text:
    A. HAROLD ANDERSON et al., Plaintiffs-Appellants, v. EDWIN F. SUTTER et al., Defendants-Appellees.
    Second District
    No. 82—1033
    Opinion filed December 7, 1983.

      Donald H. Geiger, of Waukegan, for appellants.
    Stephen G. Applehans and Charles W. Smith, both of Rosing, Magee & Applehans, of Waukegan, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, A. Harold Anderson and William Hutson, appeal from that portion of a December 2, 1982, order of the trial court which granted a motion to dismiss their complaint, which sought damages and injunctive relief, against defendant, the village of Third Lake (village).

The issues we must determine on plaintiffs’ appeal are: (1) whether the notice of injury provision of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) is applicable where injunctive relief is ■ sought; (2) whether the notice of injury provision is applicable to the request for damages under the facts of the instant case; (3) whether the limitation period of section 8 — 101 and the notice of injury provision of section 8 — 102 of the Act had not run because the injury was alleged to be continuing or repeated; and (4) whether sufficient notice of injury was given to satisfy section 8 — 102 of the Act.

The village cross-appeals from a portion of the December 2, 1982, order which denied its motion to dismiss the complaint on the alternate basis of the village’s alleged immunity under section 3 — 103(a) of the Act. (Ill. Rev. Stat. 1981, ch. 85, par 3 — 103(a).) While agreeing that the complaint was properly dismissed on its motion for plaintiffs’ failure to give timely notice of injury, the village in its cross-appeal contends that the complaint also should have been dismissed under the immunity provision of section 3 — 103(a) of the Act.

Plaintiffs filed suit on May 13, 1982, against the village and certain individual defendants. In their complaint they alleged that plaintiff Anderson owned land that drained into “the Avon-Fremont Ditch through Third Lake to Mill Creek” and that plaintiff Hutson owned land “located on either side of the Avon-Fremont Ditch extension which drains through Third Lake and down Mill Creek.” Plaintiffs alleged that the water level in the Avon-Fremont Ditch, Third Lake and Mill Creek had been controlled by a concrete dam with a spillway that had an elevation of 761.64 feet above sea level; that a new sheet pile dam had been constructed with a spillway elevation of 764.31 feet; that the old dam had not been removed; that the construction of the new sheet pile dam resulted in a water level in Third Lake of 764.31 feet or more when the radial gate in the dam was closed; that the village obtained a permit from the Illinois Department of Transportation (IDOT) to build the new dam and that in the application for this permit the village stated that the new dam would not “flood or damage adjoining property ***;” that construction had been completed for “nearly two years”; that plaintiffs had made complaints as to the damage to their property by the excessively high level of the lake water because of the improper construction of the sheet pile dam; that IDOT had requested the village to reduce the spillway of the new dam to “763.4 feet MSL 1929 Adj;” and that the village had refused to reduce the spillway.

Plaintiffs alleged that as a result of the construction of the new dam the water is held back in Old Mill Creek, Third Lake and Avon-Fremont Drainage Ditch “causing great damage to plaintiffs’ property and its usage as owned and used by plaintiffs.” Plaintiffs, therefore, sought an injunction ordering the village to remove the old dam and to “reduce the level of the sheet pile dam to maintain the water at its normal elevation of 762.53 feet MSL 1929 Adj. using a correct U.S.G.S. bench mark.” They also sought to enjoin the village from “adding any boards to either the old or new dam or closing the gate on the new dam until the disposition of the law suit.” Plaintiffs additionally sought $10,000 actual damages and $30,000 punitive damages. Exhibits were attached to the complaint which contained legal descriptions of plaintiffs' property and various documents relating to the permit to construct the dam and correspondence about the dam subsequent to its construction.

Defendants moved to dismiss plaintiffs’ complaint claiming, inter alia, that the complaint sought monetary damages against the village without alleging that the notice requirements of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) had been met and that the village was immune from suit under section 3 — 103 of the Act because the dam had been approved by IDOT. The motion to dismiss also sought to dismiss the individual defendants from the suit.

The trial court entered an order on December 2, 1982, dismissing the individual defendants, refusing to dismiss the complaint against the village based on immunity, but granting the dismissal for failure to comply with the section 8 — 102 (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) notice requirements. The plaintiffs have not appealed from the dismissal of the individual defendants.

Initially, we note that in their appellate brief plaintiffs assert that they have the right to injunctive relief against the village under the facts alleged in the complaint. The propriety of mandatory injunctive relief against the village was not raised in the motion to dismiss nor referred to by the trial court in its order, nor has the village, as appellee, raised or addressed this argument in its brief in support of the judgment below. Generally, an issue not raised in the trial court cannot be raised for the first time on review. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313, 335 N.E.2d 448.) Under the circumstances here, we will not consider an issue not raised by the pleadings and not ruled on in the judgment from which the appeal was taken.

Plaintiffs argue that the trial court erroneously dismissed their complaint because the trial court improperly applied the notice requirement of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) to the portion of plaintiffs’ complaint which sought injunctive relief. Plaintiffs contend that the notice requirement of section 8 — 102 only applies to tort actions. They maintain that because their complaint sought injunctive relief, it was not a tort action and, therefore, that no notice was required.

Section 8 — 102 requires that “*** any person who is about to commence any civil action for damages” (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) against a local public entity must provide notice to that entity within one year from the date of injury or the date the cause of action accrued. Section 8 — 103 provides that if this notice is not given, the person who was injured is forever barred from bringing suit.

No Illinois case appears to have directly addressed the question whether section 8 — 102, or the Local Governmental and Governmental Employees Tort Immunity Act generally, applies to injunction actions. In Kepper v. LaSalle-Peru Township High School District No. 120 (1972), 7 Ill. App. 3d 138, 287 N.E.2d 180, the court applied the notice provision of the act to a suit in which a mandatory injunction was sought, along with other relief, but was not called upon to review whether the request for injunctive relief was not within the Act. In Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 973, 447 N.E.2d 1358, the defendant village conceded that the Act did not provide immunity from equitable relief. However, neither case directly addressed whether the Act applied to a request for an injunction.

Several decisions have held the Act to be inapplicable to certain causes of actions. In Firestone v. Fritz (1983), 119 Ill. App. 3d 685, this court held the Act inapplicable where a violation of a constitutional right was alleged rather than a tort. This court also held the Act inapplicable to a suit for compensation for damages resulting from the lawful vacation of a road in Streeter v. County of Winnebago (1976), 44 Ill. App. 3d 392, 357 N.E.2d 1371. We held there that the case had “no element of tort” since the vacation was within the county’s powers. (44 Ill. App. 3d 392, 395, 357 N.E.2d 1371.) In City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331, the court held that section 8 — 102 did not apply to a counterclaim asserted against a city where the city first brought suit. In Luker v. Nelson (N.D. Ill. 1972), 341 E Supp. 111, 118, the court held that section 8 — 102 did not apply to civil rights actions brought under 42 U.S.C. sec. 1983. In Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54, the court held that the notice provisions of the act did not apply to an action for contribution against a local government. None of these cases is dispositive of the question whether the Act, particularly the notice provision, applies to a suit for injunction.

Generally, when construing a statute, the statutory language should be given its plain and ordinary meaning. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211-12, 443 N.E.2d 563; Mirabella v. Safeway Insurance Co. (1983), 114 Ill. App. 3d 680, 683, 449 N.E.2d 258.) Section 2 — 101 of the Act provides, in part, that “[njothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee.” (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 101.) Section 8 — 102 requires notice to be given by “*** any person who is about to commence any civil action for damages ***.” (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102.) The plain and ordinary meaning of the language in these two sections is that the Act, and its section 8 — 102 notice requirements, do not apply to a suit for an injunction because injunctive relief is “*** relief other than damages ***.” (Ill. Rev. Stat. 1981, ch. 85, par. 2 — 101.) Therefore, the trial court erred in dismissing the portion of plaintiffs’ complaint which sought injunctive relief.

Plaintiffs next maintain that as to their request for damages a distinction exists between “common torts which fall under section 8 — 102 and more complex causes of action which do not readily fall within the statutory framework.” They contend that this case involves a “complex” tort and that, therefore, section 8 — 102 does not apply to the damages portion of their complaint.

As discussed above, several cases have held that section 8 — 102 does not apply to certain types of actions. (Luker v. Nelson (N.D. Ill. 1972), 341 F. Supp. 111, 117 (sec. 1983 actions); Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54 (contribution actions); Firestone v. Fritz (1983), 119 Ill. App. 3d 685 (violation of constitutional rights); Streeter v. County of Winnebago (1976), 44 Ill. App. 3d 392, 357 N.E.2d 1371 (actions not involving a tort); City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331 (counterclaims).) However, this action does not fall within any of those categories.

