text:
    The City of Canton, Plaintiff-Appellant, v. The County of Fulton, Defendant-Appellee.
    (No. 72-194;
    Third District
    May 9, 1973.

      William Malmgren, of Canton, for appellant.
    Robert A. Downs, State’s Attorney, of Lewistown, for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Fulton County decreeing that the zoning ordinance of the County of Fulton takes precedence over and supersedes the zoning ordinance and regulations of the City of Canton as to land laying outside the city limits but within IV2 miles of the boundaries of the City of Canton. The action was instituted by the City of Canton for declaratory judgment.

From the record, it appears that on June 17, 1969, pursuant to statutory authority, the plaintiff City of Canton, adopted an ordinance providing for zoning of the area outside the city limits but within IV2 miles from the boundaries of the municipality and contiguous thereto. On July 14, 1969, the plaintiff adopted its official comprehensive plan encompassing the area IV2 miles contiguous with its territorial boundaries but not within the city limits. In March 1970, acting pursuant to statutory authority, defendant County of Fulton adopted a comprehensive use plan for its territory. On December 15, 1970, the County of Fulton made effective its ordinance providing for zoning of its territory, including the area IV2 miles contiguous to the territorial boundaries of the plaintiff, City of Canton. In the proceedings leading up to and culminating in the enactment of the county zoning ordinance, plaintiff City did not appear and submit in writing its proposals to defendant County for zoning of the territory contiguous to but within IV2 miles of plaintiff’s boundaries. A legally sufficient notice of these proceedings was given as provided by statute. The enactment of the county zoning ordinance was approved but by a vote of less than % of all of the members of its Roard.

Following the adoption of the zoning ordinance by Fulton County, both the City of Canton and the County of Fulton have claimed ex-elusive zoning jurisdiction of the territory lying- outside the territorial boundaries of the plaintiff City of Canton but contiguous thereto and extending V/z miles therefrom. The City of Canton then initiated the instant case praying that the court enter its judgment declaring whether or not the City of Canton or the defendant, County of Fulton, has sole and exclusive power to control and enforce zoning within the lYz mile area herein referred to. The Circuit Court of Fulton County found that the zoning ordinance and regulations of the- defendant, County of Fulton, were valid and effective as to the said land area and that such county ordinance takes precedence over and supersedes the zoning ordinance and regulations of the City of Canton, as to land within such V/z mile area contiguous to the boundaries of the City of Canton but outside of the municipal limits of said city.

Plaintiff City of Canton seeks reversal of such decree and contends that, because the City of Canton first adopted its zoning ordinance and comprehensive plan with respect to the V/z mile area outside its boundary, the adoption, 9 months later, by the County of Fulton of its ordinance and comprehensive plan was ineffective, and that the City had jurisdiction of such area and the power to regulate the zoning thereof to the exclusion of the County. This contention is predicated principally upon the Cities and Villages Act provisions (Ill. Rev. Stat. 1971, ch. 24, sec. 11—13—1 and sec. 11—12—5) which preliminarily give the power to the municipality to zone not only within the corporate limits but also within contiguous territory not more than V/z miles beyond. This power is expressly restricted as set forth in the Act. As indicated in the statement of facts, the plaintiff City of Canton adopted its comprehensive use plan pursuant to Section 11 — 12—5 and Section 11 — 12—6 to apply in the V/z mile area under consideration.

It is noted that in ch. 34, sec. 3151 of Illinois Revised Statutes it is provided:

“Nothing in this act shall be construed to restrict the powers granted by statute to cities * 8 * as to territory contiguous, to but outside of the limits of such cities 8 8 8.”

It is also provided in said Statutes, ch. 24, sec. 11 — 13—1:

“No municipality shall exercise any power set forth in this article outside the corporate limits thereof, if the county in which said municipality is situated has adopted [a county zoning ordinance].”

In sec. 3152 of Ch. 34, which provides the manner in which the County is to implement its power to zone, there is a provision for notice to the municipality having a zoning ordinance, and specifying that if the municipality wishes to protest it shall appear and submit in writing specific proposals as to land within the V/z mile area. If the municipality’s proposáis are not incorporated in the county zoning ordinance proposed to be enacted by the county board, it is provided that the county board shall not enact the proposed zoning ordinance within such VA mile area except by % vote of all of its members.

Plaintiff City of Canton did not appear and submit its proposals in writing nor was the county zoning ordinance subsequently passed by % vote of all the members of the county board as we have indicated. Under sec. 3152 referred to, the county has authority to zone within the VA mile area of any city or village which has previously adopted a zoning ordinance only when it' gives such notice of the hearing of its intent to zone within the 1% mile area and also grants to the municipality the right to appear at the hearing and protest and submit in writing specific proposals which, if not incorporated in the ordinance, would require that the county zoning ordinance be adopted by at least % vote of the county board. It is apparent, therefore, that the municipality is permitted to influence zoning within the VA mile area by appearing at hearings and making proposals and by protesting certain zoning changes within the VA mile area so as to require a % vote of the county board before such proposals are adopted. It is apparent, also, on the basis of the language of the state Acts as well as the precedents to which we will refer in the course of this opinion, that the right of the municipality to zone within the VA mile area is subject to being divested. It is clear from the record in the present case that the City of Canton did not appear or make suggestions in writing and did not offer any proposals as to zoning within the V/2 mile area contiguous to the plaintiff’s boundaries, and that the ordinance was adopted by the county board although by less than % vote. From such action it is contended by the county, it could be rightfully assumed that plaintiff City of Canton did not intend to exercise any jurisdiction within the VA mile area and certainly there was no requirement of the % vote by reason of such failure to appear in accordance with the provisions of sec. 3152.

The right of the county to control zoning within the VA mile area bordering the city limits and outside the municipal limits has been clearly recognized in Village of Arlington Heights v. County of Cook (1971), 133 Ill.App.2d 673, 273 N.E.2d 706. In the Arlington Heights case the court decreed specifically that the plaintiff-municipality had no proper authority to attack rezoning by the county, where the property was located in an unincorporated area within VA miles from the village limits. The court in that case cited Village of Bensenville v. County of DuPage, 30 Ill.App.2d 324, 174 N.E.2d 403 (an abstract opinion), where the court decreed that a municipal corporation could not attack or challenge county zoning of unincorporated territory contiguous to the village. The court also cited Village of Mount Prospect v. County of Cook, 113 Ill.App.2d 336, 252 N.E.2d 106, in which the court specifically said that following adoption of a comprehensive plan by Mount Prospect (a municipality), the county zoning in the area would await annexation of the contiguous property by the village, as suggested in La Salle National Bank v. Palatine, 92 Ill.App.2d 327, 236 N.E.2d 1. It was further pointed out, however, that Mount Prospect might not succeed in annexing the contiguous property, and it would then be unable to apply its proposed zoning recommendation. County zoning was, therefore, made applicable in the area in absence of annexation by Mount Prospect. The property owner in that case had applied for and received reclassification under the county zoning ordinance, and the court there said that the viUage, even though it had prepared a comprehensive land use plan for the area, did not have authority to have the rezoning by the county declared void.

While some of the cases referred to constitutional limitations relating to the right of the municipality to take action under the Constitution of 1870, the basic consideration in the case was an analysis of the zoning ordinances and the nature of the authority and power granted in the state Acts relating to counties and municipalities. It is clear from such analysis and from a reading of the acts, that municipalities were given the right to control proposed zoning problems within the lVz mile radius prior to the adoption of county zoning ordinances, and that after the adoption of the county zoning ordinances, the county zoning authority was paramount within such area, subject, however, to the right of the municipality by appropriate protest to require that any such change or adoption of zoning authority was required to be legislatively enacted by not less than % of the members of the county board. It was thus obviously the legislative plan to vest in the county the right to control zoning within the lVz mile radius of the city boundaries, subject only to the specific limitation granting the municipality power by adequate protest to require the % vote referred to. This pattern of vesting power in the county to control zoning in the lVz mile area surrounding the municipality is carried out in the provisions of ch. 34, sec. 3158 (Ill. Rev. Stat. 1971, ch. 34, sec. 3158), where it is specifically provided that the municipality can protest any rezoning attempt and thereby require that any such rezoning be passed only by a % vote of the county board.

For the reasons set forth herein, it is clear that the Circuit Court of Fulton County properly determined that the power to zone was vested in the County of Fulton within the 1 Vz mile area subject only to the right of the municipality to protest promptly to require a % vote as a condition of enactment of a change in or adoption of a zoning ordinance. In the situation before us, where the City of Canton contains a population of approximately % of the entire County of Fulton, it is obvious that the representatives from the City of Canton alone, by appropriate negative vote, realistically, could prevent any undesired zoning within the 1% mile radius of the city if protests were made by the municipality. The legislative plan obviously is one which gives recognition to the practical need for control of zoning by the county in areas outside municipal limits subject only to reasonable requirements relating to zoning modifications as indicated in the course of this opinion.

For the reasons stated, the order of the Circuit Court of Fulton County is affirmed.

Affirmed.

STOUDER and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
    Charles Q. Burroughs, as Conservator of Lena Burroughs, Plaintiff-Appellee, v. Matt Burroughs et al., Defendants-Appellants.
    (No. 72-288;
    Third District
    May 9, 1973.

      Bruce Becker, of Peoria, for appellants.
    Ralph Froehling, of Canton, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

In May of 1968, Lena Burroughs was a widow, hard of hearing and 85 years of age. A year earlier she had permitted her 240 acre farm to be included in a mortgage to assist her only son, Charles. A payment of $5,235 came due in April of 1968 but Charles was short about $3000. The total debt then was $45,375.67.

Matt Burroughs was Lena’s nephew by way of her deceased husband. Lena and Charles approached Matt to borrow the $5235. After Matt became aware of his aunt’s problem, he came to Canton and told Lena and Charles, “I think I’ll just take the whole mortgage up; just take the whole thing off your hands”.

