text:
    Park, Benzinger & Co., Inc., Plaintiff-Appellee, v. Foremost Sales Promotions, Inc., Defendant-Appellant.
    (No. 57056;
    First District (5th Division) —
    June 29, 1973.
    Morton Siegel, of Chicago, for appellant.
    Allen H. Schultz, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Park, Benzinger & Co., Inc., a New York corporation, filed a verified complaint for preliminary and permanent injunctions against Foremost Sales Promotions, Inc., alleging that defendant violated the Illinois Fair Trade Act. (Ill. Rev. Stat. 1969, ch. 121½, secs. 188-191.) Pursuant to proceedings which are detailed below, the trial court issued an injunction.

On appeal, defendants contend: (1) that plaintiff was doing business in Illinois through an agent without being qualified as a foreign corporation, and (2) that the decree of injunction is invalid because it lacked specificity.

Plaintiff’s verified complaint alleged that plaintiff was a New York corporation “engaged in business as a distributor of various alcoholic beverages ® * *” which it sells to licensed wholesalers in Illinois; that except for railroads it does not sell its products directly to retailers; that it expends large sums of money in Chicago and in Illinois to maintain its good will; that it leases and uses large offices in conducting its business although the complaint does not specify their location; and that in Illinois wholesalers also lease and occupy large offices and warehouses. Plaintiff’s complaint further alleged that defendant’s actions caused injury to the market of “products sold by plaintiff” (emphasis added) in Chicago, Cook County, and elsewhere in Illinois. A fair trade contract attached to the complaint recited that plaintiff was “a New York corporation, doing business in Illinois.”

Defendant filed a verified motion to dismiss the complaint alleging that plaintiff, a New York corporation, was doing business in Illinois without a license and therefore was not entitled to sue in the state, citing various allegations in the complaint in support of its position, and alleging that Mel Sulkin who verified the complaint was plaintiffs Illinois agent and “Central Division Manager” and that he had executed plaintiff’s fair trade agreements.

Plaintiff filed a verified motion for “temporary” injunction during the pendency of the suit and also filed a verified reply to defendant’s motion to dismiss together with a memorandum of law and the supporting affidavit of Sulkin. Defendant subsequently filed a motion for summary, judgment together with a supporting affidavit of Irving Robins, president of defendant corporation. Plaintiff replied to the motion for summary judgment and filed a counter-affidavit.

The facts raised in the affidavits and the depositions were basically undisputed. They show that plaintiff is a New York corporation not licensed to do business in Illinois. Plaintiff (1) maintains no Illinois office, leases no Illinois property, and does not fist its name on the door of any office or in the directory of any building in Illinois; (2) maintains no Illinois telephone and is not listed in any Illinois telephone directory; (3) has no Illinois employees; (4) pays no Illinois taxes, and (5) solicits no orders from, has no contact with, and furnishes no promotional materials directly to Illinois retailers. Plaintiff sells its products only to Illinois wholesalers and pays its alleged agent in Illinois, a flat fee for its' services of promoting plaintiff’s brands in Illinois and other states.

The facts indicate that Melmark, Inc., a merchandising and marketing company which represents plaintiff and two other liquor suppliers, is an Illinois corporation, its stock wholly owned by Mel Sulkin with Sulkin and his wife its only officers and directors. Melmark promotes sixty brands, six of which are plaintiffs. It hires “detailmen” who visit local retailers and wholesalers in the course of their duties. It receives monthly compensation from its suppliers for its services and maintains a phone, offices in Illinois, and pays taxes in Illinois.

Mel Sulkin, President of Melmark, Inc., and plaintiff’s “Central Division Manager,” testified on deposition that he executed plaintiff’s fair trade contracts in Illinois, receives a salary from Melmark, Inc., and pays taxes in Illinois. He hires “detailmen” for Melmark in Illinois and other states who might occasionally, as a service, take an order and deliver it to the wholesaler although taking orders is the function of the wholesalers’ salesmen. He further testified that he himself spends most of his time promoting products for Melmark among wholesalers in Illinois and other states.