Here, plaintiffs’ complaint seeks damages for an injury inflicted by the allegedly wrongful acts of the village. Plaintiffs seek to recover for “improper construction,” which damaged their property. In a similar case, where flooding was caused by the allegedly negligent design of a culvert system, the court held that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.) did apply. (Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 1077, 443 N.E.2d 737.) Similarly, we hold that the notice requirement of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.) applies to this action for damages allegedly caused by flooding which resulted from the “improper construction” of a dam.

Plaintiffs maintain, however, that assuming their cause of action for damages is a tort action and that it comes within the Act and its notice provision, that the time period for giving notice had not begun to run at the time they filed suit because this case involves a continuing or repeated tort. They contend that sections 8 — 101 and 8 — 102 impose a statute of limitations and that the statute of limitations runs from the “date of the last injury or when the tortious acts cease.” They maintain that their injury is continuing, that the tortious act has not ceased, and, therefore, that the time period has not yet begun to run.

Section 8 — 101 is, by its terms, a statute of limitations and section 8 — 102 has been treated like a statute of limitations. (See Helle v. Brush (1973), 53 Ill. 2d 405, 409, 292 N.E .2d 372; Stephens v. McBride (1982), 105 Ill. App. 3d 880, 885-86, 435 N.E.2d 162, aff’d 97 Ill. 2d 515, 455 N.E .2d 54.) Where a tort involves repeated injury, the limitation period begins to run from the date of the last injury or when the tortious acts cease. Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 1079, 443 N.E.2d 737; City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E .2d 331.

In Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 443 N.E.2d 737, the plaintiff alleged receipt of injury on two separate occasions, one in 1974 and the other in 1980, from the defendant’s negligent design of a culvert system. Both injuries occurred during unusually heavy rainstorms and involved the washing away of plaintiff’s driveway. The court held that the rule applicable to these facts was that each successive injury by overflow gave rise to a separate cause of action and started a new limitations period. 110 Ill. App. 3d 1074, 1078, 443 N.E.2d 737.

Starcevich appears to be an application of the rule established in Jones v. Sanitary District (1911), 252 Ill. 591, 97 N.E. 210, that where the injury was not the necessary, immediate, and direct result of the construction undertaken, but resulted from the recurrent and intermittent overflow of land, then the limitations period runs from the last overflow and only the damages caused by that overflow are compensable in that suit. (See also Firestone v. Fritz (1983), 119 Ill. App. 3d 685.) On the other hand, if the continuance and operation of a permanent structure are necessarily injurious, then the injury is permanent and the limitations period runs from the date that the construction was completed. See Vette v. Sanitary District (1913), 260 Ill. 432, 438, 103 N.E.241.

Plaintiffs’ complaint does not allege the date on which their lands were first flooded nor the dates of any subsequent flooding. The complaint does not allege whether their lands have been continuously flooded since construction of the dam or whether the flooding is intermittent. It is likewise not entirely clear whether plaintiffs contend that the construction of the dam or the operation of the dam’s radial gate is the cause of their injury. This information is necessary to determine whether the period for giving notice under section 8 — 102 has lapsed. (See Vette v. Sanitary District (1913), 260 Ill. 432, 438, 103 N.E. 241; Jones v. Sanitary District (1911), 252 Ill. 591, 97 N.E. 210; Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 443 N.E.2d 737.) Because this information was lacking, the trial court could not as a matter of law determine from the pleadings that the notice period had run. The more appropriate procedure below would have been a motion for a more particular statement (Ill. Rev. Stat. 1981, ch. 110, par. 2— 612) or for a bill of particulars (Ill. Rev. Stat. 1981, ch. 110, par. 2— 607). This matter may be corrected on remand.

Plaintiffs also contend on appeal that they satisfied the notice requirements of section 8 — 102. However, since we hold that the complaint contained insufficient information to ascertain the date of the injury, it is likewise impossible to determine whether the notice plaintiffs assert that they gave occurred within the statutory period for notice. We note also that whether the notice was sufficient to comply with section 8 — 102 is a factual determination which was not addressed or determined below. We decline to review this question on the record before us.

The village has filed a cross-appeal from that portion of the trial court’s order which specifically found that the dam was “not reasonably safe” and which denied the village’s alternate ground for dismissal on the basis of immunity pursuant to section 3 — 103(a) of the Act (Ill. Rev. Stat. 1981, ch. 85, par. 3 — 103(a)). Section 3 — 103(a) provides:

“A local public entity is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe.”

Generally, the denial of a motion to dismiss is not, of itself, a final appealable order. (Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 353, 403 N.E.2d 1260.) Moreover, findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee. (Material Service Corp. v. Depart ment of Revenue (1983), 98 Ill. 2d 382, 387.) Since the village did raise in the trial court the alternate ground for dismissal based upon the immunity provision of section 3 — 103(a), we will consider this argument on appeal to determine if it will sustain the judgment below. A reviewing court is not bound to accept the reasons given by the trial court for its judgment, and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217.

Section 3 — 103(a) provides for immunity for a local public entity for injury attributed to the plan or design of an improvement to public property where such plan or design has been approved by a body or employee exercising discretionary authority to give such approval. The public entity may become liable, however, if after the construction or improvement is completed it appears from its use that an unsafe condition has been created. See Baum, Tort Liability of Local Governments and their Employees, 1966 U. Ill. L.E 981, 1015-16.

Here, from our examination of the entire complaint, and the exhibits attached thereto, it is evident that the crux of plaintiffs’ complaint is not a claim that there was fault in the plan or design of the dam which had been approved by the Department of Transportation. Rather, the allegations in plaintiffs’ complaint appear to go to the issues of improper construction, deviation from the approved plan, and operation of the dam’s radial gate. Thus, though the complaint does not clearly allege when the injury arose, nor precisely how the injury was caused, it is apparent that plaintiffs do not allege that the cause of the injury was the plan or design of the dam. Therefore, the immunity provision is not controlling on these facts (cf. Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 1080, 443 N.E.2d 737), and the alternate immunity argument does not support the judgment dismissing the complaint.

For the foregoing reasons, the order of the circuit court of Lake County dismissing the plaintiffs’ complaint is reversed, the cross-appeal is dismissed, and the cause is remanded for further proceedings.

Reversed and remanded, cross-appeal dismissed.

NASH and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
      In re MARRIAGE OF ANN EDENS DEGENER, Petitioner-Appellee, and PAUL ARNOLD DEGENER, JR., Respondent—(The Allstate Retirement Plan et al., Respondents-Appellants).
    Second District
    No. 83 — 48
    Opinion filed December 7, 1983.

      Louis M. Rundió, Jr., and Joseph P. Mulhern, both of McDermott, Will & Emery, of Chicago, for appellants.
    Roger A. White & Associates, of Lake Bluff, and Judith I. Avner, of New York, New York, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether a retirement plan may be required to become a party to a dissolution of marriage proceeding, is the issue on appeal.

Ann Degener petitioned for dissolution of her marriage to Paul Degener. During the course of the property distribution proceedings she sought to have the Allstate Retirement Plan and its Administrative Committee (Plan) made a party. Paul Degener was a Plan participant as a former employee of Allstate Insurance Company who, although not presently receiving benefits, would be so entitled upon reaching retirement age. Additionally, on his death the Plan provided for payment of benefits to his named beneficiary. The motion to make the Plan a party alleged that the court had ruled that the pension was marital property as to which Ann Degener was entitled to receive a 40% share in benefits when paid. An order was sought that the Plan make monthly distribution when due by issuing two checks representing the distributive share awarded by the court to each of the parties; and to pay any benefits unpaid in the event of Paul’s death to Ann Degener.

The Plan moved to dismiss on the basis that the court lacked the authority to make the Plan a party to the suit and on the further basis that Ann Degener lacked standing to pursue a claim against the Plan in the dissolution proceeding. The motion was denied, and the Plan was ordered to respond to the petition. The Plan answered and moved for summary judgment. The circuit court found that Ann De-gener was entitled to judgment as a matter of law. The court concluded that Paul Degener’s pension benefits were marital property, that Ann Degener was a “co-owner” of the pension benefits, and that therefore she was not a mere creditor barred by anti-attachment statutes from pressing her claim. The court ordered the Plan to make monthly payments, 40% to Ann and 60% to Paul, and to pay any remainder to Ann in the event of Paul’s death. Upon the post-trial motion hearing the court modified its order to reflect the agreement of the parties regarding disposition of remaining benefits after Paul’s death.

The finding that Paul’s interest in the Pension Plan is marital property acquired entirely during the marriage is not in dispute. (See, e.g., In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 659.) Ann’s right to enforce the dissolution decree provisions against the husband when the payments under the Plan are actually made is also not in question.

Ann, however, argues that section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)) gives the court broad authority to fully settle the disposition of marital property which, in her view, includes the authority to order the Plan to make direct payments to her to insure her receipt of payment without further litigation or inconvenience.

We are unable to find that broad authority in the Marriage and Dissolution of Marriage Act as it has been interpreted. The declaration of marital property rights upon dissolution of a marriage have been held not to interfere with contractual rights of either spouse in the marital property. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 573-75.) The classification of property interests does not create a species of co-ownership as the trial court order assumes, but is for the purpose of equitably distributing the property, which “is subject to distribution within those limitations set by laws governing transfers, assignments and conveyances of such property.” Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 574.

