circuit court of Cook County (respondent). A subpoena duces tecum was issued by Thomas Baumhardt (plaintiff in a civil action before respondent) upon the local director of the Occupational Safety and Health Administration (OSHA), requesting the production of certain documents held by OSHA. OSHA’s motion to quash the subpoena was denied, whereupon respondent held an in camera inspection of the documents in question. On September 13, 1979, respondent ordered petitioner to release certain of those documents to Baumhardt. Petitioner here seeks to compel expungement of the September 13 order.

Petitioner argues that, based upon the sovereign immunity of the United States government and upon the supremacy clause of the United States Constitution, the circuit court of this State lacks jurisdiction to compel the United States Department of Labor to produce Federal records here sought. Petitioner also argues that its records are not subject to production because such records are privileged.

An explosion occurred on January 16, 1979, at an excavation work site of the Metropolitan Sanitary District of Greater Chicago known as the “Deep Tunnel Project.” Baumhardt was one of the workmen injured in the explosion. Immediately after the mishap, the area was sealed off, and OSHA conducted an investigation of the circumstances of the explosion to determine if there had been violations of the Occupational Safety and Health Act of 1970 (Act). An OSHA investigatory file was compiled which contained, among other things, employee interview statements, notations of OSHA investigators, photographs and diagrams and similar documentation of the observations of OSHA investigators, and a written summary of investigative findings. As a result of its investigation, OSHA issued a citation which charged the construction contractors, Kenny Construction Company, Paschen Contractors, Inc., and S. & M. Joint Venture (Kenny-Paschen), with violations of the Act. Since the citation was contested, an OSHA enforcement proceeding was scheduled and is currently pending.

Baumhardt filed suit under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) and served a subpoena duces tecum upon Morely Brickman, acting area director for OSHA, for the production of various documents in the “Deep Tunnel” investigatory file. Petitioners filed a motion to quash the subpoena, arguing that the premature disclosure of such documents would hamper the pending OSHA enforcement proceeding and that the documents were privileged. On August 21, 1979, respondent ordered Brickman to produce the records for an in camera inspection. On September 13, 1979, after the in camera inspection, the respondent ordered the immediate disclosure of those portions of the file not deemed privileged. We granted petitioner’s motion for leave to file a petition for original mandamus and prohibition and further ordered that the respondent’s order be stayed until further order of this court.

The assertion that the circuit court is without jurisdiction will be addressed in its relationship to (a) the sovereign immunity of the United States government and (b) the supremacy clause of the United States Constitution.

As to the first of these, it is clear that no suit may be brought against the United States, as sovereign, unless Congress, by Federal statute, has consented to such suit. When the United States has relinquished its sovereign immunity and consents to be sued, suit may be brought, limited by the terms of the consent set forth in the legislation and only in the courts designated. United States v. Shaw (1940), 309 U.S. 495, 500-01, 84 L. Ed. 888, 891-92, 60 S. Ct. 659, 661; United States v. Sherwood (1941), 312 U.S. 584, 590, 85 L. Ed. 1058, 1063, 61 S. Ct. 767, 771; Minnesota v. United States (1938), 305 U.S. 382, 387, 83 L. Ed. 235, 240, 59 S. Ct. 292, 294.

It must be noted, however, that the sovereign immunity doctrine states that no suit may be brought against the United States as sovereign. Petitioner argues that the subpoena duces tecum is a “suit” because it involves property in which the government has an interest, namely the OSHA investigative file. (Minnesota v. United States (1938), 305 U.S. 382, 386, 83 L. Ed. 235, 240, 59 S. Ct. 292, 294.) In cases dealing with sovereign immunity, however, the term “suit” has been used to include only proceedings in which the United States is a named party or in proceedings in which the essential purpose is to attach liability against the United States. See Minnesota v. United States (1938), 305 U.S. 382, 83 L. Ed. 235, 59 S. Ct. 292 (condemnation proceeding against Indian land, title of which is held by the United States as trustee, is a “suit”); United States v. Shaw (1940), 309 U.S. 495, 84 L. Ed. 888, 60 S. Ct. 659 (claim by decedent’s estate against the United States, in probate court, for money damages on a contract settlement agreement is a “suit”); FHA v. Burr (1939), 309 U.S. 242, 84 L. Ed. 724, 60 S. Ct. 488 (garnishment proceeding against the Federal Housing Administration by a creditor is a “suit”); Weston v. City Council (1829), 27 U.S. (2 Pet.) 449, 7 L. Ed. 481 (imposition of a city tax on stock of the United States is prevented by the sovereign immunity of the United States).