Don ICarper, “detailman” for Illinois and Director of Marketing for Melmark, Inc., testified on deposition that he is an expert in merchandising. He resides in Illinois, spends most of his time in Illinois and pays taxes in Illinois. His duties involve acquainting retailers with plaintiff’s products, supplying retailers with free promotional materials and services, and making recommendations regarding the placement of plaintiff’s products within a store. He normally spends four days a week visiting local retailers along with a wholesaler’s salesman and one day a week with a wholesaler. He testified that he does not take orders from retailers.

The parties each filed detailed memoranda of law in the trial court regarding the legal issues involved in the case. Upon careful examination of the law and facts, the trial court concluded that Melmark was not plaintiff’s agent and that plaintiff was not doing business in Illinois. Therefore, plaintiff being engaged in interstate rather than intrastate commerce was entitled to sue in Illinois. Upon these determinations, the trial court denied defendant’s motion to dismiss and its motion for summary judgment. When defense counsel stated that defendant would stand on its motions the trial court entered the following injunction:

“[T]hat the defendant * * * its agents and servants and each and every one of them be, and are hereby jointly and severally enjoined and restrained from wilfully and knowingly advertising, offering for sale or selling [plaintiff’s] products including but not limited to [naming one of them] in Illinois at less than the prices
stipulated by plaintiff, from time to time, under the Fair Trade Act of the State of Illinois * 6

Defendant objected to entry of this injunction but stated no grounds, OPINION

Defendant first contends that plaintiff was doing business in Illinois without being qualified as a foreign corporation. Section 102 of the Business Corporation Act (Ill. Rev. Stat. 1971, ch. 32, sec. 157.102) provides that foreign corporations must procure a certificate of authority before transacting business in Illinois. Section 125 of the Act (Ill. Rev. Stat. 1971, ch. 32, sec. 157.125) provides that the failure of such a corporation to secure a certificate will deprive the corporation of the privilege of suing in Illinois courts. The purpose of these provisions is to ensure that those receiving benefits from doing business in Illinois bear their fair share of the expense. These provisions, however, are clearly inapplicable1 to interstate transactions of foreign corporations which are protected from state impediment by the federal constitution. Textile Fabrics Corp. v. Roundtree (1968), 39 Ill.2d 122, 233 N.E.2d 376; Lehigh Cement Co. v. McLean (1910), 245 Ill.326, 92 N.E. 248.

In support of its contention, defendant places great reliance in the case of Eli Lilly & Co. v. Sav-on-Drugs, Inc. (1961), 366 U.S. 276. In Lilly, the United States Supreme Court in a 5-to-4 decision held that an Indiana corporation not licensed to do business in New Jersey was not entitled under New Jersey law to use that state’s courts to enforce its rights under the New Jersey Fair Trade Act where the evidence indicated that at least part of Lilly’s business was done within that state. The evidence showed that Lilly sold its products in interstate commerce to New Jersey wholesalers. However, Lilly (1) maintained an office in New Jersey; (2) had its name on its door and on the building directory in New Jersey; (3) had a telephone and a listing in a New Jersey telephone book; (4) had and paid a secretary for working in the office in New Jersey, and (5) paid a salary to eighteen “detailmen” who spent most of their time in New Jersey. These “detailmen” visited retailers to acquaint them with plaintiffs products, made recommendations to them regarding plaintiffs products, supplied free promotional material, and occasionally would receive orders from the retailers. The court concluded that Lilly’s activities in promoting its business in New Jersey was of an intrastate nature which New Jersey could legitimately license. Justice Harlan filed a special concurring opinion and Justice Douglas filed a dissenting opinion based upon the "drummer” cases.

Defendant contends that the creation of Melmark, Inc. was a subterfuge to permit plaintiff to do business in Illinois and yet avoid the effect of the Eli Lilly decision. The promotional activities of Melmark in Illinois do essentially correspond to those of Lilly in New Jersey in the case cited by defendants; and Melmark’s activities certainly benefited plaintiff. The fact that Sulkin signed plaintiff’s fair trade agreements as plaintiff’s “Central Division Manager” also seems to support defendant’s position. However, these factors alone do not convince us, as they did not convince the trial court, that plaintiff is doing business in intrastate commerce without a certificate of authority. Melmark is an Illinois corporation which pays its fees and taxes in this state. It represents other firms as well as plaintiff, and has autonomy in its actions. The fact that Sulkin may discuss policies with plaintiff does not change the situation. Melmark is an independent contractor. Therefore, since plaintiff has no direct connection with Illinois except through the goods it ships into the state, plaintiff’s transactions in this case are clearly interstate in character and Section 125 of the Business Corporation Act does not deny it the opportunity to enforce its rights through the courts in Illinois.