From a reading of the pension fund document it is apparent that the Plan is under a contractual obligation to its former employee to protect the fund until time for distribution and then to distribute it in accordance with the contract. Ann is not a participant under the terms of the contract. She has no contractual right to insist upon being named a beneficiary in the event of her husband’s death. Thus, the classification of the pension as marital property does not avoid any limitations set by law as it may govern private pension contracts.

Ann argues that statutory joinder provisions give the court broad discretion as to the addition of parties and that we should therefore decide the joinder as a matter of the court’s discretion. We cannot agree. We have found no statutory authority that authorizes the dissolution court to make the Plan a party against its will.

Section 2 — -405(a) of the Illinois Code of Civil Procedure provides, in substance, that parties may be joined (1) who have or claim any interest in the controversy, or (2) are necessary to be made a party for the complete determination of any question involved in the controversy, or (3) against whom a liability is asserted. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 405(a).) Section 2 — 406(a) further provides that if a person, not a party, has an interest or title which the judgment may affect, the court shall, in application, direct such person to be made a party. We do not find the Plan subject to joinder under these provisions.

The Plan clearly has no interest or title which the judgment in the dissolution proceedings can affect. The judgment in the dissolution proceedings deals with the division of property rights between the spouses; the husband who is bound by the decree can be required under the court’s continuing jurisdiction to pay out as directed to the wife. The Plan has no liability except to perform its fiduciary duties to its participant. The duties which it must perform are not questioned or involved in the dissolution proceedings. The Plan is not concerned with what percentage of the proceeds will be due by the husband to the wife as found in the dissolution decree.

The fact that the Plan holds an asset which becomes, upon dissolution of a marriage, subject to allocation of property rights between the spouses does not qualify it as an indispensible party to the suit between the spouses. An indispensible party has been defined as one whose presence in the suit is required "(1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence [citations]; (2) to reach a decision which will protect the interests of those who are before the court [citations]; or (3) to enable the court to make a complete determination of the controversy.” (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 269.) Without the presence of the Plan the court is able to protect the interests of the parties before it by making a complete division of the property. The Plan has no interest to protect which requires it to be before the court. The wife has made no showing that she will not be able to receive the funds when the payments are made, only that she may have to pursue her remedy against the husband at that time.

To the contrary, courts customarily treat pension rights in dissolution without joinder of the particular plan. In an appropriate case, the court can reduce the pension plan to present value and award an offsetting value of money or property to the nonemployee spouse. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 974.) In other cases, the court can order the employee spouse to pay the allocated portion of the fund, as disbursed, directly to the nonemployee spouse, retaining jurisdiction to enforce the decree. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663.) In either instance the court is not interfering with contract rights existing between the employee and the pension plan.

In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, cited by Ann, does not support the argument that joinder of the Plan is appropriate. In Peshek, it was necessary to make the land trust, which had at some time during the marriage owned property of the husband and the wife, a party because it appeared that at the time of dissolution part of that property may have been transferred to other parties in possible violation of the wife’s rights. The trial court thus had to resolve the validity of the land trust and claims by third parties in order to determine the marital asset to be divided. Here there is no dispute as to the pension assets or the validity or interpretation of the pension trust; and there are no claims of third parties to resolve.

The Plan further argues that by the terms of the pension contract and the applicable Illinois law regulating trusts and garnishments, it would be exposed to liability from its former employee and would be in violation of law if it agreed to the court’s order as a matter of convenience.

We agree. Section 3.11 of the Plan document provides in substance that no pension benefit under the Plan shall be subject to alienation, encumbrance, or transfer, nor liable for or subject to debts or liabilities of the participant. This provision has been held valid and enforceable as against familial obligations. (Dinwiddie v. Baumberger (1974), 18 Ill. App. 3d 933, 936.) In Dinwiddie, section 49 of the then Chancery Act (Ill. Rev. Stat. 1971, ch. 22, par. 49) provided in substance that a trust created in good faith by, or proceeding from some third person other than the beneficiary is excepted from discovery or execution. This section has been held declarative of the common law. (Stirlen v. Jewett (1897), 165 Ill. 410, 414.) The same section was subsequently transferred to “An Act to regulate the practice of courts in granting equitable relief” as section 49. (Ill. Rev. Stat. 1979, ch. 110, par. 399.) Section 49 has now been incorporated into section 2 — 1402 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402.) While the particular language found in the former supplemental proceeding sections excepting trusts is not found in the new Code of Civil Procedure section, there is a provision that the “rights of any adverse claimant shall be asserted and determined pursuant to the law relating to garnishment proceedings.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402(e).

Under the present sections 12 — 704 and 12 — 804 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 12 — 704, 12 — 804), benefits payable by pension or retirement funds are exempt from garnishment or wage deduction. This follows the previous provisions in “An Act in regard to Garnishment ***” and “An Act relating to wage deductions ***.” Ill. Rev. Stat. 1979, ch. 62, pars. 33.2, 73.1.

In summary, Ann Degener cannot properly be considered a co-owner of the trust benefits. Under the Marriage and Dissolution of Marriage Act the pension fund can be made the subject of division of the marital property. It does not follow that statutory provisions governing the exemption of pension benefits from garnishment or wage deduction or the provisions of the pension contracts may be disregarded. See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 574; In re Marriage ofPapeck (1981), 95 Ill. App. 3d 624, 630.

The Fund notes that it is governed by the Federal Employee Retirement Income Security Act of 1974 (ERISA) and that this preempts State law to the extent it is related to employee benefit plans. (29 U.S.C. sec. 1144(a) (1976).) ERISA also requires that the Plan benefits be nonassignable and nonalienable. (29 U.S.C. sec. 1056(d)(1) (1976).) We recognize, as Ann Degener points out, that ERISA has been interpreted as designed to protect individuals from their own improvidence and to assure financial security for employees and their families. (Carpenters Pension Trust v. Kronschnabel (C.D. Cal. 1978), 460 F. Supp. 978, aff’d (9th Cir. 1980), 632 F.2d 745, cert, denied (1981), 453 U.S. 922, 69 L. Ed. 2d 1004, 101 S. Ct. 3159. See also Stone v. Stone (N.D. Cal. 1978), 450 F. Supp. 919.) We see no conflict here in the general policy that interests in benefits should be available to the participant and available for family obligations. In fact, cases which have been cited which hold that pension benefits acquired during the marriage are marital property perform that function. Cases cited by Ann Degener which purport to allow garnishment of pension benefits (Operating Engineers’ Local 428 Pension Trust Fund v. Zamborsky (9th Cir. 1981), 650 F.2d 196; American Telephone & Telegraph Co. v. Merry (2d Cir. 1979), 592 F.2d 118) involve enforcement of garnishment law which, unlike Illinois, do not exempt pension funds from garnishment.

We are mindful that as a matter of public policy a strong argument can be made for a simple remedy to ensure the direct payment of pension benefits to a spouse in an amount allocated in a dissolution decree so as to avoid entangling the parties directly in unpleasant, expensive and difficult matters of future collection. We can find no way, however, to sanction the method employed by the trial court toward this end. To approve this we believe that we would have to disregard equally strong public policy expressed in legislative enactments approving non-alienation and spendthrift provisions and exempting pension funds from garnishment or wage deduction. If this is to be done and an exception carved out for spouses who are in the process of a dissolution of marriage, the problem should be further addressed by the legislature.

The judgment of the circuit court of Lake County is reversed.

Reversed.

UNVERZAGT and HOPF, JJ., concur.

      The omitted language providing that the court cannot order satisfaction of judgment out of judgment debtor’s trust property if the “trust has, in good faith, been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor” has been added by Public Act 83 — 314 as new paragraph 2 — 1403 to chapter 110, effective September 14, 1983. (1983 Ill. Laws 1779.) The omission appears to have been inadvertent.


author: JUSTICE LINDBERG

text:
    THE BOARD OF COMMISSIONERS OF THE WOOD DALE PUBLIC LIBRARY DISTRICT et al., Plaintiffs-Appellants, v. THE COUNTY OF DU PAGE et al., Defendants-Appellees.
    Second District
    No. 83—681
    Opinion filed December 7, 1983.

      Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton, and John T. Eisner and J. R. Schirott, both of Schirott & Eisner, of Itasca (Barbara Pre-iner, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is the second appeal in a public library district’s action challenging a county’s practice of retaining the interest earned on the district’s tax revenues collected on its behalf by the county. In the first appeal, we held that that practice was unconstitutional (107 Ill. App. 3d 409, 437 N.E.2d 923) and our supreme court affirmed (96 Ill. 2d 378). That decision compels us now to reverse the trial court’s entry of summary judgment in favor of the county.