In the present case, the U.S. Department of Labor, or its agent, OSHA, is not a party to the civil suit brought by Baumhardt; neither is it subject to the imposition of liability. No claim against money or property of the United States is sought. The United States is not threatened with the loss of property nor are its rights in property jeopardized by this action. Petitioner is merely ordered to divulge information in its possession and only to the extent permissible under existing privileges. Under the circumstances here, we do not find that a subpoena duces tecum constitutes a “suit.” On the basis of such finding, and because only suits against the United States are generally prohibited under the doctrine of sovereign immunity, we conclude that that doctrine does not prevent the circuit court from asserting its jurisdiction to enforce the subpoena duces tecum.

It is petitioner’s contention that the supremacy clause of the United States Constitution, article VI, clause 2, preempts Illinois discovery under section 62 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 62) and Illinois Supreme Court Rule 214 (65 Ill. 2d R. 214). It claims that such preemption resulted from the congressional enactment of the Freedom of Information Act (FOIA) (5 U.S.C. sec. 552 (1976 & Supp. I 1977)), the housekeeping statute (5 U.S.C. sec. 301 (1976)), and the Occupational Safety and Health Act of 1970 (29 U.S.C. sec. 651 et seq. (1976)). Petitioner concludes that these acts prevent courts of Illinois from acquiring jurisdiction to compel disclosure of Federal records. This conclusion is based on the premise that these Federal enactments were intended to create exclusive methods of access, thereby rendering void all State statutes which attempt to force such disclosure of Federal records and information.

Petitioner’s reliance on the housekeeping act is misplaced. In 1958, that act was amended to specifically deny the Federal government the right to withhold information from the public under such statute. Cooney v. Sun Shipbuilding & Drydock Co. (E.D. Pa. 1968), 288 F. Supp. 708, 713.

The claim that the FOIA provides an exclusive method of access to Federal information is without merit. That enactment does not expressly so provide, and petitioner cites no authority to that effect. To the contrary, the FOIA was intended to provide an additional method by which to seek information held by the Federal government.

Petitioner’s contention is, in fact, directly refuted by the express language of OSHA’s regulations.

“1906.3 Subpenas.
(a) Whenever an employee of the Administration is served with a subpena or is requested to testify, he shall immediately report the service or request to the *** Solicitor *** [to] determine whether and to what extent the employee is required to comply ***.
1906.7 Disclosure of records.
***
(b) If an employee of the Administration receives a subpena or request to produce records in court or before any other body, he shall refer it to the nearest office of the Solicitor. If the subpena or request specifies records available ***, counsel shall advise that the subpena or request be honored.” (Occupational Safety and Health Administration — Administration Witnesses and Documents in Private Litigation, 29 C.F.R. secs. 1906.3(a), 1906.7(b) (1978).)

Because of OSHA’s regulations, we conclude that Illinois discovery procedures were anticipated and that they may properly be used to obtain Federal records and information possessed by such agency.

For the reasons stated, the circuit court of Cook County had jurisdiction to enforce the subpoena duces tecum issued pursuant to Illinois discovery provisions.

The petitioner next contends that the records sought are protected from disclosure under the investigatory file privilege and informer’s privilege recognized at common law. Petitioner argues that the premature disclosure of the records in issue would jeopardize the pending law-enforcement proceeding against Kenny-Paschen. Petitioner claims that employee informers could be subject to employer retaliation for their cooperation with the government if their names and statements were to be disclosed.

Petitioner concedes that the common law privileges asserted are codified in FOIA (5 U.S.C. secs. 552(b)(7)(A), (b)(7)(D) (1976).) (See Cooney v. Sun Shipbuilding & Drydock Co. (E.D. Pa. 1968), 288 F. Supp. 708, 712; Pilar v. S.S. Hess Petrol (D. Md. 1972), 55 F.R.D. 159, 162.)