Matt paid the bank the exact amount of the mortgage and an assignment of the mortgage and note was given to Robert Dean Burroughs, his son. Lena signed a warranty deed conveying the property to Robert Dean Burroughs. An existing coal lease having unpaid royalties of $79,000 was also assigned by the bank to Robert Dean Burroughs.

This action originally commenced June 6, 1969 by Lena Burroughs was brought in three counts, the first sought to have the deed to Robert Dean Burroughs absolute in form declared to be a mortgage, the second and third counts sought rescission on ground of fraud and violation of a fiduciary. At the close of plaintiff’s case the trial judge directed judgment for defendants and plaintiff appealed. This court in Burroughs v. Burroughs, 1 Ill.App.3d 697, 274 N.E.2d 376, held that there was ample evidence to support plaintiff’s claim and that the direction of a judgment at the close of plaintiff’s evidence was erroneous. Most of the evidentiary facts (and applicable law) are recited in that opinion and need not be repeated here.

After remand the defendants introduced their evidence and tire trial judge entered judgment for plaintiff on Count I of the complaint ruling that the deed should be treated as a mortgage. The defendants, Matt and his son, Robert Dean Burroughs have taken this appeal from that judgment of the Circuit Court of Fulton County contending that the judgment is against the manifest weight of the evidence and contrary to law.

Their first argument is that plaintiffs failed in their burden of proof. In order to convert a deed absolute on its face into a mortgage, the proof must be clear, satisfactory, and convincing, Schwartzentruber v. Stephens, 8 Ill.2d 222. On the other hand it is not necessary that there be no conflict in the evidence. Kulick v. Kapusta, 303 Ill. 208; 27 I.L.P. Mortgages, Sec. 40.

The burden of proof is a substantial one, but we think well met in this case.

It is to be observed at the outset that while all cases of this kind are governed by and necessarily involve an application of general rules the solution of a particular problem almost invariably requires a detailed analysis of evidence, often conflicting and fragmentary, a process which, if appearing from the record as a whole to have been fairly followed by the trial court, will be approved by the appellate court, subject to weight of the evidence and questions of law.

A single element, in a particular setting may become the influential one in the process of determination. The existence of an indebtedness is essential to the conclusion that a transaction is a mortgage.

The mortgage of April 26, 1967 was by assignment of the Canton State Bank, mortgagee, on May 13, 1968, assigned, conveyed and given to Robert Dean Burroughs; this assignment also recites that the mortgage, the note, and other matters secured pass to Robert Dean Burroughs who was to have the same powers that the Canton State Bank would have.

Although Matt Burroughs denied ever having seen the note it is uncontroverted that the note got into the hands of Lachlan Crissey, attorney for the defendants at the first hearing. Mr. Crissey admitted, “The note was retained by the defendants and no release was given of the mortgage.” He admitted that Charles and Dorothy Burroughs were still liable on the note but argued that they had little funds and collectibility would be remote. Defendants conceded in their first brief that the note was never marked paid or cancelled or delivered to Lena or Charles.

Of further significance is the fact that Robert Dean Burroughs, the assignee of the note and mortgage did not join in the purported release nor did he join in the purported accord and satisfaction. These documents were signed only by Mattt Burroughs.

The fact that the grantee retains in his possession, without can- i collation, the written evidence of the existing debt indicates that the debt was not extinguished by the conveyance and that a mortgage was intended. In Wallace v. Greenman, 321 Ill. 423, the court stated, “The facts i in this case are aided by the presumption long existing in this State, that where the grantor is indebted to the grantee at the time of the convey- j anoe and the note evidencing such indebtedness is retained by the grantee, such indebtedness was not satisfied by the conveyance, and, until the contrary is shown, the presumption is that the instrument, though a deed absolute on its face, is a mortgage; and this applies whether the transaction was unprofitable to the grantee or not. Sutphen v. Cushman, 35 Ill. 186.” 27 I.L.P. Mortgages, Sec. 33; 55 Am.Jur.2d, Mortgages Sec. 57; Williams v. Griffith, 310 Ill.App. 574.

Further, the personal liability of the grantor for payment of the debt is not essential. In re A. Roth Co. 118 F.2d 156 (construing Illinois law.)

As was pointed out in the earlier opinion two real estate appraisers testified that in their opinions the value of the farm in April 1968, was $71,000 and $78,000 respectively. Such appraisals did not include any valuation attributable to the coal lease. Defendants produced one appraiser who arrived at a value of $48,000. He had not earned a brokers commission in three years, and the only one ever on a Fulton County farm involved a tract of one acre.

Insufficiency of price is always considered as an evidentiary fact to be considered with all other facts and circumstances tending to illustrate the purpose and intent of the parties to the transaction. (McDonnell v. Holden, 352 Ill. 362; Chicago Sav. and Loan Ass’n v. Byrne, 24 Ill.App.2d 560.) Its probative value is that of a corroborative circumstance of great weight. Miller v. Thomas, 14 Ill. 427; Heald v. Wright, 75 Ill. 17, Annotation: 89 A.L.R.2d 1040.

Considering all the facts in the record, the disputed testimony as to the purpose and intention of the parties as to the nature of the transaction at the time the deed was taken, we are unable to say that the trial court committed any manifest error in finding that the deed which was taken was, in reality, a mortgage.

The judgment of the Circuit Court of Fulton County will, therefore, be affirmed.

Affirmed.

ALLOY, P. J„ and STOUDER, J., concur.

       Plaintiff at the conclusion of defendant’s case asked the trial court to take judicial notice of the fact that the coal company had completed an interpleader action in the Circuit Court of Fulton County and had deposited the final payment of $73,000 due on the lease.


author: Mr. PRESIDING JUSTICE GUILD Mr. JUSTICE SEIDENFELD

text:
    Barrington Consolidated High School, School District 224 of Barrington et al., Plaintiffs-Appellees, v. The American Insurance Company et al., Defendants-Appellants—(Susan Schafer and Leo Schafer, Individually and As Father and Next Friend, Defendants-Appellees.)
    (No. 71-362;
    Second District
    May 2, 1973.
    SEIDENFELD, J., dissenting.
    Snyder, Clark, Dalziel, Holmquist & Johnson, of Waukegan, for appellant.
    Norman & Billick, and Franke & Miller, both of Chicago, for appellees.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Barrington Consolidated High School, School District 224 of Barrington, Illinois, and Kathleen Van Ness Lawyer, brought a declaratory judgment suit against The American Insurance Company, Newark, N.J., and Fireman’s Fund American Insurance Companies, Successor in Interest, to determine whether the company was obligated to defend and indemnify the school in a pending suit by a student and her father for personal injuries and medical expenses.

The trial court found that the high school and Mrs. Lawyer had no reason to believe that they would be charged with negligence; that the incident in question was not such an occurrence as would be contemplated under the provisions of the Notice Provision of the policy, and finally, that the insurance was in full force and effect and that Fireman’s Fund American Insurance Companies were obligated to defend the high school and Mrs, Lawyer, and had breached the terms of their policy in failing so to do. The trial court further ordered Fireman’s Fund American Insurance Companies to indemnify the high school and Mrs. Lawyer under the terms and provisions of the policy, and to pay costs and expenses. The Fireman’s Fund American Insurance Companies appeals.

The sole question before this court is the interpretation of the liability policy which contains a provision that the school shall give written notice to the insurance company “as soon as practicable.”

On Friday, January 29, 1965, Susan Schafer was a student at Barrington High School. She was injured in a gymnastic class in the use of a support horse. The next Monday she went to class and told Miss Van Ness (now Mrs. Lawyer) that her leg hurt. That night she went to the family doctor who put her on crutches and gave her a written excuse from gym which she delivered to Miss Van Ness on Tuesday. She also reported to the school nurse that she had been injured. She was on crutches for about two weeks. In February, 1965, she was hospitalized for three weeks. She returned to school and after school closed in the spring she was readmitted to the hospital for intensive care. On August 15, 1965, the parents of Susan Schafer inquired of the school authorities as to home tutoring for Susan. On September 16, 1965, the parents of Susan sent the following letter to the Lake County Superintendent of Schools, with a copy to Mr. Gillis, the school Principal, Dr. Finley, the school Superintendent, Mr. Schwem, the President of the School Board and Ray Page, the State Superintendent of Public Instruction. A pertinent portion of the letter is as follows:

“Our daughter, Susan, 16 years old, would be a junior attending Barrington Community Cons. High School Dist. 224 this year if it were not for an unfortunate accident which happened to her January 24, 1965. So that you may better understand our reasons for writing to your office we will briefly explain the circumstances leading up to this letter.
Susan was injured while participating in a supervised gym class. Trying to leap over the gymastic ‘horse’ she fell and ruptured a blood vessel in her leg. She entered Sherman Hospital, Elgin, for a three week stay in February. She was released and was able to finish the school year. A few days after school closing she had a relapse which several doctors attribute directly to the gym accident. Since that time she has been and still is in the Sherman Hospital under intense care. Both arms and both legs are partially paralyzed. She has endured a major operation to control blood clots which resulted from the broken blood vessel, also suffered pneumonia and complications which almost resulted in death.
As you might imagine the injury has been very expensive. To date the insurance carrier for Dist. 224 has given us no satisfaction nor have they indicated any responsibility or liability. In fact, their attitude has been in our opinion outright obnoxious. It appears at present that we will have to pursue this in court. We have already started preliminary proceedings. However, as serious and exasperating as all this has been, it is not our main reason for writing to you.
Our main questions: How much trouble is it for school administrators to supply tutoring for a physically handicapped child? How long should we wait after request has been made for our child to be given help to which she is legally and morally entitled? We made first inquiry of Mr. Gillis, principal of Dist. 224 about August 15. Incidentally, it is much more difficult to get in touch with Mr. Gillis than it is with you.
Waiting several days and hearing nothing from Mr. Gillis, we called him again to no avail. We then saw Susan’s counsellor, who gave us a list of tutors names. Then we were sent to Mr. Lundahl, Business Administrator of Dist. 224, who said he would call us when he had information. He hasn’t. At present we are still waiting for assistance in picking tutors. We don’t know which ones are available. We don’t know anything about them. Should the school administrators give us help in choosing these teachers? The school year is approaching its second week and Susan has not yet started work and is becoming apprehensive over the delay.
We would also like to ask where is the moral obligation of this school system. During the whole 12 weeks plus that Susan has been in the hospital not one administrator or teacher has offered help or even inquired about her condition. Susan has been a good student in school and has never been a problem child. We cannot help but wonder what our school system has come to when concern for the individual is so lacking, and the emphasis on buildings and image is so obvious here.
If your office can answer some of these questions for us or give us any help we will greatly appreciate it. We do not want or expect anything beyond what any other handicapped student is entitled to, but we would like the school administrators to acknowledge that we do exist.”