The County Treasurer of Du Page County, as ex-officio county collector for the county, collects tax moneys for and on behalf of the units of local government located in the county. Since October 1, 1972, the county treasurer has invested those tax moneys and earned interest on the investment. He has not, however, distributed the interest moneys to the units of local government, but rather deposited the interest moneys in the county corporate fund.

In the first appeal of this cause (hereinafter Wood Dale I), the issue was whether plaintiffs, the Board of Commissioners of the Wood Dale Public Library District and the Wood Dale Public Library District (hereinafter the district) had stated a cause of action against the following defendants: the County of Du Page; the Board of Commissioners of the County of Du Page; and John Lotus Novak, County Treasurer of Du Page County (hereinafter the county). The district had brought the action on its own relation and purportedly on behalf of all units of local government in Du Page County. The complaint, which the Du Page County circuit court had dismissed, contained two counts. Count I alleged that the county’s practice of retaining the interest earned on the district’s and others’ collected tax moneys violated section 2 of “An Act relating to certain investments of public funds by public agencies” (the Investment of Public Funds Act) (Ill. Rev. Stat. 1981, ch. 85, par. 902), and count II alleged that the county’s practice violated section 9(a) of article VII of the 1970 Illinois Constitution. The district prayed for a declaratory judgment that retention of the interest by the county was improper, a permanent injunction enjoining the county from retaining interest, and accounting for the period from October 1, 1972, to the conclusion of the litigation, and other relief. The county maintained that retention of the interest was authorized by section 6.1 of “An Act concerning county treasurers ***” (the County Treasurers’ Act) (Ill. Rev. Stat. 1981, ch. 36, par. 22.1) and was not constitutionally prohibited.

This court held that the county’s practice of retaining the interest on the district’s tax revenues violates article VII, section 9(a) of the Illinois Constitution and that this conclusion militates in favor of the statutory interpretation that section 6.1 of the County Treasurers’ Act is not intended to authorize such practice. (107 Ill. App. 3d 409, 417, 437 N.E.2d 923, 930.) The supreme court agreed with this conclusion; however, that court specifically declined to reach the question of the effect of section 280 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 761) on the district’s cause of action because the relevant amendment to that section became effective subsequent to the dismissal order and was, therefore, not considered by the trial court. 96 Ill. 2d 378, 384-85.

On remand, the trial court found that section 280 prospectively bars the district’s claim and that the district is not entitled to retrospective relief. On those bases, the trial court granted the county’s motion for summary judgment in its favor. The district appeals, challenging both findings of the trial court and its dismissal of the district’s motions for class certification and a preliminary injunction.

EFFECT OF SECTION 280

The district first contends that if section 280 is construed to permit the county’s retention of the interest earned on the district’s collected tax revenues, then the statute violates article VII, section 9(a) of the 1970 Illinois Constitution (salaries and fees clause). That part of the Constitution provides:

“(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds dispersed or collected, nor upon the levy or extension of taxes.” Ill. Const. 1970, art. VII, sec. 9(a).

Section 280 of the Revenue Act of 1939 provides:

“Sec. 280. Subject to the provisions of ‘An Act requiring certain custodians of public moneys to file and publish statements of the receipts and disbursements thereof,’ approved June 24, 1919, as heretofore or hereafter amended, and ‘An Act in relation to the preparation, publication and filing of annual accounts of certain municipalities, the payment of tax monies to treasurers of certain municipalities, and providing penalties for violations thereof,’ approved August 15, 1961, as heretofore or hereafter amended, the county collector in counties with a population of 3,000,000 or more, shall on the first day of June and the first day of each and every month thereafter, pay over to the other proper authorities or persons the amounts in his hands and payable to them as taxes, not theretofore paid over. In counties with a population of less than 3,000,000, the county collector shall within 30 days after due date and at 30-day intervals thereafter, pay over to the other proper authorities or persons the amounts in his hands and payable to them as taxes, not theretofore paid over. Taxes collected in counties with a population of less than 3,000,000 and not distributed to other proper authorities shall be invested in accordance with the provisions of Section 1 of ‘An Act in relation to the deposit of public funds,’ approved July 16, 1963, as heretofore or hereafter amended, and the interest accrued on monies held by the county collectors in excess of 30 days after the due date and the succeeding 30 day intervals thereafter, shall be distributed along with the principal amount of taxes.
Any county collector who wilfully fails to pay over the amount of taxes due and payable, at the time or times required by this Section, shall be subject as a penalty for such failure to pay a sum of money equal to the interest on such amount at the rate of one-tenth of one (1) per cent per day from the time such amount becomes due and payable until the same is paid; and the sureties upon the official bond of such collector shall be liable for the payment of such penalty. The penalty in this Section provided may be recovered in a civil action against such collector and his sureties aforesaid, in the name of the People of the State of Illinois, in any court of competent jurisdiction, and the amount of the penalty, when recovered, shall be paid, in counties with a population of less than 3,000,000, to the proper authorities or persons for whom the tax was collected, and in counties with a population of 3,000,000 or more, into the county treasury.” Ill. Rev. Stat. 1981, ch. 120, par. 761.

Although the appellate court and supreme court opinions in Wood Dale I did not address this particular statute, those decisions dictate our resolution of this issue in the district’s favor. That is because those decisions held that the practice by the county of retaining the interest on the district’s collected tax revenues is unconstitutional as constituting the retention of a “fee” which is “based upon funds disbursed [or] collected [or] upon the levy or extension of the taxes.” We stated that “insofar as the retention of interest in this case is in effect a charge upon units of local government *** it is proscribed by the last sentence of article VII, section 9(a).” (107 Ill. App. 3d 409, 415, 437 N.E.2d 923, 929.) Thus, if section 280 is read to authorize the retention of interest for 30 days, as the county argues it does, it is invalid as permitting an unconstitutional fee.

The county argues that section 280 avoids the evils at which the constitutional provision was aimed and which this court found in section 6.1 of the County Treasurers’ Act. In Wood Dale I, this court stated:

“It is clear from the constitutional debates that the evils that article VII, section 9(a) was designed to correct are the danger of deceiving the public as to county finances and the perceived inequity of the ‘skim-off’ for those paying higher taxes. This would appear to be present in the interest retention scheme of the Treasurers Act. Retaining a percentage of tax funds in interest is no different in effect from taking a portion of the principal. The fact that the county has some control over the time of distribution of the collected funds and gains by delay in distribution also illustrates the danger which the constitutional change appears designed to prevent.” 107 Ill. App. 3d 409, 416, 437 N.E.2d 923, 929.

The county claims that the fact that section 280 does not create a deception of the public by a “skim-off” is demonstrated by the existence of a line item within the county’s non-corporate levy for covering the costs of extending and collecting taxes. The fact that the county has another tax levy to cover the costs of collecting taxes does not prevent the retention of interest from being viewed as a “skim-off.” The county’s argument goes to the use of the retained interest moneys, whereas the objection to the practice is aimed at the manner of the retention. Although the first sentence of the salaries and fees clause proscribes particular usage of fees, it is the final sentence of the clause, barring the practice of basing fees on the levy of taxes, which is at issue here.

The county also maintains that section 280, by requiring distribution of collected taxes within 30 days, alleviates this court’s expressed concern that the county has some control over the time of distribution and gained by a delay in that distribution. However, as the district points out, the preamendment version of section 280 required distribution on the first of every month. (Ill. Rev. Stat. 1979, ch. 120, par. 761.) Thus, the county now has no less control over the time of distribution and no less advantage in delaying distribution than it did under the former statute.

Most important, however, is the fact that the practice which the county seeks to continue, although now under the authority of section 280 rather than section 6.1 of the County Treasurers’ Act, is still the same. It is that practice, rather than section 6.1, of which we disapproved as “functionally a charge based upon the levy and disbursement of taxes.” 107 Ill. App. 3d 409, 415, 437 N.E.2d 923, 929.

The county cites the legislative history of section 280 and urges this court to “give vent” to the legislative intent to avoid the proscription of the salaries and fees clause. The county does not suggest, however, that the legislature intended to halt the county’s practice of retaining interest earned on collected tax moneys of other public entities. While legislative history is relevant to a determination of the meaning of the statute, it cannot change a judicial determination regarding the constitutionality of a governmental practice. Since the practice here was declared unconstitutional, a legislative intent to avoid the proscription of the constitution can be of no avail where the practice remains the same.

Thus, if section 280 is read as the county suggests to authorize the retention of the interest earned on the collected tax revenues of the district up to 30 days, then the statute would be unconstitutional under the salaries and fees clause and could not be a bar to the district’s action.

The district secondly contends that if section 280 is construed to permit the retention of interest in this case, then the statute also violates the equal protection clauses of the Federal and State constitutions (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2). Having already concluded that the county’s reading of section 280 would violate the salaries and fees clause, we find it unnecessary to address a second constitutional challenge. (Haughton v. Haughton (1979), 76 Ill. 2d 439.) Suffice it to say that we have already expressed our opinion that the county’s practice at issue here appears to violate the equal protection clause by allowing counties to receive interest on their collected tax moneys while denying this benefit to other units of local government. (107 Ill. App. 3d 409, 416, 437 N.E.2d 923, 929.) The county’s argument on this appeal does not alter our opinion.