“(b) This section does not apply to matters that are—
* * *
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would
(A) interfere with enforcement proceedings, ***
* * *
(D) disclose the identity of a confidential source *** if

5 U.S.C. secs. 552(b)(7)(A), (D) (1976).

These privileges, however, are qualified privileges based upon the competing interests of the parties and cannot be used as an absolute bar to government disclosure. (NLRB v. Robbins Tire & Rubber Co. (1978), 437 U.S. 214, 236, 57 L. Ed. 2d 159, 174, 98 S. Ct. 2311, 2323-24; Kerr v. United States District Court (9th Cir. 1975), 511 F.2d 192, 198, aff’d (1976), 426 U.S. 394, 48 L. Ed. 2d 725, 96 S. Ct. 2119.) The bare assertion of a privilege by a government agency is insufficient to deny a party access to government records; rather, disputes as to privileged documents are to be resolved by the court. (Bristol-Myers Co. v. FTC (D.C. Cir. 1970), 424 F.2d 935, 938; EEOC v. Los Alamos Constructors, Inc. (D.N.M. 1974), 382 F. Supp. 1373, 1375.) The in camera inspection is the proper procedure for the resolution of disputes as to which documents are privileged. Kerr v. United States District Court (1976), 426 U.S. 394, 406, 48 L. Ed. 2d 725, 734, 96 S. Ct. 2119, 2125; United States v. Nixon (1974), 418 U.S. 683, 698, 699-700, 41 L. Ed. 2d 1039, 1058, 1059, 94 S. Ct. 3090, 3102-03, 3103; Ghandi v. Police Department (E.D. Mich. 1977), 74 F.R.D. 115, 125; Ollestad v. Kelley (9th Cir. 1978), 573 F.2d 1109, 1110.

We agree with petitioner that the records sought are subject to an investigatory file privilege and an informer’s privilege. The United States Supreme Court in NLRB v. Robbins Tire & Rubber Co. (1978), 437 U.S. 214, 57 L. Ed. 2d 159, 98 S. Ct. 2311, found that the National Labor Relations Board was not required to disclose statements of witnesses when there was an unfair-labor-practice proceeding pending, since such disclosure would interfere with enforcement proceedings. (NLRB v. Robbins Tire & Rubber Co. (1978), 437 U.S. 214, 236, 57 L. Ed. 2d 159, 175, 98 S. Ct. 2311, 2324.) This privilege also extends to any conclusions which were based upon such privileged information. (Machin v. Zuckert (D.C. Cir. 1963), 316 F.2d 336, 339.) However, those portions of the investigatory file which consist of factual reports resulting from agency observation and investigation which will not interfere with enforcement proceedings may be ordered disclosed. (Cooney v. Sun Shipbuilding & Drydock Co. (E.D. Pa. 1968), 288 F. Supp. 708, 716.) Accordingly, in the present case, statements of witnesses and conclusions of the .Department based upon those statements may be withheld as privileged, as may any other document or portion thereof adjudged to be privileged.

The writs of mandamus and prohibition are extraordinary remedies and, under normal circumstances, are not the proper vehicles for the regulation of discovery. (See People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 191-92.) We, therefore, deny petitioner’s request for a writ of mandamus and writ of prohibition.

We feel, however, that it is fitting, in this instance, to exercise our supervisory power. On this court’s motion, the respondent is directed to reexamine the OSHA file, to determine which items or portions thereof are not protected by privilege, and to enter an appropriate order upon petitioner to produce for Baumhardt’s use those documents which are not privileged.

Writs denied; supervisory order entered.


author: MR. JUSTICE WARD MR. JUSTICE KLUCZYNSKI,

text:
    (No. 51735.
    DORA TOWNSHIP et al., Appellees, v. INDIANA INSURANCE COMPANY et al. (Indiana Insurance Company, Appellant).

      Opinion filed February 1, 1980.

      KLUCZYNSKI, UNDERWOOD and RYAN, JJ„ dissenting.
    John P. Ewart and Gregory C. Ray, of Craig & Craig, of Mattoon, for appellant.
    Steven K. Wood, of Wood & Flannell, of Sullivan, for appellees.
   MR. JUSTICE WARD

delivered the opinion of the court:

On October 10, 1974, while proceeding in a westerly direction on County Road North in Dora Township, Ruby Oye drove through a stop sign and was struck by an automobile proceeding northbound on County Road East. Mrs. Oye suffered fatal injuries, and a wrongful death action was filed by her husband, W. B. Oye, against Dora Township. The complaint alleged that her death was proximately caused by the township’s failure to properly maintain the stop sign, which allegedly was in disrepair at the time and was not clearly visible to westbound travelers on County Road North.

Dora Township presented a claim for coverage to the Indiana Insurance Company (Indiana), pursuant to the terms of its comprehensive liability policy. Indiana rejected the claim on the ground that the occurrence fell within an exclusionary endorsement in the policy of insurance. That clause provided:

“In consideration of the premium for which this policy is issued, it is agreed the policy does not apply to any loss or claim arising out of the existence of any highways, roads, streets, sidewalks, culverts or bridges, owned, maintained, repaired or controlled by the named insured.”