Mr. Gillis, the school Principal, upon receipt of the letter discussed it with the school Superintendent, Dr. Finley, who in turn delivered a copy of the letter to Mr. Lundahl, the school’s business manager, whose responsibility it was to maintain liability insurance coverage for the school. No investigation was made of the alleged injury.

Susan Schafer had accident insurance with the Guarantee Trust Life Insurance Company in contradistinction to the liability insurance the school had with The American Insurance Company, Newark, N.J., and Fireman’s Fund American Insurance Companies, Successor in Interest, their liability carrier. Some confusion apparently arose as to an interpretation of the last paragraph of the above letter as to what insurance company was referred to in the letter. During the month of January the school nurse did in fact make out an accident insurance form for Susan Schafer. Home tutors were arranged for Susan for the school year of 1965, and in 1966 special transportation was arranged to bring her to the school. On February 26, 1969, Susan Schafer filed suit against Barring-ton High School and Mrs. Lawyer, her gym teacher, for the injury she received on January 29, 1965. This suit is still pending in the circuit court. On March 5, 1969, the summons and complaint in that suit were sent to Fireman’s Fund American Insurance Companies. This was the first notification that they had of any claim relating to Susan Schafer’s injuries, and they denied coverage because of the failure of the school to notify them of the Susán Schafer accident until four years after it occurred. The instant declaratory judgment suit then followed.

The school contends that the wording of the policy “as soon as practicable” means “within a reasonable time” and that a reasonable time depends upon the facts of each case. In support of this contention they first allege that the plaintiffs had every reason to believe that no claim would arise from the trivial occurrence. This court fails to see how the school could consider this incident as being trivial. After die accident the girl was placed on crutches by her doctor for a period of approximately two weeks, was then subsequently hospitalized for three weeks, returned to school and was readmitted to the hospital after the close of the school year. The parents in writing advised the school of her injuries by the above letter and the school in turn arranged for a tutor for Susan for the following year and special transportation to the school for the next year. It is difficult to see how the school could consider the injury as trivial.

The next contention of the school is that the plaintiffs reasonably assumed that they could not be liable and were thus excused. The authorities cited by the school do not support this contention in the light of the facts in the instant case. We find that the school did not act reasonably or prudently in failing to notify their insurance earner in view of the injury herein, the subsequent hospitalization, tutoring, and special transportation arranged by the school, all of which they had full knowledge. Additionally, the letter above identifying the injury was sent to the business manager of the school whose responsibility included the maintenance of liability insurance coverage for the school.

The court in Firemans Fund Indemnity Co. v. Kennedy (1938), 97 F.2d 882, 888, quoted the opinion in Texas Glass Co. v. Fidelity & Deposit Co., Tex.Com.App., 244 S.W. 113, as follows:

“'On the other hand, it is equally clear that determination of the question whether an occurrence comes within the terms of the policy as being an accident required to be reported should not be left solely to the judgment or discretion of the assured.’ ”

In City of Chicago v. United States Fire Insurance Co. (1970), 124 Ill.App.2d 340, 260 N.E.2d 276, a worker was injured on August 2, 1962. He filed suit on March 14, 1963 and over four years later the city notified their insurance company. As the court stated at page 346:

“The subject of excuses for delayed notice in insurance liability cases was extensively reviewed at 18 A.L.R.2d 470. We learn there that courts have, on occasion, excused a late notice where the insured was ignorant of the accident or injury; where the insured, acting as a reasonable man, believed that he was not liable; where, due to the trivial nature of the occurrence, the insured believed no claim would be filed; or where the insured, acting as a reasonably prudent person, believed that the accident was not covered j by the policy. The instant case falls within none of these categories.”

With this, we agree. The instant case before us does not fall within any of the categories therein enumerated.

Plaintiff has cited Century Indemnity Co. v. Serafine, 311 Fed.2d 676 (1963) CCA 7th; and General Insurance Co. v. Gilliam County High School, 234 Fed. Sup. 109 (1964), which in substance hold that delay in giving notice is excusable in the case of a trivial occurrence and notice of every mishap or occurrence need not be given under a policy of lia- I bility insurance where the injury is subsequently discovered. These cases are not applicable to the instant situation where the school could not possibly plead ignorance or triviality in view of the facts herein.

In International Harvester Co. v. Continental Casualty Co. (1962), 33 Ill.App.2d 467, 179 N.E.2d 883 at 835, the court stated:

“A notice provision such as this is not to be considered as a technical requirement included in policies merely for the convenience of the insurance company. Rather'is it a matter of substance imposing a valid prerequisite to coverage. [Citation,] Upon the happening of an accident, a prompt, as distinguished from a delayed, investigation of the facts of the occurrence can so greatly affect the efficiency of the defense as to change the very character of the risk insured. [Citation.] It follows, therefore, that the notice requirements of a policy apply not only to the named insured but also to unnamed additional insureds under an omnibus clause. [Citations.]” 33 Ill.App.2d at 472.

In the instant case the school administrator was duly notified of the injury and did nothing. See also Coburn v. Metropolitan Life Insurance Co. (1936), 230 Mo.App. 1140, 91 S.W.2d 157, and Scammon v. Germanic Insurance Co. 1881, 101 Ill. 621.

We then turn to the position of Kathleen Van Ness Lawyer. She is an adult insured under the policy of the school and we hold the notice requirements of the policy herein, apply to unnamed additional insureds in the liability policy of coverage for the school and its employees. In Metropolitan Life Insurance Co. v. Henry (1940), 24 N.E.2d 918 (Indiana) cited by defendant, the Supreme Court of Indiana held that notice by an employee under a group life and liability insurance policy was not within a reasonable time. In the Henry case the employee was disabled in 1928 and proof thereof was not given to the employer’s insurance company until 1935; the reason being that the employee thought the group policy was for life insurance only and he had no knowledge that it covered disability until three days before he gave notice to the insurance company. The Indiana Supreme Court further held that the employer was the agent for its employee, and that failure of the employer to give notice was imputed to the employee.

The Henry case was cited with approval in Navigazione Alta Italia v. Columbia Casualty Co. (1958), 256 F.2d 26. The plaintiff there was ignorant of the coverage afforded them as additional insured under another’s policy. While it is true that notice by the additional insured was not given until after judgment had been obtained, the court at page 28 nonetheless held that knowledge of the Walsh Stevedoring Company

“# ° 6 who took the policy out for plaintiffs benefit was in law notice to the plaintiff"

This court is cognizant of the variation of the rulings on this subject in other jurisdictions. We find no case directly in point in Illinois. We therefore choose to follow the doctrine enunciated in Metropolitan Life Insurance Co. v. Henry, 24 N.E.2d 918, under the facts in this case. Attention is directed to 47 A.L.R.3d 199, where the subject of ignorance of coverage was discussed as a factor excusing delay in reporting an accident. We find that inasmuch as the school failed to give notice, this in turn binds the additional insured, Mrs. Lawyer, who in fact had no knowledge of the policy. As far as the record herein discloses, Mrs. Lawyer referred Susan Schafer to the school nurse but took no further action with regard to the incident. Mrs. Lawyer failed to notify the school authorities of the accident and considered it trivial having made no inquiry as to whether there were any coverage. The principles enunciated herein apply to her as an additional insured.

We therefore find that the notice given by the school board to its insurance carrier did not comply with the provisions of the policy herein providing for notice “as soon as practicable” and that the insurance company is therefore not bound to defend the defendants. Judgment of the trial court is reversed.

Reversed.

ABRAHAMSON, J., concurs.

Mr. JUSTICE SEIDENFELD

dissenting:

I would uphold the judgment of the trial court. Notice to the insurer “as soon as practicable” after an accident means notice within a reasonable time, dependent upon all the facts and circumstances — essentially a question of fact unless the facts and the inferences to be drawn from them are not in dispute. (Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 321-322; Walsh v. State Farm Mut. Auto. Insurance Co. (1968), 91 Ill.App.2d 156, 164.) In my view, differing inferences could reasonably be drawn from the facts and circumstances here. The finding of the trial court was not clearly erroneous or against the manifest weight of the evidence and should therefore be upheld. Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 321-322.

I would agree with the conclusion in the opinion that the injury did not turn out to be a trivial one such as would justify the delay in notice, since the letter of September 16, 1965 clearly informed the school that a serious injury had occurred which arose out of an accident at the school. But there is authority for the proposition that notice is not required until such facts have developed as would suggest to a person of ordinary and reasonable prudence that liability might arise; and the requirement of notice is met by advising the insurer within a reasonable time after the injury presents aspects of a possible claim for damages. (Star Transfer Co. v. Underwriters at Lloyds (1944), 323 Ill.App. 90, 93; Hall Const. Co. v. Employers Mut. L. Insurance Co. (1963), 43 Ill.App.2d 62, 66-68.) The rule has been generally recognized. See cases collected in Anno. 18 A.L.R.2d 443, 474 (Sec. 22); 39 A.L.R.3d 593, 597 (Sec. 2).