While the district contends that the county’s construction of section 280 would render the statute unconstitutional, it also contends that section 280 may be construed so as not to authorize the proscribed practice of retaining interest earned on other public entities’ tax revenues. A close reading of section 280 reveals that it does not specifically authorize the county’s retention of the interest.

Section 280, prior to November 12,1981, provided:

“Sec. 280. Subject to the provisions of ‘An Act requiring certain custodians of public moneys to file and publish statements of the receipts and disbursements thereof,’ approved June 24, 1919, as heretofore or hereafter amended, and ‘An Act in relation to the preparation, publication and filing of annual accounts of certain municipalities, the payment of tax monies to treasurers of certain municipalities, and providing penalties for violations thereof,’ approved August 15, 1961, as heretofore or hereafter amended, the county collector shall on the first day of June and the first day of each and every month thereafter, pay over to the other proper authorities or persons the amounts in his hands and payable to them as taxes, not theretofore paid over: Provided, that in counties under township organization where no town collectors are elected, no fees or commissions shall be deducted by the county collector from taxes collected by him and heretofore authorized to be collected by town collectors, and all such taxes collected shall be paid over in full to the proper authorities or persons authorized by law to receive the same.
Any county collector who wilfully fails to pay over the amount of taxes due and payable, at the time or times required by this Section, shall be subject as a penalty for such failure to pay a sum of money equal to the interest on such amount at the rate of one-tenth of one (1) per cent per day from the time such amount becomes due and payable until the same is paid; and the sureties upon the official bond of such collector shall be liable for the payment of such penalty. The penalty in this Section provided may be recovered in a civil action against such collector and his sureties aforesaid, in the name of the People of the State of Illinois, in any court of competent jurisdiction, and the amount of the penalty, when recovered, shall be paid into the county treasury.” Ill. Rev. Stat. 1979, ch. 120, par. 761.

When compared to the amended section 280, it becomes apparent that certain changes are provided for the distribution of collected tax revenues in counties with a population of less than 3,000,000. Instead of distribution the first of every month, distribution is to be “within 30 days after due date and at 30-day intervals thereafter.” The amended version drops the proviso that no fees or commissions may be deducted from the collected taxes by a county in a county under township organization. Instead, the new section 280 requires that collected taxes must be invested pursuant to statute and interest accruing on those investments, if held more than 30 days, must be distributed with the principal. No specific mention is made of interest on investments earned within 30 days. It is the county’s contention that section 280 now authorizes its retention of that short-term interest.

As in Wood Dale I, this court is faced with an issue of statutory construction where the basic rule that the legislative intent should be given effect, primarily from the language of the statute, is of limited aid. (107 Ill. App. 3d 409, 411, 437 N.E.2d 923, 926, citing Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203.) Certain rules of construction favor the county’s suggested reading. First, it is normally presumed that an amendment is intended to change the law as it formally existed, rather than to reaffirm it. (Saltiel v. Olsen (1979), 77 Ill. 2d 23.) Here, the deletion of the proviso against fees and the addition of the provision for distribution of long-term interest might imply a change: retention of short-term interest as a fee. Second, under the rule of expressio unius est exlusio alterius, when a statute enumerates certain things, that enumeration implies the exclusion of all other things, although there be no negative words of prohibition. (Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 440 N.E.2d 910.) Here, the application of this principle might infer the implicit authority to retain short-term interest from the explicit mandate to distribute long-term interest. Finally, where statutory language is ambiguous, it is appropriate to examine the legislative history. (People v. Boykin (1983), 94 Ill. 2d 138.) The county cites senatorial remarks indicating an understanding that the amended section 280 would permit counties to keep the first 30-days’ interest.

However, other rules of statutory construction militate in favor of the district’s reading of section 280. This court previously observed that the Investment of Public Funds Act (Ill. Rev. Stat. 1981, ch. 85, pars. 901 through 906) and section 6.1 of the County Treasurers’ Act (Ill. Rev. Stat. 1981, ch. 36, par. 22.1) appear to be in pari materia because they purport to deal with the same subject matter. (107 Ill. App. 3d 409, 411, 437 N.E.2d 923, 926.) Similarly, it is apparent that section 280 is in pari materia with the Investment of Public Funds Act. Statutes in pari materia should be construed together so that they may be given harmonious effect. (People v. Scheib (1979), 76 Ill. 2d 244; United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 380 N.E.2d 909.) Since it has already been held that the Investment of Public Funds Act entitles the district to the claimed interest (Wood Dale I, 107 Ill. App. 3d 409, 417, 437 N.E.2d 923, 930), a harmonious construction of section 280 would not infer authorization to retain short-term interest from that statute’s silence.

Most importantly, where a statute is subject to two constructions, one of which may render it unconstitutional, courts are bound to adopt the construction which avoids the constitutional problem. (Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631; People v. Ortega (1982), 106 Ill. App. 3d 1018, 436 N.E.2d 606.) This rule was relied upon by this court in Wood Dale I to construe the County Treasurers’ Act as not authorizing the county’s retention of interest on noncounty tax funds. (107 Ill. App. 3d 409, 412-17, 437 N.E.2d 923, 927-30.) Because section 280 would be unconstitutional if construed to authorize the retention of the interest earned on other public entities’ collected tax revenues and because the plain language of that statue does not specifically authorize that practice, we decline to construe section 280 to authorize the challenged retention of interest.

Thus, we hold that section 280 does not prospectively bar the district’s claim and the trial court erred in granting summary judgment for the county.

RETROSPECTIVE RELIEF

The district next contends that the trial court erred in refusing to award it retrospective relief (i.e., the return to the district of the interest money retained by the county from October 1, 1972, through the conclusion of this litigation). The complaint prayed for an accounting for that period and for other relief. The county responds that the trial court acted within its discretion in denying retrospective relief.

The district cites numerous cases for the proposition that the relief sought here should be granted while the county relies exclusively on Flynn v. Kucharski (1971), 49 Ill. 2d 7. These cases deal with equitable relief, and Flynn held that a trial court is endowed with discretion in granting such relief as equity may require. (49 Ill. 2d 7, 11.) In Flynn, after the trial court’s decree declaring a statute invalid insofar as is permitted the defendant township collectors to retain a commission was affirmed by the supreme court, the trial court had ordered the township to turn over only the commission moneys not already expended on the date of the original decree. The supreme court affirmed the trial court’s refusal to require the township to repay moneys actually expended before that date. The supreme court noted that the action was one affecting public entities pertaining to the application and division of tax revenue, and not one in which a fixed pecuniary harm had befallen an ascertained individual. The court agreed that it was proper not to impose the burden of repayment on the townships in a case where they had relied upon the validity of the statute authorizing commissions for nearly 100 years. In the cases cited by the district, on the other hand, retrospective relief was held to be appropriate. (Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164; Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 85 N.E.2d 473; Trico Community Unit School District No. 176 v. Steeleville Community Unit School District No. 138 (1959), 22 Ill. App. 2d 39, 159 N.E.2d 507; Board of Trustees v. Webb (1974), 24 Ill. App. 3d 183, 321 N.E.2d 127; Century Community Unit School District No. 100 v. McClellan (1975), 27 Ill. App. 3d 255, 327 N.E.2d 32; County of Lake v. X-Po Security Police Service, Inc. (1975), 27 Ill. App. 3d 750, 327 N.E.2d 96; Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 411 N.E.2d 1067; Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. Ill (1981), 96 Ill. App. 3d 1062, 421 N.E.2d 1087.) While the specific remedy approved in most of these cases is a constructive trust, the principle for which they all stand is that restitutionary relief is proper where a party has received money which belongs to another under such circumstances that in equity and good conscience the party should not retain it. See, e.g., Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95, 85 N.E.2d 473, 479; Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111 (1981), 96 Ill. App. 3d 1062, 1066-67, 421 N.E.2d 1087, 1091.

This principle was not necessarily contradicted by Flynn, which rather should be read as holding that equity and good conscience did not require repayment under the circumstances of that case. The circumstances of the most explicit concern in Flynn was the fact that, because the case involved tax distribution between public entities, it did not involve pecuniary harm to ascertained individuals. (Flynn v. Kucharski (1971), 49 Ill. 2d 7, 11.) The supreme court in DeBruyn v. Elrod (1981), 84 DI. 2d 128, 137, distinguished Flynn on this basis in awarding reimbursement. However, the same cannot be done here where the parties are public entities and the issue is distribution of tax moneys. That this factor alone need not bar retrospective recovery here is demonstrated by the cases cited by the district. See, e.g., Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164; Century Community Unit School District No. 100 v. McClellan (1975), 27 Ill. App. 3d 255, 327 N.E.2d 32; Board of Trustees v. Webb (1974), 24 Ill. App. 3d 183, 321 N.E.2d 127.