Dora Township then filed a declaratory judgment action in the circuit court of Moultrie County claiming coverage. The court allowed Indiana’s motion for judgment, but the appellate court reversed (67 Ill. App. 3d 31). We granted Indiana’s petition for leave to appeal.

The question is, of course, whether the claim that Dora Township failed to properly maintain the traffic control sign was excluded under the comprehensive liability policy issued by Indiana.

Though there is no specific mention of traffic control signs or devices in the exclusionary clause, Indiana argues that by referring to the “existence” of highways and streets it is clear that the exclusion was intended to apply to any liability arising from the improper maintenance of a traffic control sign. Dora Township contends that the provision is ambiguous and that under holdings governing the construction of insurance policies this ambiguity is to be interpreted in favor of the insured and coverage.

An insurance policy in which no ambiguity appears is to be read as any other contract, that is, according to the plain and ordinary meaning of its terms. (Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165; Cobbins v. General Accident Fire & Life Assurance Corp., Ltd. (1972), 53 Ill. 2d 285; Pioneer Life Insurance Co. v. Alliance Life Insurance Co. (1940), 374 Ill. 576.) In order to ascertain the intent of the parties the court should not examine the policy in a vacuum but should look to the circumstances surrounding the issuance of the policy, such as the situation of the parties and the purpose for which the policy was obtained. Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330; Great Central Insurance Co. v. Bennett (1976), 40 Ill. App. 3d 165.

The exclusion here was a part of a comprehensive general liability policy, one of four insurance contracts between Dora Township and Indiana. The other three provided uninsured motorist coverage and insurance for automobile property and personal injury liability. In view of the broad and general purposes of a comprehensive liability policy and the fact that the State of Illinois imposes a duty upon municipalities to properly maintain and repair traffic control devices, which term includes traffic signs (Ill. Rev. Stat. 1977, ch. 951/2, pars. 11 — 304, 11 — 305), it seems obvious that Dora Township would seek and that it and Indiana would arrange for coverage against liability for any negligent conduct in maintaining these traffic devices.

Indiana argues that there would not be traffic signs but for the existence of highways and roads and therefore any liability arising out of the improper care of these devices is excluded under the contract of insurance. Considering, however, the broad coverage proposed under a comprehensive liability policy and the statutory obligation of the township to maintain traffic devices, the overly simple “but for” contention cannot apply. We do not consider this was the intendment of the parties given the language of the provision and the surrounding circumstances. To accept the “but for” contention here arguably should extend acceptance of it to all other municipal operations, such as street lights, underground sewage systems and water mains which are attributable to the existence of highways or roads. The position argued for by Indiana would not only appear to defeat the purposes for which Dora Township obtained the comprehensive liability coverage but also would work to resolve the ambiguity in the policy in favor of the insurer. Dora Township correctly contends that where language in an insurance policy is subject to different interpretations such ambiguity is to be construed in favor of the insured, and not the insurance company, which drafted the contract of insurance. Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167; Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165; Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285; Barnes v. Powell (1971), 49 Ill. 2d 449; Manchester Insurance & Indemnity Co. v. Universal Underwriters Insurance Co. (1972), 5 Ill. App. 3d 847. See also 13 Appleman, Insurance sec. 7486, at 624 (1976).

The parties have referred us to these three cases in which questions with some similarity to the one before us appeared: Sherwood v. Stein (1972), 261 La. 358, 259 So. 2d 876; Andrus v. Police Jury of Parish of LaFayette (La. App. 1972), 270 So. 2d 280; Foreman v. Maryland Casualty Co. (La. App. 1969), 224 So. 2d 553.

We consider that Sherwood most closely resembles our case. There the plaintiff, whose husband was killed in an automobile collision, alleged that his death was caused by the grossly negligent manner in which Jefferson Parish maintained its traffic control system. The insurance company argued its coverage of Jefferson Parish was excluded under an endorsement which provided:

“ ‘Such insurance as is afforded under Division I of the Definition of Hazard does not apply to the existence of streets and sidewalks of the named insured, and the definition of premises does not include such streets and sidewalks.’ (Italics ours.)” 261 La. 358, 363-64, 259 So. 2d 876, 878.

The Supreme Court of Louisiana declared that there was not “any clear intent to exclude from coverage the negligent installation or maintenance of a traffic control system at an intersection.” 261 La. 358, 364, 259 So. 2d 876, 879.