It appears from the record that the school cannot reasonably be charged with awareness that a liability claim might arise prior to the receipt of the Schafer letter in September of 1965. And no event occurred to make the school aware after receipt of the letter until service of the summons and complaint, following which the school notified the insurer.

The instant case must therefore be decided upon the facts surrounding the Schafer letter.

The first question is one of fact — whether the reference in the letter to the insurance carrier for Dist. No. 224 pertains to Guaranty Trust, the accident insurer. The court’s evident finding that the reference was to the health and accident carrier is not against the manifest weight of the evidence but on the contrary is amply supported by the language of the letter, the circumstances at the time it was written and the testimony of witnesses. Further, from the language of the letter and the surrounding circumstances, the trial court could find that a reasonably prudent person, reading the letter, would not believe under the circumstances that a liability claim might be entailed. While there were several contacts between the Schafers and the school to secure home tutoring for Susan, the Schafers did not indicate that they considered the school at fault for Susan Schafer’s injuries. The fact that the Schafers in no way indicated that they considered the school at fault for Susan’s injuries until four years later supports an inference, at least by hindsight, that the belief that no claim would be made was a reasonable one.

In addition, the record contains numerous facts from which the court could fairly infer that no liability would be involved. There was testimony that the activity involving the initial injury was not hazardous. The class was supervised and the principal had no reason to believe that Susan was injured in any other manner than in the course of normal gym procedure. It was common that there would be bumps or injuries but during all the years of the principal’s long association with the school he could recall no other liability claims against the school, although it was of substantial size. There were numerous accident claims, but this could reasonably lead to the inference that because this claim was initially made against only the accident insurer, with no indication of the school’s responsibility (except to provide tutoring), that no liability was involved.

The injury initially received could well have been considered by the school as the normal bump which might be expected in physical education. Susan continued in class after the fall using the same support horse and rings and did not mention anything to her teacher about the accident. While this would not detract from the seriousness of the impairment which was brought to the school’s attention later, it would indicate that the nature of tire initial injury and the circumstances surrounding it were not so unusual that a reasonably prudent person could believe no liability was entailed.

A further circumstance which the court could consider was the lack of a clear criteria for reporting occurrences and accidents under the notice provision of the policy. According to the insurance company, compliance with the literal language of the provisions by reporting all accidents was considered neither necessary nor sufficient to obtain coverage. The ambiguity as to when a potential claim or accident should be reported could properly be resolved against the insurer in the absence of its providing proper guidelines for reporting claims.

As indicated before, it was peculiarly within the province of the trial judge to resolve the question of notice upon the consideration of the various facts and circumstances outlined, and it cannot be said as a matter of law in this case that notice to the insurer was unreasonably delayed. Hall Const. Co. v. Employers Mut. L. Insurance Co. (1963), 43 Ill.App.2d 62; Haskell v. Siegmund (1960), 28 Ill.App.2d 1. See also American Employers Insurance Co. v. Town of Swanzey (N.H. 1968), 237 A.2d 681; U.S.F. & G. Co. v. Giroux (Vt. 1971), 274 A.2d 487; Frederick v. John Wood Co. (Minn. 1962), 116 N.W.2d 88; Henschel v. Hawkeye-Security Ins. Co. (Ia. 1970), 178 N.W.2d 409; Cooper v. Government Employees Ins. Co. (N.J. 1968), 237 A.2d 870.

The trial court’s finding in favor of the plaintiff, Kathleen Van Ness (now Lawyer), the gym teacher, is even more strongly supported in my view. Susan, the injured girl, did not notify Miss Van Ness of the occurrence of landing wrong on her leg. She continued in class using the support horse after the accident. Miss Van Ness was notified that Susans leg hurt the following gym class, but Susan continued to participate that day. There is no showing in the record that Miss Van Ness was aware of the cause of Susan's being on crutches after that or that she knew that the child was hospitalized in connection with the gym accident. She was not contacted by the Schafers before the suit. She left the school at the end of the school year (June, 1965), and knew nothing of the suit until March, 1969, and was served on July 19, 1969. The trial court could reasonably have found that she was not aware of the accident or that a claim or liability was involved or even that there was an additional or omnibus insurance liability policy in existence which covered her. All of these facts serve as a valid excuse for delayed notice under the cases, since the knowledge of the school itself could not be imputed to her as an additional insured. Scott v. Inter-Insurance Exchange (1933), 352 Ill. 572, 579; Haskell v. Siegmund (1960), 28 Ill.App.2d 1, 19. See also Cinq-Mars v. Travelers Insurance Co. (R.I. 1966), 218 A.2d 467; Jarka Corporation v. American Fidelity and Casualty Co. (S. Crt. — App.Div. 1963), 19 A.D.2d 141, 241 N.Y.S. 2d 546, aff’d 14 N.Y.2d 714, 199 N.E.2d 161; Navigazione Alta Italia v. Columbia Casualty Co. (5th Cir. 1958), 256 F.2d 26, 32 (dissent).

       Np issue is raised as to the fact that the accident occurred January 29th, 1965.


text:
    The City of Waukegan et al., Petitioners, v. The Environmental Protection Agency et al., Respondents.
    (No. 72-4;
    Second District
    May 2, 1973.

      SEIDENFELD, J., dissenting.
    Murray R. Conzelman, of Conzelman, Schultz, O’Meara & Snarski, and John R. Sloan, of Hall, Meyer, Fisher, Holmberg, Snook & May, both of Waukegan, for petitioners.
    William J. Scott, Attorney General, of Chicago, (Lee A. Campbell, Assistant Attorney General, of counsel,) for respondents.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from the action and order of the Illinois Pollution Control Board in assessing a fine of $1,000 against the City of Waukegan, and an additional fine of $250 each against T-K Disposal Inc., an Illinois Corporation, and Tewes Co., Inc., an Illinois Corporation.

In June of 1971 the City of Waukegan conducted its annual spring clean-up in conjunction with the aforementioned disposal or scavenger firms. The city alleged it had applied from a permit by letter to the Environmental Protection Agency but that no answer was received. In June, for a period of seven days, refuse, not including garbage, was deposited on the site provided by the city. It was then covered with dirt. The Environmental Protection Agency then brought this action before the Illinois Pollution Control Board charging the city with operating a refuse disposal site without obtaining a permit, open dumping, creating a water hazard, failing to provide daily cover, and other offenses incidental thereto.

The sole question presented in this appeal, and raised by petitioners in the hearing before the Board, is whether or not an administrative agency has the authority constitutionally to levy fines under the authority of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, secs. 1033(b), 1042, and 1044).

At the outset, this court is familiar with the case recently decided by the Third District Appellate Court entitled Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 292 N.E.2d 540. We do not agree with that opinion.

We are fully cognizant of the fact that if a case may be decided without determination of the constitutionality of the act involved, that it should be determined on a basis other than the constitutional question. The presumption is, of course, that the legislation is constitutional. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234.) But as the court stated in Wabash R.R. Co. v. Order of Railway Conductors of America (1949), 402 Ill. 548, at 551, 84 N.E.2d 406, at 408, in discussing the review of orders of the Commerce Commission:

“* * * The purpose of a judicial review of an order of the commission is to keep it within its jurisdiction, so as to not violate any rights guaranteed by the constitution.”

Administrative agencies are creatures of the legislature of rather recent vintage. The emergence of administrative agencies, as a necessary adjunct to the judicial branch of our government in our increasingly complex society, has not been without problems as to the limitation of the authority granted to them. As early as 1867, we find one of the first cases in this regard entitled Willis v. Legris, 45 Ill. 289. In that case the City of Kankakee had enacted an ordinance providing for a penalty to be imposed to prevent horses, mules, goats, sheep or swine from running at large in the city, Animals found at large were impounded and offered for sale. The owner offered to redeem them on the sale day, but the city marshall refused to deliver the animals unless the owner also paid the penalty provided by ordinance. The owner refused and sued in replevin. The supreme court, in holding that such an ordinance was unconstitutional, stated at page 292:

“* * * Every citizen has a right to a judicial investigation when charged with an offense.”

In People ex rel. Martin v. Mallary (1902), 195 Ill. 582, 63 N.E. 508, the Board of Managers of the State Reformatory transferred prisoners to the penitentiary under the Reformatory Act. The constitutionality of this Act was directly challenged, and as the court stated, the question was whether or not an executive or administrative board had the authority under the legislation in question to transfer said prisoners. The court held that the attempt by the Board of Managers to designate the place of confinement was a usurpation of the judicial power of the court.

In Cleveland, C.C. & St. L. Ry. Co. v. People ex rel. Barter (1904), 212 Ill. 638, 72 N.E. 725, the supreme court held that a statute authorizing the tax assessor and county clerk to collect a specific amount as a tax against landowners for failure to clean impediments from streams was nothing more or less than a penalty or fine which could be inflicted only by the judicial power after trial according to law. The court said at page 641:

“* # * To hold otherwise would be to permit the assessor to levy a penalty and deprive the offender of his property without due process of law * * *. It is no answer to say that the property owner can object to the tax in the county court and there have these questions judicially determined, for the reason that if the assessor has the power to impose the penalty and the county cleric has the power to extend the taxes, there is nothing left for the county court but to overrule the objection, as the question of violation has been previously determined by these officers.”

Since the advent of administrative agencies, we find a lessening of the strict separation of powers of the three branches of our government. Certain “quasi judicial” functions have been delegated to administrative agencies. The problem encountered is the line of demarcation between those functions granted administrative agencies that are in fact “quasi judicial” and those functions that are judicial. We do not believe that actual judicial authority can be granted to administrative agencies under the guise of being “quasi judicial” or “ministerial.”