The district argues that several factors distinguish Flynn from the present case. It most strongly emphasizes that a breach of fiduciary duty was involved here and in the cases it cites while none was present in Flynn. However, the township collectors in Flynn who retained the unconstitutional commissions were public officials. As such, they owed a fiduciary duty to the taxpayer-plaintiffs. (See People v. Savaiano (1976), 66 Ill. 2d 7.) While this is a different fiduciary relationship than that between a tax collector and public taxing bodies, noted in City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203, and present here, the distinction that the district argues is not apparent.

The district also attempts to distinguish Flynn in that the unconstitutional statutory provision under which the townships collected commissions in that case had been relied upon for nearly 100 years without challenge. (Flynn v. Kucharski (1971), 49 Ill. 2d 7, 11.) Furthermore, there was no statute in Flynn prescribing a different practice. By contrast, in the present case, the county’s retention of interest began in 1972, one year after the effective date of the salaries and fees clause of the 1970 Illinois Constitution and nine years before the initiation of this litigation. As discussed, the provisions of the Investment of Public Funds Act (Ill. Rev. Stat. 1981, ch. 85, pars. 901, 902) require pro rata distribution by the county of the interest earned on noncounty tax funds. Most importantly, a prior case has made it clear that the salaries and fees clause prohibits counties from collecting fees based on tax revenues collected on behalf of other units of local government. City of Joliet v. Bosworth (1976), 64 Ill. 2d 516.

In sum, then, Flynn presents a set of facts similar to but distinct from the present case. The same could be said for each of the cases cited by the district. Because we share the concern of the Flynn court that a heavy burden should not be imposed by retroactively altering a tax distribution scheme merely between public entities, we believe that the trial court did not abuse its discretion in declining to order the return of the wrongfully retained interest moneys from the inception of the practice. On the other hand, since the filing of the supreme court’s opinion in City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, the county should have in good conscience been aware that its practice was constitutionally infirm. Equity, in our view, does not permit the county’s retention of wrongfully collected moneys from October 1, 1976, the filing date of Bosworth. We therefore reverse the trial court’s denial of retrospective relief only to that extent.

CLASS CERTIFICATION AND PRELIMINARY INJUNCTION

The district finally contends that the trial court erred in denying its motions for class certification and preliminary injunctive relief. These motions were denied on the basis that the summary judgment decision rendered them moot. Because of our disposition, these issues cannot now be considered moot and the trial court should give them full consideration upon remand.

Accordingly, we reverse the summary judgment of the circuit court of Du Page County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE VAN DEUSEN

text:
    McGINNIS PLUMBING COMPANY, INC., Plaintiff-Appellee, v. ZEUS DEVELOPMENT- CORPORATION, Defendant—(Intercounty Title Company of Illinois, Defendant-Appellant).
    Second District
    No. 82—1037
    Opinion filed December 12, 1983.
    Rehearing denied January 9, 1984.

      Russell R. Custer, Jr., and David J. Kendle, both of Lillig, Kemp & Thorsness, of Oak Brook, for appellant.
    Timpone & Rickelman, of Chicago, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Intercounty Title Company of Illinois (Intercounty) appeals from a trial court order entered December 1, 1982, requiring that certain property of Zeus Development Corporation (Zeus) in the possession of Intercounty be turned over to plaintiff, McGinnis Plumbing Company, Inc. (McGinnis).

On September 23, 1982, McGinnis filed a complaint against Zeus for the latter’s failure to pay $5,851 for labor and materials for plumbing work done on the properties owned by Zeus. On that same day, McGinnis filed its complaint, bond and affidavit, for the issuance of an order of attachment against Intercounty as garnishee alleging them to be in possession of $5,851 belonging to Zeus. (Ill. Rev. Stat. 1981, ch. 110, pars. 4 — 130, 4 — 107, 4 — 104, 4 — 110.) An order of attachment issued.

On October 14, 1982, all parties appeared. Intercounty filed a special and limited appearance and reported to the trial court that it had $5,331.54 retained for Zeus in four escrow accounts. These funds represented interest resulting from investments by Intercounty on a principal deposit of $54,000 by Zeus. The attorney for Intercounty stated that he had been instructed by his client that the $5,331.54 could be available for this matter but that Mr. Leonard, the president of Zeus, appearing pro se, disagreed. Mr. Leonard stated that he believed that the funds were not available because the interest was to accrue in order to maintain the balance at the required level for their title indemnity agreements and that the account was $11,000 short for that purpose.

The court then gave Zeus 13 days to answer or otherwise plead to the attachment order and to the complaint and directed Intercounty “to continue to hold the sum of $5,331 as property of Zeus Development Corporation” and not to disburse it to anyone or use it for any other purpose until further order of the court.

On December 1, 1982, pursuant to notice, McGinnis filed its motion for an order of default and for entry of judgment in favor of the plaintiff and against Zeus Development Corporation in the sum of $5,851 plus costs of suit. McGinnis also moved for an order directing the garnishee-defendant, Intercounty, to turn over to plaintiff the sum of $5,331 in partial satisfaction of said judgment. On the same date, Inter-county filed a motion pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619, formerly section 48 of the Civil Practice Act), to dismiss the attachment action of McGinnis. The basis of the motion was that the trial court lacked subject matter jurisdiction.

On December 1, 1982, the court considered the arguments of counsel of the respective parties on both motions and thereupon entered the order from which Intercounty now appeals. That order did provide for an order of default and judgment in the sum of $5,851 in favor of McGinnis Plumbing Company and against the defendant Zeus. It further ordered the garnishee-defendant, Intercounty, to forthwith turn over to the plaintiff McGinnis Plumbing Company, Inc., the sum of $5,331. Finally the order recited that “the motion of Inter-County Title Company to Dismiss under sec. 48 be and is hereby denied.”

In addition to its motion to dismiss for lack of subject matter jurisdiction, Intercounty did not file any other pleading at the trial court level other than a reply to McGinnis’ petition for a rule to show cause for not complying with the trial court’s turn over order of December 1, 1982. In particular we note from our review of the record that at no time at the trial court level did Intercounty seek to assert a claim to the property attached by filing a petition supported by affidavit pursuant to section 4 — 134 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 4-134).

On appeal, Intercounty continues to assert that the trial court lacked subject matter jurisdiction to issue the order of attachment and therefore the order of December 1, 1982, ordering Intercounty to pay $5,331 to McGinnis in partial satisfaction of the judgment against Zeus, was void. Intercounty also raises two additional issues on appeal. First, it asserts that the matter should be remanded to the trial court so that its claim to the property in question might be determined pursuant to section 4 — 134 of the Code of Civil Procedure. Second, it asserts that the title escrow agreement between Zeus and Intercounty makes clear that the property in question was in the custody and control of Inter-county and not subject to attachment to satisfy McGinnis’ judgment against Zeus.

The short answer to these latter two contentions is that they were not raised at the trial court level and were thereby waived. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) Intercounty’s argument that it was not given an opportunity to assert such claims at the trial court level is without merit. The record discloses that Inter-county never attempted or sought leave to file an answer raising any affirmative defenses or leave to file a petition pursuant to section 4— 134 of the Code of Civil Procedure either before or after the trial court entered the order of December 1, 1982. In the only other pleading filed by Intercounty, namely its reply to the motion for a rule to show cause, it limited its defense to the assertion that the court lacked subject matter jurisdiction.

The only viable issue which plaintiff can raise on this appeal is whether the trial court erred in denying its motion to dismiss for lack of subject matter jurisdiction. Intercounty contends that the trial court lacked subject matter jurisdiction because McGinnis failed to comply with all of the essential requirements of the attachment statute, in particular paragraph 9 of section 4 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 4 — 101(9)). Citing Martin v. Schillo (1945), 389 Ill. 607, 610, cert, denied (1945), 325 U.S. 880, 89 L. Ed. 1996, 65 S. Ct. 1572, and Rabbitt v. Frank C. Weber & Co. (1921), 297 Ill. 491, 497, Intercounty asserts that attachment proceedings are statutory actions in derogation of common law, and therefore the affidavit required by the statute for the order of attachment must meet all the essential requirements of the statute to give the court jurisdiction of the subject matter. Intercounty maintains that the allegations of the McGinnis affidavit lack certainty or a writing signed by the debtor containing statements constituting the alleged fraud so that the affidavit fails to satisfy the requirements of paragraph 9 of section 4 — 101 of the Code of Civil Procedure for the issuance of the attachment order. Therefore, such issuance on September 23, 1982, was void as was the subsequent order of December 1, 1982, directing Intercounty to turn over certain of the funds in question to Zeus.