It can be said that it is not clear whether the language of the exclusionary endorsement was to extend to an occurrence as is involved here, and the ambiguity will be construed in favor of the insured, Dora Township.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI,

dissenting:

I disagree with the conclusion reached by the majority that the exclusionary clause here involved is ambiguous, and I respectfully dissent.

The exclusionary clause here in question provides that coverage does not extend “to any loss or claim arising out of the existence of” the insured’s highways and roads. The majority concludes that an action alleging the negligent maintenance of traffic control signals does not arise out of the existence of highways and roads within the meaning of the exclusionary clause. In my opinion, the plain meaning of the exclusionary clause dictates a contrary result. There is no need to engage in a construction of the clause, since its language is clear. The exclusionary clause should therefore be applied as written, the appellate court judgment should be reversed, and the circuit court’s judgment dismissing the insured’s declaratory judgment action should be affirmed.

UNDERWOOD and RYAN, JJ., join in this dissent.


author: MR. JUSTICE CLARK

text:
    (No. 50709.
    THE PEOPLE ex rel. FRANK RESNIK, Director of General Services, Appellee, v. CURTIS & DAVIS, ARCHITECTS & PLANNERS, INC., et al. (Curtis & Davis, Inc., Appellant).

      Opinion filed February 1, 1980.

      McConnell, Kennedy, Quinn & Johnston, of Peoria (Richard E. Quinn and Gery R. Gasick, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (George H. Klumpner, Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The State of Illinois in early 1973 brought an action for breach of contract against several architects and contractors, including Curtis & Davis, Incorporated (hereafter C & D, Inc.), the only appellant here. The contract was entered into in the spring of 1966 between the Illinois Building Authority (hereafter IBA) and joint venturers, Curtis & Davis Partnership (hereafter C & D Partnership) and Samuel E. Sanner 8c Associates, for services related to the construction of the Vienna Correctional Center. The circuit court of Sangamon County dismissed the amended complaint, holding that the State was not a proper party plaintiff since it was not a signatory to the contract, and that C & D, Inc., was not a proper party defendant since it too was not a signatory to the contract. The appellate court reversed (58 Ill. App. 3d 28), holding that not only was the State properly complaining on behalf of a “State agency, ” IBA, but it was also a third-party beneficiary. The appellate court did not specifically determine whether C 8c D, Inc., or C 8c D Partnership or both were proper party defendants, but it said a plaintiff may sue two or more defendants alternatively. We allowed leave to appeal (65 Ill. 2d R. 315).

Two issues exist: whether the State is a proper party plaintiff and whether C & D, Inc., is a proper party defendant. Only counts I and III of the amended complaint are involved in the appeal.

C 8c D, Inc., contends that the appellate court’s interpretation of the Capital Development Board Act (Ill. Rev. Stat. 1973 and 1977, ch. 127, par. 771 et seq.) — that the term “State agency” includes the IBA — impairs contractual obligations in violation of the 1970 Illinois Constitution (art. I, sec. 16). C & D, Inc., argues the State is not a proper party plaintiff because prior to 1973, when the act above went into effect, the IBA was not a State agency (Berger v. Howlett (1962), 25 Ill. 2d 128, 133; accord, Electrical Contractors Association of City of Chicago, Inc. v. Illinois Building Authority (1966), 33 Ill. 2d 587, 593) but a separate body politic, capable of making contracts and being sued, independently of the State. C & D, Inc., continues: retroactive application of the 1973 act above — so as to permit the State, not a party to the 1966 contract between IBA and C 8c D Partnership, to now represent IBA and sue for breach of contract— violates the constitutional prohibition against impairment of contracts. Whatever the merits of this contention, we need not reach this constitutional issue because of our resolution of the nonconstitutional question of whether or not the State is a third-party beneficiary of the contract between IBA and C & D Partnership. Given the facts here, especially the unequivocally clear provisions in the contract, we find the State is a third-party beneficiary of the contract, properly bringing suit in that capacity rather than in the asserted capacity of representative of or successor in interest to a State agency.

C & D, Inc., initially argues that the State failed to preserve this question because the State did not raise it in the appellate court. We acknowledge this point. However, counts I and III of the amended complaint are based on the theory of third-party beneficiary, and the rule of waiver, as the appellate court noted, is a limitation on the parties and not on this court, and C & D, Inc., has had an opportunity before us to refute this theory. The issue should be addressed.