We turn then to cases of comparatively recent date. In Harrison v. Civil Service Com. (1953), 1 Ill.2d 137, 146-147, 115 N.E.2d 521, the court stated:

“It is readily apparent that section 11 (par. 274) of the Administrative Review Act does not contemplate any such broad powers of review, for it is specifically provided in this provision that the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. The court is not authorized to weigh the evidence, nor to make its own independent determination of the facts, as under the statute involved in the Schoeberlein case. On the contrary, the type of judicial review authorized under the Administrative Review Act, whereby the court must regard the findings of the agency as prima facie correct and is permitted to set them aside only if they are contrary to the manifest weight of the evidence, has traditionally been regarded as a judicial function, comparable to the issue at law as to whether there is competent evidence to support a judgment of a lower court. [Citation.]”

Considering the limitations of the judiciary, the rationale of West End Savings & Loan Ass’n v. Smith (1959), 16 Ill.2d 523, 525-526, 158 N.E.2d 608, is that the courts have the power and the duty to determine if administrative findings and orders have support in the evidence, but conversely the courts cannot be invested with power to determine and decide matters of an executive or legislative character. At page 525 the court stated:

“It is a familiar principle of constitutional law that none of the three departments of our government may exercise powers properly belonging to either of the other two. Pursuant to this commandment we have repeatedly held that where authority has been conferred upon administrative agencies to perform functions of an executive nature, provisions for trial de novo in courts of law violate the separation-of-powers principle. [Citations.]”

In 1938 the supreme court, in Department of Finance v. Cohen, 369 Ill. 510, 17 N.E.2d 327, considered the imposition of a penalty by a ministerial body. The legislature had provided that the Department of Finance could compute a deficiency assessment under the Retailers’ Occupational Tax Act. The court, in holding that the computation by the Department of the deficiency was not an exercise of judicial power within the meaning of the constitution, stated in substance, that the agent, in figuring the deficiency, was performing a ministerial act which required merely a mathematical calculation or computation from data upon which all minds must ordinarily reach the same result. As the court stated:

“The statute sets forth with great detail the matters which must go into the monthly return, and lays down a guide which, when followed, leaves nothing open for arbitrary discretion.” 369 Ill. at 516.

It is thus obvious that no judicial discretionary determination of a fine or penalty was considered in that case. The ruling in Cohen was cited with approval by the supreme court in Department of Finance v. Gandolfi (1940), 375 Ill. 237, 30 N.E.2d 737. In Gandolfi, the Department of Finance computed the amount due under the retailers’ occupation tax against the defendant to be $1035 as the tax, and $258.75 as penalties. In Gandolfi, after stating the substance of the ruling in Cohen, the supreme court held that no constitutional judicial power was delegated to the Department of Finance, but that the collection of the statutory tax and statutory penalty requiring merely mathematical calculation was incidental to the duty of administering the law and did not constitute the exercise of judicial power.

However, in Reid v. Smith (1940), 375 Ill. 147,152, 30 N.E.2d 908, 911, the supreme court held that the Department of Labor or the awarding body could not impose a penalty of $10 a day for each laborer not receiving prevailing wages provided for under the prevailing wage law. The supreme court further held that the statutory authority granted to the awarding body or the Department of Labor was invalid as an attempt to confer judicial power

“* * * upon such bodies contrary to article 3 of the constitution. [Citations.] The fact that an appeal is provided from the decision of the awarding body or Department of Labor in so declaring a forfeiture, does not justify one department of government exercising powers belonging to another. [Citations.]” (375 Ill. at 152.)

It is to be noted that in Reid no discretionary amount was authorized by a flat $10 a day penalty.

It has been uniformly held as stated in Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 717, that the power to suspend, revoke, and otherwise deal with licenses may be delegated to an administrative officer or agency, and as stated above, if there is a penalty incidental thereto and the same is merely a matter of a specified amount or simple calculation, the same may be considered a quasi-judicial act not offensive to the separation of the three powers of our government. Conceding for the moment the constitutional authority of the administrative body, as stated above, the reviewing court in considering the actions of an administrative body must consider the factual findings of that body as prima facie correct unless against the manifest weight of the evidence. However, that is not the issue in the case before us. It is pointed out merely to illustrate the limitations upon our review of the actions of the Pollution Control Board. In other words, this reviewing court is performing much the same function in its review of the actions of an administrative agency as it is in the review of the actions of a trial court. If we concede the power to an administrative agency to impose a discretionary fine upon a transgressor before that Board, we have invested all of the possible judicial power upon a ministerial body. The only function of a court not granted to that body is the judicial power to collect the fine imposed and only then does the judicial system appear upon the scene.

The subject of ecology and preservation of our natural resources is a much publicized and emotional issue before the public today. Perhaps as a result thereof, the legislature has provided in the Environmental Protection Act that appeals from the decisions of the Illinois Pollution Control Board shall be directly to the appellate courts to expedite time-wise the hearing of pollution cases.

No Illinois case has been cited, nor is there any with which we are familiar, other than the current Third District Appellate Court opinion, Ford, cited herein, which holds that an administrative body may hear evidence, determine guilt, and impose a discretionary fine for the violation.

In the case before us, the Environmental Protection Agency asked for a fine of $10,000 against the City of Waukegan. A fine of $1,000 was imposed. One of the members of the Pollution Control Board, not taking part in the hearing, “concurred” and suggested that the fine be doubled to cover the cost. It matters not in the end whether we consider an order for the payment of money a civil or criminal proceeding, nor does it matter if we call it a penalty or a fine. The result is exactly the same.

We believe, with due deference to the opinion of tire Appellate Court, Third District, that the granting of power to the Illinois Pollution Control Board to impose a $10,000 fine is an unlawful delegation of the judicial powers to an administrative agency. We further believe that nothing is solved by labeling such a procedure quasi-judicial; nor is this power to fine a mere mathematical calculation on data from which all reasonable minds would reach the same result. The Board here imposed fines of $1,000 and $250. These amounts might have been doubled as one Board member suggested, or they might have been any other amount up to a limit of $10,000. The imposition of a discretionary fine is a distinctly judicial act and one that cannot be exercised by an administrative body. Gradual erosion of the judicial power of the State in favor of administrative bodies endangers our system of government. There is no question but that the Illinois Pollution Control Board may hold hearings and make factual determinations; however, the imposition of a discretionary fine and the collection thereof must necessarily be a matter of judicial determination by a court.

Examination of the statutes pertaining to Public Health in Illinois (Ill. Rev. Stat. 1971, ch. 111½), disclose no fewer than twenty-four penalty provisions relating to violations of the various public health laws of this State ranging from a minimum fine to five years in prison. In not one single instance, except under the Environmental Control Act, is authority granted to the administrative body to impose penalties or fines, and obviously, not imprisonment. The argument that the Environmental Control Act cannot be enforced except by granting to the Pollution Control Board the power to impose fines, appears specious when one considers that such actions are not granted in other acts important to public health.

Moreover, we find sections 1033(b), 1042, and 1044, of the Environmental Control Act, read together, are less than a clear investment of such power in the Board. Section 1033(b) provides that after hearing and due consideration, the Board shall enter a final order which may include “the imposition by the Board of money penalties in accord with Title XII of this Act.” Sections 1042 and 1044 are found in Title XII of the Act. It is provided at Section 1042 that any person violating the Act, regulations or order of the Board, shall be liable to a penalty of not to exceed $10,000 which “may be recovered in a civil action” brought in the name of the People of the State of Illinois by the State’s Attorney or the Attorney General. As originally adopted, section 1044 provided, without specifying any penalty, that “it shall be a misdemeanor to violate this Act or regulations thereunder. * * *” Public Act 77-2830, effective January 1, 1973, conforming criminal penalties to the Unified Code of Corrections, amended section 1044 to provide that it shall be a Class A misdemeanor to violate the Act or regulations thereunder. (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—9—1 provides a maximum fine of $1,000 for Class A misdemeanors.) If for no reason other than the ambiguities or inconsistencies which we believe arise from these sections, we would feel compelled to set aside any fine imposed by the Board.

We therefore reverse and set aside the order of the Pollution Control Board.

ABRAHAMSON, J., concurs.

Mr. JUSTICE SEIDENFELD

dissenting:

I would uphold the Board’s authority to impose variable monetary penalties, as in Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 292 N.E.2d 540.

Petitioners do not urge as a separate ground for reversal that the Board’s findings were against the manifest weight of the evidence or that the Board acted arbitrarily, capriciously, or otherwise abused its discretion in dealing with them. The sole issue raised is whether section 33(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(b)) violates the separation-of-powers provision of the Illinois constitution.

The Illinois Supreme Court has never specifically held that the ability of an administrative agency to assess a variable monetary penalty necessarily violates the separation of powers restriction. The court has held that the assessment of a wide variety of sanctions by an administrative agency is permissible. (People ex rel. Rice v. Wilson Oil Co. (1936), 364 Ill. 406 (fixing of bond penalty); Department of Finance v. Cohen (1938), 369 Ill. 510 (deficiency assessment); Department of Finance v. Gandolfi (1940), 375 Ill. 237 (tax penalty); Vissering Mercantile Co. v. Annunzio (1953), 1 Ill.2d 108 (adverse publicity); Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89 (denial of license); Cermak Club, Inc. v. Illinois Liquor Com. (1963), 30 Ill.2d 90 (revocation of license).) The cases cited by petitioners, Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. People ex rel. Barter (1904), 212 Ill. 638, and Reid v. Smith (1940), 375 Ill. 147, are distinguishable, as was pointed out by the Third District. Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 715-716, 292 N.E.2d 540, 542-543.

The majority opinion relies on the fact that the fine is discretionary. While this may be a factor to consider, as indicated by the language of the cases referred to by the majority, it should not be conclusive. Administrators often exercise judgment and discretion, and investigate, deliberate and decide without exercising judicial power within the meaning of the constitutional restriction dealing with separation of powers. (Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463, 473.) The danger that administrative discretion may be exercised arbitrarily that exists in fixing the amount of a monetary penalty exists also in apportioning costs of construction of commerce facilities (Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952), 412 Ill. 579) or in denying a license to a currency exchange. Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89.