Prior to 1964 an attachment proceeding was a special statutory proceeding, and, hence, jurisdiction was dependent upon strict compliance with the statute (Martin v. Schillo (1945), 389 Ill. 607, 610, cert, denied (1945), 325 U.S. 880, 89 L. Ed. 1996, 65 S. Ct. 1572). Prior to the adoption of the Judicial Article of 1962, effective January 1, 1964, the trial court’s jurisdiction over special statutory proceedings not recognized at common law was derived from such authority as was granted by the legislature. (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1136.) The Judicial Article of 1962 and the Illinois Constitution of 1970 changed all of that. The circuit court now derives its jurisdiction directly from the Constitution and not from any statute or pleading. (People v. Valdez (1980), 79 Ill. 2d 74, 84-85; People v. Gilmore (1976), 63 Ill. 2d 23, 26.) “No longer do we seek statutory justification for the exercise of jurisdiction; rather the inquiry must be whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.” In re Estate of Mears (1982), 110 Ill. App. 3d 1133,1138.

There is no question but that the controversy between the parties over the funds held by Intercounty constitutes a justiciable controversy. While, for example, a time limitation for the bringing of a statutory action constitutes a condition precedent to jurisdiction (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1138 (will contest petition must be filed within statutorily prescribed time period); accord, Robinson v. First State Bank (1983), 97 Ill. 2d 174, 183), the deficiencies in the affidavit of which Intercounty complains cannot be considered as statutory conditions precedent to jurisdiction. The attachment statute itself provides that no order of attachment shall be vacated on account of any insufficiency of the original affidavit without giving plaintiff or his agent an opportunity to file a legally sufficient affidavit, and if such is done, the cause shall proceed as if such proceeding had originally been sufficient. (Ill. Rev. Stat. 1981, ch. 110, par. 4 — 132.) The attachment act also provides that the act shall be construed in all courts in the most liberal manner for the detection of fraud. Ill. Rev. Stat. 1981, ch. 110, par. 4 — 102.

Even assuming arguendo that the affidavit of McGinnis was defective in the manner alleged by Intercounty, such deficiency did not constitute a condition precedent to the court’s jurisdiction. We conclude that the trial court had subject-matter jurisdiction, and the trial court correctly denied Inter county’s motion to dismiss for lack thereof. The judgment order of the trial court entered December 1, 1982, is affirmed.

Affirmed.

LINDE ERG and REINHARD, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles I. Holmes, Defendant-Appellant.
    (No. 11741;
    Fourth District
    May 31, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted upon his plea of guilty to armed robbery. Sentence of eight to twenty years was imposed. He appeals.

Upon January 31, 1969, the date of the offense, defendant was 17 years of age. It is urged that the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 2) is unconstitutional, and that the cause must be reversed for the reason that defendant was prosecuted as an adult rather than as a juvenile.

In People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189, this Court held that the Juvenile Court Act was unconstitutional as to those offenses committed after July 1, 1971, the effective date of the Constitution of 1970, and before the effective date of the Act of Corrections, January 1, 1973. (See People v. Lockett (1973), 11 Ill.App.3d 391.) Upon the date of this offense, such issue is controlled by People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656.

It is also contended that the court erred in “refusing defendant’s request to withdraw his plea of guilty”. It is noted that the proposition is not framed in the context of a refusal to consider a motion to withdraw his plea or to rule on such motion.

Defendant was arraigned on February 7, 1969. On March 19th, defendant appeared in open court with counsel and upon admonition waived trial by jury. On April 14th, his trial date, defendant through his counsel asked to withdraw his plea of not guilty. No issues are raised upon the taking of the plea. A petition for probation was filed and upon counsel’s request, defendant was released on his own recognizance. He did not appear at his probation hearing on April 24, 1969, and a bench warrant issued. More than two years later, defendant was returned to the court on a writ of habeas corpus directed to the Illinois State Penitentiary where defendant was serving a sentence upon a conviction for murder.

Pursuant to the writ of habeas corpus, defendant was brought before the court who advised defendant that the petition for probation was pending and asked whether or not he was represented. The defendant said:

“Excuse me. At the time I was a minor when I entered that plea of guilty. I would like to withdraw that plea and be represented by counsel.”

The court indicated that the matter of probation was pending and again asked if defendant had a lawyer. In response to the court’s suggestion of appointing the public defender, the defendant objected, saying:

“I feel there would be a plot and conspiracy to get a conviction on this charge.”

The court noted that defendant then stood convicted of the charge. The latter responded:

“I’m withdrawing the plea. It’s not a conviction. I entered a plea on the full recommendation of my counsel.”

The court did not respond, but proceeded with the appointment of counsel.

After the appointment of counsel no motion was made and no suggestion appears concerning the withdrawal of the plea. Hearing on the pending petition for probation was held on September 24, 1971. Upon denial of the petition for probation, evidence in aggravation and mitigation was waived by the parties. In arguing the disposition, the State’s Attorney recommended a sentence of 10 to 20 years to run with the concurrent murder sentence. Defendant’s counsel recommended a 5 to 10 year sentence.

The granting or denial of a motion to withdraw a plea of guilty is a matter for the exercise of judicial discretion. It is properly allowed upon a showing of a misapprehension of the facts or of the law, of any misrepresentation by a person having apparent authority, or where there is a reasonable doubt of guilt or a defense worthy of consideration. People v. McKirdie, 45 Ill.2d 300, 259 N.E.2d 16, People v. Morreale, 412 Ill. 528, 107 N.E.2d 721.

It is argued that the court did not “entertain” the “request” to withdraw the plea. At that time defendant did not have counsel to represent him. The withdrawal of a plea, is a critical stage, and should be made and disposed of by orderly proceedings. Defendant has the burden of establishing the basis in fact for the exercise of judicial discretion. People v. Olden, 130 Ill.App.2d 773, 266 N.E.2d 404, People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233.

Upon the occasion at issue, the demands of the defendant made before the court did not state grounds which suggested a basis for the withdrawal of a plea. Depending upon the ultimate outcome of the case, any action of the court denying or granting the so-called “request” would support a claim that defendant was without counsel at a critical point of the proceedings.

No complaint has been made of the competency of counsel. Upon this record, it is patently incorrect to argue that there was no opportunity to present evidence upon the issue of whether the court should permit the withdrawal of the plea of guilty.

The fact that upon defendant’s return to the court for completion of the- pending proceedings, his expectations for the granting of probation were minimal is not a sufficient basis for a motion to withdraw a plea of guilty upon which conviction has been entered. People v. Roberts, 101 Ill.App.2d 86, 242 N.E.2d 15.

The judgment of the circuit court is affirmed.

Affirmed.

CRAVEN, P. J„ and SMITH, concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph W. Perkins, Defendant-Appellant.
    (No. 11819;
    Fourth District
    May 31, 1973.
    James R. Streicker, of Defender Project, of Chicago, (Harvey M. Grossman, Senior Law Student, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (James R. Coryell, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the Court.

On April 15, 1970, a jury returned a verdict finding defendant-appellant Joseph W. Perkins guilty of the crime of burglary. Trial was had in the Circuit Court of Macon County. He was placed on probation for a period of two years, the order being entered on April 29, 1970. Among other conditions imposed was the specific order that defendant “* * # be at 9 9 9 residence between the hours of 11:00 P.M., and sunrise, each and every night, unless he has the consent of the probation officer to do otherwise.”

On December 9, 1971, the probation officer filed a Report of Violation of Probation setting forth that the Order of Probation was conditioned on the aforesaid curfew restrictions and upon defendant’s refraining from violation of the criminal laws of the State of Illinois. The report specifically charged that on December 5, 1971, defendant had committed the offenses of Burglary and Aggravated Battery, and that on the same date he had violated the curfew provisions of the Order by being away from his residence at 5:02 A.M. Counsel was appointed for defendant. Defendant admitted the curfew violation, but asked for hearing on the other charges of the Report of Violation.

Officer Roland Butler of the Decatur Police Department testified that on the morning of December 5, 1971, at about 5:00 A.M., while patroling in his squad car, observed a National Van Lines furniture van parked on Williams Street with the rear doors opened. There was a 1957 white Ford parked behind it. Butler stopped and observed furniture pads in the back seat of the Ford. He then observed an individual some two blocks away who appeared to be watching him and who suddenly started running west on Williams Street. Butler pursued in his squad car and while chasing the suspect sent a radio message giving a description of the suspect and the direction in which he was heading. When he first observed the suspect he saw the upper half of his face “* * 9 from his nose up”. He testified that he had occasion to observe the rest of the suspect’s person as he was chasing him and positively identified the defendant during the hearing. He testified that the man who fled had on a dark jacket, dark trousers and no hat. He was unable to apprehend the suspect and returned to the van and the white Ford. At this juncture, Officer Steve Puckett of the Decatur Police Department joined Butler. While they were checking the car out, the defendant approached and stated that the white Ford belonged to him and gave the officers his name. Butler testified that at this moment he was not too sure that the defendant was the suspect whom he had previously pursued, but noticed that the defendant’s hair was cut the same way as the person whom he had initially seen. In response to questioning, the defendant stated that his car had been loaned to a Robert Lewis. Later he said he had loaned the car to a Robert Williams. He told the officers that he did not know where this person lived. Butler had noted that the suspect had worn a dark jacket which length was between the hip and knee, dark trousers and no hat. Officer Puckett then called Butler’s attention to the heel of a shoe lying on the ground behind the van and in front of the white Ford. The defendant had a heel missing on his right shoe. It appeared to Butler that the heel would match defendant’s shoe and informed Perkins he was under arrest for investigation of burglary. Perkins started to run, hit Officer Puckett in the chest and knocked him against the car. Puckett and Butler wrestled the defendant to the ground and were assisted by Leroy Taylor, the owner of the van, in subduing the defendant and in placing him in handcuffs. Subsequently the officers determined that the heel was the heel of defendant’s shoe. The license on the defendant’s car was found to have been issued to a 1960 vehicle owned by one Lugene Walter. Access to the van had been gained by unscrewing a locking swivel on the rear doors. In defendant’s car were 29 furniture pads and a fire extinguisher which had been removed from the van and laying beside the white Ford was a lug wrench which had been taken from the van.