The classic statement of the rule in Illinois was made by this court in Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257-58:

“The rule is settled in this State that if a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct he may sue on the contract; if incidental he has no right of recovery thereon. This rule has been announced without variation in numerous cases decided by this court. [Citations. Accord, Cherry v. Aetna Casualty & Surety Co. (1939), 372 Ill. 534, 542; Rozny v. Marnul (1969), 43 Ill. 2d 54, 60.]
It is not seriously argued that such is not the rule in Elinois, but the argument turns rather on the application of the rule to the construction of the contract. In such a case no opinion in an adjudicated case, even of this court, is controlling unless the language of the contract or the circumstances surrounding the parties are substantially the same, since each case must depend upon the intention of the parties as that intention is to be gleaned from a consideration of all of the contract and the circumstances surrounding the parties at the time of its execution. [Citations.] The rule is, that the right of a third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must affirmatively appear from the language of the instrument when properly interpreted and construed. The liability so appearing can not be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability. ”

(Accord, 2 Williston, Contracts secs. 356, 356A (Jaeger 3d ed. 1959); J. Calamari & J. Perillo, Contracts 381-83 (1970). See Restatement (Second) of Contracts sec. 133 (1973).) In short, the intention of the parties, as evidenced by the contract, determines whether or not a third-party beneficiary may sue. It is not enough that the beneficiary is an incidental beneficiary: only a direct beneficiary has a right against the promisor (C & D Partnership) or promisee (IBA). Restatement (Second) of Contracts sec. 147 (1973).

The disputed contract here, specifically and in its entirety (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 259), convincingly displays the intent of the parties to make the State a direct beneficiary. The preamble provides:

“WHEREAS Owner, for the use of the Department of Public Safety, State of Illinois, hereinafter called ‘User’, intends to construct buildings and facilities for completion of the Illinois State Penitentiary, located at Vienna. ***”

Section 1(A)(1) provides that “Associate” (C & D Partnership) must consult with the “User” as well as “Owner” (IBA) “to ascertain the requirements of Project.” In section 1(A)(3), the “Associate” must “revise the drawings, specifications and estimate in manner satisfactory to Owner and User.” Section IV(B) states that “Associate warrants and represents that it is free to enter into and fully perform this agreement, and that it has the right to grant the rights herein granted to Owner and User.” In section IV(D)(1), “Associate hereby indemnifies and holds harmless Owner, User ***.” Finally, in addition to the signatures of the representatives of IBA and the joint venturers (Samuel E. Sanner 8c Associates and “Curtis & Davis”), a representative of “User/Supv. A 8c E” (supervising architect) has affixed his signature. (These are only some of the examples of the contract’s reference to User, i.e., the State.)

The contract demonstrates that the parties — certainly the promisee, IBA (2 Williston, Contracts sec. 356A, at 836 (Jaeger 3d ed. 1959)) — intended the State or “User” to be more than an incidental beneficiary or a mere tenant (see Restatement of Contracts sec. 147, illustration 1 (1932).) Moreover, the surrounding circumstances (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258; J. Calamari & J. Perillo, Contracts 383 (1970)) show this intention. Construction of the prison would directly benefit the State, the “User” — not the parties; the State possessed the expertise, not IBA, necessary for the construction characteristics of a prison. The IBA and the State agreed to a construction lease for the Vienna facility in 1965. And the relationship between the State and IBA was an ongoing one which was dictated, in 1966, by the limitation placed on the State’s budget deficit by the 1870 Constitution. IBA was the mechanism formed by the General Assembly to circumvent this limitation. Yet, we repeat that it is the contract which is controlling and is persuasive here; and on that basis we limit our holding: the State is a proper party plaintiff because it is a direct beneficiary clearly identified and intended in the contract before us.

The second issue can be readily decided. The State’s amended complaint, alternatively and respectively in counts I and III, alleged that C 8c D, Inc., or C 8c D Partnership breached the contract with IBA. C 8c D, Inc., contends that the appellate court failed to rule on the circuit court’s dismissal of C 8c D, Inc., as a proper party defendant. However, if “the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, and state his claim against them in the alternative ***” (Ill. Rev. Stat. 1973, ch. 110, par. 24(3)). Any discussion of the propriety of making C 8c D, Inc., a party is premature in the absence of proof.

For these reasons, we affirm the appellate court, but only as delimited above, and remand the cause to the circuit court for further proceedings consistent with this opinion.

Affirmed and remanded.