Similarly, it is not altogether realistic to draw the line of discretion short of variable monetary penalties while allowing administrative agencies the freedom to impose non-monetary sanctions or fixed monetary penalties. (See Gellhorn, 1970 Wash. U.L.Q. 265, 271-279; Jaffe, Judicial Control of Administrative Agencies (1965), pp. 112-114; 1 K. Davis, Administrative Law, sec. 2.13 (1958), pp. 134-138.) It may be wiser from a practical viewpoint to enable an administrative agency to fine according to the seriousness of the infraction and other relevant criteria rather than be limited to an all-or-nothing sanction such as revocation of a license. (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 718, 292 N.E.2d 540, 545.) On the other hand, the imposition of a non-monetary penalty such as suspension of a license or permit for a period of time to be determined by tire administrative agency amounts in effect to a less precise form of a flexible monetary fine. Even with a fixed monetary penalty, administrative discretion as to how many violations to prosecute, which frequently cumulate by days as well as the number of regulations infracted, will determine the ultimate amount of the penalty the violator will have to pay.

The majority opinion takes the position that “actual judicial authority” should not be granted to administrative agencies under the guise of being labelled “quasi-judicial” or “ministerial.” However, classification of official duties under the three heads of legislative, executive, and judicial cannot be very exact, and there are many officials whose duties cannot properly, or at least exclusively, be arranged under either of these heads. (People v. Joyce (1910), 246 Ill. 124, 135.) Numerous instances can be cited where functions apparently judicial in nature when performed by an administrative body or official do not violate the separation of powers provision of the constitution. See George v. People (1897), 167 Ill. 447, 458-464, and instances discussed therein. See also, e.g., Department of Public Works & Buildings v. Lanter (1953), 413 Ill. 581 (eminent domain powers); Chicago Junction Ry. Co. v. Illinois Commerce Com. (1952) , 412 Ill. 579 (apportionment of costs); Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463 (determination of employment relation); Grand Trunk Western Ry. v. Industrial Com. (1920), 291 Ill. 167 (entitlement to workmen’s compensation).

Admittedly, possibilities of abuse, discrimination, and capriciousness exist when a penalizer has a choice about the severity of the penalty he will impose. Both courts and legislatures have been reluctant to authorize administrative agencies to impose variable monetary penalties. However, the dangers involved in and the necessity of conferring flexible penalty powers are considerations at first instance and primarily to be carefully weighed by the legislature before choosing to confer such authority. Courts are limited to determining whether the authority conferred is incidental to administering the law (Cermak Club, Inc. v. Illinois Liquor Com. (1963), 30 Ill.2d 90, 93; Gadlin v. Auditor of Public Accounts (1953) , 414 Ill. 89, 97), and whether the administrative agency is invested with arbitrary powers. Department of Finance v. Cohen (1938), 369 Ill. 510, 514-515, 516-517; Rough v. Hoehler (1952), 413 Ill. 409, 420-421.

Thus the legislature may confer that measure of authority which is practically and reasonably necessary to accomplish the legislative purpose. (Department of Public Works & Buildings v. Lanter (1953), 413 Ill. 581, 587, 589-590; Reif v. Barrett (1934), 355 Ill. 104, 132-133; Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 718, 292 N.E.2d 540, 543-544.) A broader delegation of discretionary power is justified where it is needed to deal with significant problems involving public health and safety (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711; 292 N.E.2d 540, 543-544; 1 Cooper, State Administrative Law (1965), pp. 36-37, 63, 91.), particularly where there is a need for expertise to deal with a complex area of regulation (Department of Public Works v. Lanter (1953), 413 Ill. 581, 586-588, 589-590), or where there is a need for expeditious procedures. Crowell v. Benson (1932), 285 U.S. 22, 54, 52 S.Ct. 285, 293-294.

Whether sufficient safeguards and limitations accompany a questioned delegation of authority requires an examination of the entire context in which the conferred authority is exercised. (See Rough v. Hoehler (1952), 413 Ill. 409, 420-421; Toplis & Harding, Inc. v. Murphy (1943), 384 Ill. 463, 470-473.) Since the true meaning of the doctrine of separation of powers is that the whole power shall not be lodged in the same hands (Hills v. Relyea (1966), 34 Ill.2d 552, 557), the most essential check on arbitrary administrative action is meaningful judicial review in which courts make the final determination of lawfulness of agency action. Crowell v. Benson, 285 U.S. 22, 54, 52 S.Ct. 285, 293-294 (1932); 1 Cooper, State Administrative Law (1965), p. 17; 1 K. Davis, Administrative Law (1958), sec. 2.10, p. 115; Utton, 7 Nat. Res. J. 599, 603, 626 (April 1967).

I would conclude that the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1001 et seq.) does not confer judicial powers within the meaning of the separation of powers prohibition of the constitution.

The Environmental Protection Act was enacted to provide a consistent state-wide response to serious dangers posed by damage to our environment and to assure that adverse effects upon the environment are borne by those who cause them. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1002, 1008, 1011, 1014, 1020, 1023; O’Connor v. City of Rockford (1972), 52 Ill.2d 360, 366.) It cannot be doubted that protection of the environment is both a pervading and urgent problem. Article XI of the 1970 Illinois constitution mandates the legislature to take effective action to deal with threats to the environment. The Record of Proceedings of the Sixth Illinois Constitutional Convention discloses that the framers of the present state constitution in drafting and adopting article XI considered the threat to the environment had reached crisis proportions and wanted the General Assembly to enact effective enforcement procdures in legislation designed to protect the environment from pollution. Verbatim Transcripts, Vol. IV, pp. 2990-2991, 2993, 3000, 3011-3012, 3490-3491; Committee Proposals, Vol. VI, pp. 693-720.

The majority opinion points to other provisions of chapter 111% of the Revised Statutes that deal with public health to demonstrate that administrative assessment of penalties is not necessary. However, not only is there no constitutional mandate for these other laws, but the absence of a flexible penalty power in those instances perhaps serves to underscore the necessity for conferring such power the legislature must have felt in enacting the Environmental Protection Act. Moreover, the other laws of chapter 111% generally deal with narrow area (e.g., par. 73.1 et seq. (funeral directors and embalmers); par. 128 et seq. (stray animals); par. 185.1 et seq. (migrant labor camps)) and uncomplicated rules of conduct (e.g., licensing, registration, examination, maintenance of premises).

Without the flexible penalty power, effective administration of the Environmental Protection Act might become difficult if not impossible. (Ford v. Environmental Protection Agency (3d Dist. 1973), 7 Ill.App.3d, 292 N.E.2d 540, 545.) Courts are cumbersome, inefficient, and expensive by comparison to streamlined administrative procedures designed to deal specifically and flexibility with one problem-area. Fines imposed by courts would inevitably be inconsistent, whereas the Pollution Control Board with its expertise and centralized jurisdiction could more intelligently and effectively achieve the legislative purpose. See O’Connor v. City of Rockford (1972), 52 Ill.2d 360, 366-368.

Limits are placed on the amount of the penalty assessable. (Ill. Rev. Stat. 1971, ch. 111½, par. 1042.) Standards are provided in the Act that must guide Board determinations in enforcement proceedings, which would include determinations as to the amount of the fine imposed. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1033(c), 1002(b), 1020. See Hill v. Relyea (1966), 34 Ill.2d 552.) A hearing with procedural safeguards is required at which evidence of violations must be presented. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1031-1033.) Significantly, the investigatory and prosecutorial functions are carried out by one agency (Ill. Rev. Stat. 1971, ch. 111½, pars. 1004, 1030, 1031), while the adjudicatory function is performed by another. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1005, 1031-1033. See 1 Cooper, State Administrative Law (1965), pp. 19-20, 26.) The Board’s findings, reasons, and opinion must be published (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(a); Rockwell Lime Co. v. Commerce Com. (1970), 373 Ill. 309, 322-323.), and the Board’s own rules require written decisions embodying findings, conclusions, and reasons for its decision on all material issues of fact, law, or discretion presented on the record. (PCB Reg. #331(a).) The adherence of the Board to its own rules would apparently require it to justify the amount of the fine imposed in an enforcement proceeding since this is a discretionary act. Finally, to insure that these safeguards are followed, judicial review pursuant to the Administrative Review Act is available. Ill. Rev. Stat. 1971, ch. 111½, par. 1041.

Section 11 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 274) extends administrative review to cover all questions of law and fact presented by the record. The reviewing court may determine whether the Board’s actions and authority are constitutional (Commonwealth Edison Co. v. Pollution Control Board (1972), 5 Ill.App.3d 800); whether Board actions exceed statutory authority (Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158; A. E. Staley Manufacturing Co. v. Environmental Protection Agency (4th Dist. 1972), 8 Ill.App.3d 1018, 290 N.E.2d 892); whether the Board has considered only data, opinions, and testimony adduced at the hearing appealed from and in the record (North Shore Sanitary Dist. v. Pollution Control Board (1972), 2 Ill.App.3d 797); whether the legislative standards have been properly construed and applied in imposing penalties (Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App. 711, 292 N.E.2d 540); whether the Board’s orders are sufficiently certain (Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158); and whether the Board’s findings and determinations are supported by the evidence. Seegren v. Environmental Protection Agency (2d Dist. 1972), 8 Ill.App.3d 1049, 291 N.E.2d 347; McIntyre v. Pollution Control Board (3d Dist. 1972), 8 Ill.App.3d 1026, 291 N.E.2d 253; Wachta v. Pollution Control Board (1972), 8 Ill.App.3d 436.