Officer Puckett’s testimony as to occurrences after his arrival at the scene corroborated the testimony of Butler.

The defendant testified in his own behalf; said that he had loaned the car to one Robert Lewis Williams at about 10:30 on the preceding night. Defendant further testified that he was in his own residence between 11:00 o’clock of the preceding night and 4:45 A.M., on the morning of December 5, 1971. He testified that he had fallen asleep on the couch, awakened at 4:45 A.M., and went out to see if he could find his car. He did not know where Robert Lewis Williams presently lived stating, “He lives east, but I don’t know the exact address.” Williams was not called as a witness. He said that his striking of Officer Puckett was accidental.

If identification testimony is vague, doubtful and uncertain, it cannot support a conviction. People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232; People v. Coulson, 13 Ill.2d 290, 149 N.E.2d 96.

In People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662 the defendant was convicted of robbing a dry cleaning store. The attendant phoned the police, described the defendant as being tall, thin, brown-skinned and wearing a hat and jacket. She later identified the defendant who was wearing a hat and jacket. The police were led to defendant by the attendant’s son. The defendant was found some 15 to 16 blocks from the scene of the robbery. The attendant identified the defendant by saying that she recognized the jacket he was wearing. The defendant had an alibi supported by his mother. The court reversed the defendant’s conviction because the person who had hailed the defendant did not testify. The proceeds of the robbery were not found on defendant’s person and the attendant was unable to identify the defendant’s face. Kincy, supra, is distinguishable because of the circumstantial evidence clearly pointing to the defendant’s commission of the crime of burglary.

The State was required to establish defendant’s commission of the burglary by a preponderance of the evidence. (People v. Crowell, 53 Ill.2d 447, 292 N.E.2d 721.) We agree that Officer Puckett’s identification of defendant, if uncorroborated by other facts and circumstances, would have been too uncertain to support the finding. Here there is convincing corroborative evidence. While evidence of flight raises no legal presumption of guilt, it is a circumstance which may be considered in determining guilt. (People v. Reed, 103 Ill.App.2d 342, 243 N.E.2d 628.) Defendant’s presence at the site of the burglary is circumstantially established by tire location of the heel of his shoe. His car was there, and it contained the items of stolen property. He was wearing dark trousers, and had a haircut such as the individual initially observed and pursued by Puckett. The evidence is sufficient to establish, by a preponderance, defendant’s commission of the burglary. The evidence here was not sufficient to establish that defendant was guilty of aggravated battery since there was no proof of bodily harm inflicted on either Puckett or Butler. There is sufficient evidence to support a finding of the lesser included offense of battery, though the trial judge made no such finding. As we have previously noted, the defendant admitted the curfew violation. The court did not err in revoking defendant’s probation.

Defendant also urges that his sentence of 3 to 10 years is excessive and that the trial court erroneously took into consideration the act leading to revocation in imposing sentence on defendant’s original conviction.

We have examined the record and find that it does not support this contention. The sentence imposed is well within the statutory limits; the trial judge observed that he did not feel “* * * that any less sentence would not accomplish rehabilitation, would not accomplish correction.”

Judgment affirmed.

CRAVEN, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Smith, Defendant-Appellant.
    (No. 11876;
    Fourth District
    May 31, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    No appearance for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the Court:

On April 10, 1972, the State’s Attorney of Livingston County filed a petition in the Circuit Court of Livingston County, which recited that the defendant-appellant Charles Smith was incarcerated in the penitentiary at Pontiac, Illinois. The petition further alleged that the Warden of the penitentiary had been served with the Governor’s Warrant for Extradition to the State of Ohio and requesting that a Writ of Habeas Corpus issue, directing the Warden to produce defendant “* * * for hearing on the extradition matter herein.” Pursuant to the Court’s order a “Writ of Habeas Corpus to Testify” was issued, and defendant was also ordered to answer the Warrant.

On April 11, 1972, counsel was appointed to represent defendant. Copies of Ohio indictments charging him with forgery and fraudulent use of credit cards in Cuyahoga County, Ohio, together with a prosecuting attorney’s request to the Governor of Ohio for defendant’s rendition were admitted into evidence. No request from the Governor of Ohio for defendant’s rendition was produced or entered into the record.

On April 18, 1972, a further hearing was held. The warrant issued by the Governor of the State of Illinois was received in evidence without objection. The warrant recites that “The Governor of the State of Ohio demands of me the arrest and delivery of Charles Smith as a fugitive from justice, and produced and laid before me a copy of an Indictment, Warrant and Executive Agreement, certified as authentic by the said Governor and duly authenticated, and charging the said Charles Smith with having committed on the 22d day of November, A.D. 1969, and January 22, 1970, in the County of Cuyahoga, in the State of Ohio, the crime of Forgery with Count for Uttering (2913.01, R.C.), and Fraudulent Use of Credit Card (2907.201, R.C.), which said Governor certifies to be a crime under the laws of said State of Ohio * # John Siffin, a police officer from the Cleveland, Ohio, police department testified on behalf of the petitioner. He positively identified defendant as the individual named in the Ohio indictments. The defendant offered no evidence.

The trial judge found defendant to be the individual charged in the Ohio indictments and ordered him extradited to Ohio. Defendant requested an appeal, the order of extradition was stayed pending appeal, and the Illinois Defender Project was appointed counsel on appeal.

Appellate counsel have moved to withdraw as defendant’s counsel on appeal and accompanied the motion with a brief in conformity with Anders v. State of California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. The record establishes proof of service of the motion and brief upon the defendant. The motion was continued to afford defendant an opportunity to file additional suggestions. Defendant responded by means of a letter, the contents of which we have considered and find to be unrelated in any meritorious or legal sense to the issues here presented. In discharge of our responsibility we have examined the record on appeal.

Chapter 60, section 24-27, Ill. Rev. Stat. 1971, provides that upon issuance of the Governor’s Warrant the defendant should have been arrested and forthwith brought before a judge of the Circuit Court of the County in which the arrest took place. Under the statute the defendant, when brought before the court, shall be afforded counsel and be given an opportunity to challenge his arrest by writ of habeas corpus. Defendant did not challenge his arrest, as provided by statute, by petitioning for writ of habeas corpus. However, counsel and the court proceeded on the writ of habeas corpus ad testificandum precisely as though defendant had in fact followed the statutory procedure, and at the hearings held, inquired into the very questions which could have been raised by defendant had he filed his petition. We perceive no error in this circumstance.

The only matters which may be examined on writ of habeas corpus in extradition cases are: (1) whether the accused is the person named in the warrant; (2) whether he is substantially charged with a crime in the demanding State; (3) whether he is a fugitive from justice and (4) whether the documents are regular in form. People ex rel. Levin v. Ogilvie, 36 Ill.2d 566, 224 N.E.2d 247; People ex rel. Goldstein v. Babb, 4 Ill.2d 483, 123 N.E.2d 639, cert. denied, 349 U.S. 928.

The evidence clearly establishes that defendant is the individual named in the Ohio indictments and in the documents involved in the extradition proceedings. Docket entries in the Ohio cases reveal that defendant forfeited appearance bond in both cases and is consequently a fugitive from justice. The Ohio indictments substantially charge defendant with offenses under Ohio statutes.

The record does not contain a request from the Governor of Ohio requesting defendant’s rendition, and such a request is an essential prerequisite to the issuance of a warrant by the Governor of Illinois. (People ex rel. Willis v. Mulcahy, 392 Ill. 411, 64 N.E.2d 860.) Where this requisition is lacking in the record but the recitals in the warrant issued in the asylum state are uncontradicted by evidence, such recitals are accepted as true. (People ex rel. Flowers v. Gruenewald 390 Ill. 79, 60 N.E.2d 225.) The recitals in the warrant of the Governor of Illinois established a prima facie case that he had before him a proper request for rendition from the Governor of Ohio. People ex rel. Willis v. Mulcahy, 392 Ill. 411, 64 N.E.2d 860.

We agree that this record discloses no justiciable issue for review and that the appeal is without merit. Accordingly the motion of the Illinois Defender Project to withdraw as defendant’s counsel is allowed and the judgment of the trial court is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.