The reviewing court has before it the record of proceedings, including findings and reasons in which the violation was found and the penalty fixed. In such circumstances, it is possible, giving due deference to Board discretion, to judge whether the Board properly considered legislative standards, did not consider impermissible bases in fixing the penalty, and did not act arbitrarily or capriciously, or otherwise abuse its discretion in penalizing the violator. Thus if the penalty imposed is clearly unwarranted and excessive the reviewing court may refuse to sanction it, or remand the determination for proper consideration, or only affirm so much of the penalty as is “justified by the record.” Ill. Rev. Stat. 1971, ch. 110, par. 275(e) (f) and (g), made apphcable to appellate review by Supreme Court Rule 335(h)(2) (IU. Rev. Stat. 1971, ch. 110A, par. 335(h)(2)); Citizens Utilities Co. v. Illinois Pollution Control Board (1972), 9 Ill.App.3d 158.

Finally, while not raised by petitioners, the majority felt compelled additionally to hold the statutory authority in question fatally ambiguous. In my view, section 44 (Ill. Rev. Stat. 1971, ch. 111½, par. 1044) dealing with criminal sanctions, clearly is meant to be construed independent of the Board’s authority to impose civil sanctions. Section 42 (Ill. Rev. Stat. 1971, ch. 111½, par. 1042) prescribes limits the Board must follow in fixing the penalty and provides for a civil action to collect the penalty after its assessment. In cases of administrative review recovery of the penalty by resort to a separate civil action is unnecessary, since the reviewing court has the power to enter judgment upon which execution may issue if it affirms the Board’s determination. Ill. Rev. Stat. 1971, ch. 110, par. 275(h).

The imposition of flexible monetary penalties by the Pollution Control Board can be regarded as a necessary power to achieve an urgent legislative purpose which is sufficiently circumscribed by standards, procedxxral safeguards, and meaningful judicial review. For these reasons I would not consider section 33(b) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(b)) violative of the separation of powers provision of the Illinois constitution. I woxxld therefore affirm the Board’s order and enter judgment for the amounts specified therein.

       Shortly after the refuse disposal activities began the Environmental Protection Agency notified two of the petitioners that they were in violation of the Act and directed them to cease operations, which they did not do. Four months later shortly after the Agency filed a complaint, the city of Waukegan requested a permit for its already accomplished dumping.

        E.g., Ill. Rev. Stat. 1971, ch. 111½, pars. 116.54, 116.90, 170, 185.11.

        E.g., Ill. Rev. Stat. 1971, ch. 111½, pars. 155, 729, 1042.

        E.g., W. J. Dillner Trans. Co. v. Public Utility Com. (1959), 191 Pa. Super. 136, 155 A.2d 429.

       The Board in the instant proceeding failed to give reasons for choosing to fine the City of Waukegan $1000 and the remaining petitioners $250 each. However, petitioners do not challenge this deficiency.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jessie Rowell, Defendant-Appellant.
    (No. 72-127;
    Second District
    May 3, 1973.
    Paul Bradley, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Orville Earl Booth, Defendant-Appellant.
    (No. 72-193;
    Second District
    May 3, 1973.
   Opinion by

Mr. JUSTICE SEIDENFELD.

Ralph Ruebner, of Elgin, for appellant.

Philip G. Reinhard, State’s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People.


author: Mr. JUSTICE SMITPI Mr. PRESIDING JUSTICE CRAVEN

text:
    Delbert Marler, Plaintiff-Appellant, v. Moultrie-Shelby Farm Service et al., Defendants—(Moultrie-Shelby Farm Service, Defendant-Appellee.)
    (No. 11752;
    Fourth District
    April 26, 1973.

      CRAVEN, P. J., concurring in part and dissenting in part.
    Rosenberg, Rosenberg, Bickes & Johnson, of Decatur, (Wayne L. Bickes, David L. Johnson, of counsel,) for appellant.
    Wilson, Dyar, Houchen & McDonald, of Decatur, (Vernon H. Houchen, of counsel,) for appellee.
   Mr. JUSTICE SMITPI

delivered the opinion of the court:

The circuit court of Macon County directed verdicts at the close of the plaintiff’s evidence in favor of the three defendants. Defendant Goodrich was an employee of NRG Fuels Corporation and they were charged in the trial court with the failure to properly inspect and repair propane gas lines running from a tank into the basement of the house where a gas explosion occurred. The plaintiff does not appeal from the directed verdicts as to these two defendants.

The Moultrie-Shelby Farm Service, referred to hereinafter as FS, is charged with two items of negligence: (1) with the negligent installation of copper tubing running from an outside propane gas tank through the walls of the basement and (2) with the failure to odorize the propane gas. The property was owned by church trustees and was rented by them to the plaintiff and his wife at the time of the explosion. The husband went down into the basement when they moved in on August 11, 1969, to light the hot water heater and the explosion in question occurred. The plaintiff sustained severe burns and permanent injuries.

The church trustees had contracted with FS in 1965 to install a liquid propane gas system on the property. The installation consisted of a 500-gallon propane gas tank behind the house and a copper line transmitting the propane from the tank through a low pressure regulator and then through the foundation of the house into the basement. The foundation was composed of brick and mortar and the outside had been stuccoed. The tubing apparently went through the stucco and between two bricks at the mortar joint. The plaintiff testified that he turned on the gas at the tank and then lighted all four burners on their kitchen gas stove. At that time neither he nor his wife observed any odor of any kind. He then went down into the basement and pulled the switch to light the electric water heater. There was a spark, a flash and an explosion and his next recollection is awakening in the hospital. The premises in question had been vacant since June of the same year.

The preceding tenants had last purchased 100 gallons of propane from FS in May of the same year. During the preceding fall, they had had the other two defendants inspect the gas lines because of an odor in the house, and testified that that odor continued while they were there. There is evidence that there had been some sewer disturbance and the failure of the sewer in the house to function properly. The trastees had worked on this problem in the spring before the explosion. In the preceding fall, defendant Goodrich inspected the gas lines and pronounced them o.k. He testified that he did not examine the line through the foundation because it could not be seen or reached. Why he did not detect the odor of gas at the time of the inspection, or why the gas didn’t previously explode when the electric water heater was on is unexplained in this record.

Immediately following the explosion, the trustees of the church came out and removed a piece of copper tubing some 4 to 6 inches long which had been in the foundation. This tubing was corroded and eaten away, leaving holes in it.

The uncontroverted testimony is that FS supplied the propane from some time in the preceding October and had installed the system in 1965. FS was never called in to inspect the lines nor is it charged with any failure to properly maintain the lines after the gas enters the resi-, dence. Goodrich testified that the previous tenants had asked his company to inspect the gas line and its joints, and this he had done in accordance with the usual practice, but had not inspected this particular portion of the copper tubing because it was hidden by the foundation. He tightened up some joints and testified that he came to the conclusion that the gas which the tenants had smelled in the basement was sewer gas. The tenants testified they had smelled either sewer gas or gas during this period, but did not know which.

The manager of the defendant NRG Fuels Corporation testified that he had been in the business for about 12 years and had occasion to observe copper pipe through mortar and cement and stated “I have seen some copper eaten up by corrosion. There is a customary or practical way of avoiding this sort of thing in the business, that is, to put a piece of pipe on a sleeve, or wrap the copper where it goes through the foundation”. On cross-examination, he stated “I have seen installations where there was no sleeve involved and it ran through brick or cement. I have seen installations where the copper was not corroded in those situations. As to whether it is certain kinds of cement that will corrode or eat up a copper tubing, I couldn’t answer that because I don’t know. I don’t know whether it is a particular kind of mortar or whether aU mortar reacts the same way”. This is the sum total of any testimony about custom in the installation of this type of tubing. This evidence is significant by the absence of what it says rather than otherwise. There is no evidence that this custom existed at the time of the installation. There is no evidence that failure to sleeve or wrap the tubing per se caused the corrosion. The testimony is that sometimes it does and sometimes it doesn’t. There is no evidence to indicate whether the lines at the point of its failure belonged to the property owner or to the defendant. Can it be said that it is the duty of this defendant who was delivering gas to the household to examine, maintain and correct aU of the inside installations affecting the system? We think not. In Clare v. Bond County Gas Co., 356 Ill. 241, 244, 190 N.E. 278, the court stated:

“In the absence of notice of defects, it is not incumbent upon a gas company to exercise reasonable care to ascertain whether or not service pipes under the control of the property owner or the consumer are fit for the furnishing of gas. As a general proposition, a person’s duty can extend no further than its right, power and authority to carry it out. It cannot be seriously urged that the employees of the gas company have the right to go upon the premises of one of its customers for the purpose of inspecting his pipes or other fixtures except upon the invitation, license or permission of the owner.”

In Summers v. Northern Illinois Gas Co., 117 Ill.App.2d 125, 253 N.E.2d 881, it appears that the instrumentality causing the property damage was defective gas transmission pipes and gas meters owned and maintained by the defendant in that case. There is no such evidence in this record. Nowhere does it appear that FS owned the internal gas transmission system, the gas appliances or had any control over them.

A custom or usage to become binding upon the parties must have antiquity as well as uniformity and universality and have continued for a sufficient length of time that the parties must have contracted in relation to it. (F. B. Miller Agency v. Home Insurance Co., 276 Ill.App. 418, 427.) It should generally be established by more than one witness so as to raise a presumption that others knew it or should have known it. (Traff v. Fabro, 337 Ill.App. 83, 84 N.E.2d 874.) The evidence of the plaintiff is wholly insufficient to establish that it was the custom to sleeve the pipe. (Hardman v. Helene Curtis Industries, 48 Ill.App.2d 42, N.E.2d 681; Wilke Metal Products, Inc. v. David Architectural Metals, Inc., 92 Ill.App.2d 265, 236 N.E.2d 303.) Under these circumstances, we find it difficult to find any evidence to support a duty on the defendant to maintain the line or any evidence to estabhsh a custom followed at the time of the installation with reference to sleeving or wrapping a copper pipe when it goes through a foundation from which a duty would arise. It is pure speculation. Thus the trial court correctly directed a verdict on the issue of installation.

' The second point is whether or not the defendant filled the tank with non-odorized or insufficiently odorized gas, when by the exercise of ordinary care the defendant knew or should have known that this gas. could not be detected by the plaintiff or any other person upon said premises without odorization. Defendant’s gas department manager testified as an adverse witness under Ill. Rev. Stat. 1969, ch. 110A, par. 60, and among other things as abstracted stated: “When we get propane, we buy it in bulk. We do not have the odorizer ourselves. It is added at the point of pick-up, at the terminal where it comes from. Our immediate supplier is supposed to odorize the gas. We do not perform any test to see that it is odorized”. None of tire witnesses testified that they at any time smelled the odor of propane gas. While this is negative testimony, its weight and credibility are for the determination of the jury. (Hulke v. International Mfg. Co., 14 Ill.App.2d 5, 142 N.E.2d 717; McDaniels v. Terminal R Ass’n of St. Louis, 302 Ill.App. 332, 23 N.E.2d 785.) In McDaniels, at p. 352, the court stated: “While negative testimony may not be of as much weight as positive testimony, the weight and credibility of both are for the determination of the jury. (Noonan v. Mates, 197 Ill. App. 103.)” We would also observe that Goodrich was familiar with the odor of propane gas and smelled none. The plaintiff smelled none. The previous tenants smelled some kind of gas and didn’t know what it was. Such testimony does have probative value on the issue as to whether or not the defendant in this case supplied this consumer with propane gas which had been properly treated with a malodorant sufficient in quantity to warn people of its existence. The record here shows that so far as this defendant was concerned, they bought the gas supposedly already sufficiently treated. They delivered the gas. By such action they uncategorically represented that the gas was fit and safe for use in gas appliances. In Hulke, the defendant Skelly was held liable as a producer of a dangerous commodity on the theory that with an inherently or intrinsically dangerous substance Skelly could not escape liability or evade it by employing an independent contractor to do it. In this state, “Gas is a dangerous commodity, and the corporation which undertakes to furnish such service must exercise a degree of care commensurate to the danger which it is its duty to avoid and must use every reasonable precaution in guarding against injury to the person or property of other”. (Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305.) We cannot say as a matter of law that the defendant in this case fulfilled its duty and that whether or not the propane gas was sufficiently odorized to be safe is a question of fact for a jury determination. If the supplier did odorize the gas, the question yet remains whether or not it was sufficiently odorized to warn ordinary people of its presence. Accordingly, the judgment of the circuit court is affirmed as to negligent instaHation and the cause is reversed and remanded to the trial court on the issue of a failure to odorize or cause to be odorized.

Judgment affirmed in part; reversed and remanded in part.

TRAPP, J., concurs.

Mr. PRESIDING JUSTICE CRAVEN

concurring in part and dissenting in part:

The question of whether the defendant fulfilled its duty and whether or not the propane gas was sufficiently odorized so as to be safe was a question of fact for the jury. Thus, I agree with that portion of the majority opinion that so holds.

Upon this record, the issue of negligent installation of the gasline was also a question of fact for the jury, and I would reverse and remand upon that issue.

The complaint alleged that the defendant installed the tank and the connecting line in 1985. The connecting line was inserted through the foundation and, as the majority notes, apparently went through tire stucco and two bricks at the mortar joint. This distribution line, or tubing, was not protected by a noncorrosive sleeve. The tubing thus installed was corroded, leaving holes through which the gas could and did leak into the basement. The complaint alleges that the corrosion was caused by the combination of mortar and corrosive elements contained in the cement and mortar surrounding the tubing. The answer essentially admits the foregoing allegations; and as to the allegation with reference to the cause of the corrosion, the answer admits the allegation but “affirmatively states that the corrosion was not caused by any act or doing of this defendant”.

Thus, upon the pleadings, it seems to me that the majority opinion requires proof of admitted facts. The defendant in this case is charged with negligent installation, not merely failure to inspect the tank and distribution system. The allegations and admissions aided by the testimony of the witness Richard Short were sufficient to establish negligent installation and a breach of the required duty, at least such was sufficient to constitute an issue of fact for the jury.

The witness Short who had been in the business of sale and installation of propane facilities in the area for 12 years testified with reference to the manner of installation and the cause of corrosion. His testimony as abstracted reads:

“In the usual course of our business our company installs propane tanks and lines and all. I have been engaged in the part of the business that concerns the installation of propane lines and facilities for approximately 12 years. During this time I have had occasion to observe copper pipes put through mortar and cement. With reference to what I have noticed about any of these installations with regard to corrosion, I have seen some copper eaten up by corrosion.
There is a customary or practical way of avoiding this sort of thing in the business. That is to put a piece of pipe on a sleeve, or wrap the copper where it goes through the foundation.
I have seen installations where there was no sleeve involved and it ran through brick or cement. I have seen installations where the copper was not corroded in those situations. As to whether it is only certain kinds of cement that will corrode or eat up a copper tubing, I couldn’t answer that because I don’t know. I don’t know whether it’s a particular kind of mortar or whether all mortar reacts the same way.”

In this state, as the majority opinion notes, gas is a dangerous commodity and those who undertake to furnish service, whether installation of facilities or distribution of gas, must exercise a degree of care commensurate with the danger. This the defendant did not do. Accordingly, I dissent from that portion of the majority opinion that affirms a directed verdict on negligent installation issue.


author: Mr. JUSTICE STOUDER

text:
    Louis R. Bessler, Plaintiff-Appellant, v. Board of Education of Chartered School District No. 150 of Peoria County, Defendant-Appellee.
    (No. 72-294;
    Third District
    May 9, 1973.

      R. W. Deffenbaugh, of Springfield, for appellant.
    Gary S. Clem, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-Appellant, Louise Bessler, appeals from a summary judgment entered by the Circuit Court of Peoria County in favor of the DefendantAppellee, The Board of Education of Chartered School District No. 150 of Peoria County. In the plaintiffs Petition for Writ of Mandamus and Complaint for Declaratory Judgment and Injunctive Relief, she sought to compel the defendant to assign her duties as a full-time teacher for the school year 1972-1973.

The following facts are relevant for our consideration. Louise Bessler was employed by School District No. 150 in October, 1970 and commenced teaching duties in November, 1970. She was employed by the District almost two months after the school term began. She completed the remainder of the 1970-1971 school year and was re-employed to teach in the District in the school year 1971-1972.

On March 28, 1972, Louise Bessler was notified by Byron McCormick, Personnel Director of the District, that she would not be re-employed to teach in the school year 1972-1973. The deadline for notifying her of the nonrenewal of her contract was April 3, 1972. Public action was taken by the Board at its regularly scheduled meeting on April 10, 1972.

According to the School Code (Ill. Rev. Stat. 1971, Chap. 122, Sec. 24—11), the “employing board” is to give written notification to a teacher as to whether such teacher will be re-employed. Notice is to be given at least 60 days before the end of the school term. The plaintiff pleaded that since she was not notified by the School Board during the time specified by the statute, she must be considered re-employed. According to the defendant, notice by the Personnel Director and the subsequent School Board action was sufficient to comply with the statute. In support of its affirmative defense that plaintiff was properly discharged, it filed a motion for summary judgment supported by affidavits which was granted by the trial court. No motion for summary judgment was filed by the plaintiff so the only question is the propriety of the judgment granted pursuant to the defendant’s motion.

Although the affidavits and pleadings of the parties appear somewhat sketchy, the undisputed facts indicate the real issue before us is whether the School Board meeting which took place subsequent to the notification given by the Personnel Director constituted compliance with the statute.

It is the contention of the plaintiff that the authority of the School Board to hire and fire a teacher cannot be delegated nor exercised by someone other than the Board. In support thereof plaintiff cites (Elder, v. Board of Education of School Dist. No. 127½, 60 Ill.App.2d 56, 208 N.E.2d 423), where the court considered the power of a board of education to discharge teachers as a discretionary power which cannot be delegated even to a superintendent. This is true even where the delegation is expressly authorized by the School Board. (Board of Education in and for the School District of the City of Rockford v. Rockford Education Association, 3 Ill.App.3d 1090, 280 N.E.2d 286.) Plaintiff also cites Stroh v. Casner, 201 Ill.App. 281, where the court stated that the people have chosen the members of the Board who are to exercise these discretionary powers and the people have a right to have such powers exercised only by those in whom they have placed their confidence.

It is claimed in the affidavit by the Director of Personnel for the School District that he “understood” the responsibility to so notify teachers they will not be re-employed was delegated to the Director of Personnel by the Board of Education. Although we doubt that the affiant’s “understanding” is sufficient compliance with the rules relating to affidavits in support of a motion for summary judgment, we do not quarrel with the proposition that some member of the administrative staff may communicate the Board’s action to a teacher under the terms of the statute. However, so far as the notice itself and the affidavits are concerned, there is nothing from which it can be reasonably inferred that the affiant was merely conveying the action of the Board. In fact the circumstances are to the contrary since the notice appeai-s to be the action of only the Personnel Director and official action of the School Board did not take place until two weeks later.

An argument is made by the defendant that a decision not to re-employ the plaintiff was made by the Board of Education in an executive session prior to the sending of the notice, however, there is no claim made that this was an official Board action. There is nothing in the record to indicate what happened at that meeting, if in fact it was held. In relying upon Collinsville Community Unit School District No. 10 v. Witte, 5 Ill.App.3d 600, 283 N.E.2d 718, defendant contends that the public action taken by the Board in its meeting on April 10, 1972 constitutes ratification of the executive session and the action of the Personnel Director. We do not think the doctrine of ratification is applicable to this case because a statutory duty was imposed on the Board which it failed to perform within the time allowed by the statute. Under these circumstances, the prior action of the Personnel- Director in determining and notifying the plaintiff of dismissal was without legal effect. Therefore the trial court was in error in entering summary judgment for the defendant, the facts being insufficient to entitle him to a judgment as a matter of law.

Accordingly, the summary judgment entered in favor of defendant is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.

SCOTT, P. J., and DIXON, J., concur.