Defendant secondly contends that the injunction is invalid because it is not specific. This contention is identical to that raised in Paddington Corp. v. Westville Beverage Mart, Inc. 12 Ill.App.3d 555. We have fully examined the cases cited by the parties including Seagram Distillers Corp. v. New Cut Rate Liquors (7th Cir. 1955), 221 F.2d 815. As a result of this examination, we believe that the instant injunction is specific enough and creates no serious difficulties for someone like defendant who is active in the liquor business and therefore knows what products are fair traded. The injunction gives defendant enough information to know what is prohibited.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J., and ENGLISH, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M. E. Stein & Company, Inc., Petitioner-Appellant, v. Eloise Jones, a/k/a Eloise Williams, Respondent-Appellee.
    (No. 58364;
    First District (5th Division) —
    June 29, 1973.
    Allan L. Blair, of Chicago, for appellant.
    Robert C. Power and J. Tobias Dixon, both of Chicago, for appellee.
   PER CURIAM.

ENGLISH, J., took no part.


author: Mr. JUSTICE ENGLISH

text:
    Donald Kirchenberg et al., Plaintiffs-Appellants, v. The Chicago Transit Authority et al., Defendants-Appellees.
    (No. 58482;
    First District (5th Division) —
    June 29, 1973.

      Martin J. Freed and Dean A. Dickie, both of Chicago, for appellants.
    James G. O’Donohue, John Devine, and Norman J. Barry, all of Chicago, for appellees.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

On January 12, 1973, plaintiffs filed both a complaint and an amended complaint by which they sought “a temporary restraining order, preliminary injunction and permanent injunction” to restrain defendants from replacing with diesel busses certain electric trolley busses and from dismantling the supporting electric equipment therefor. On the same day, without notice of record to defendants, plaintiffs presented to the court their written “Motion for Temporary Restraining Order,” which, by order of the same date, was denied. On January 15, plaintiffs filed their notice of appeal from said order.

When briefing was completed, the cause was set for oral argument, and at that time this court indicated to the parties its opinion that the order was not appealable, but that further study would be given to the question, with an opinion to follow.

We are still of the same mind. There can be no question but that the order appealed from is not a final judgment appealable as a matter of right under article VI, section 6 of the Illinois constitution. Appealability must therefore arise, if at all, from the authority lodged in the Supreme Court by the same section to “provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” Rule 307 is the rule which has been adopted by the Supreme Court to accommodate interlocutory appeals to this court as a matter of right. Ill. Rev. Stat. 1971, ch. 110A, par. 307.

If there is any right in plaintiffs to appeal from the order in the instant case, it must be found in subparagraph (a)(1) of Rule 307 which provides for an interlocutory appeal from an order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”

As amended in 1967, the Injunction Act (IH. Rev. Stat. 1971, ch. 69, pars. 1, 3 and 3 — 1), refers to three distinct types of orders: an “injunction” (often referred to in the cases as a “permanent injunction”), a “prehminary injunction” and a “temporary restraining order.” The last was a new breed of order, added by the amendments of 1967, and theretofore without any recognizable counteipart in the case law. That plaintiffs recognized the differences among these three kinds of orders is clear from the prayer of their complaint, quoted in part in the first paragraph of this opinion, in which all three types are referred to separately and expressly. Nor can there be any doubt that plaintiffs meticulously asked the court, not for a preliminary “injunction” — clearly covered as to appealability by Rule 307 — but merely for a “temporary restraining order” the function of which, if entered, would have terminated by the time plaintiffs had filed their brief in this court, and before the time allowed to appellees to file their brief if Rule 307 were to be applicable.

We perceive the purpose of a temporary restraining order to be simply a status quo holding device to enable the court to make orderly arrangement for a hearing on application for a preliminary injunction. The statute itself seems to indicate this, we believe, by its requirement in section 3 — 1 that after issuance of a temporary restraining order, “the motion for a preliminary injunction shall be set down for hearing at the earfiest possible time and takes precedence of all matters except older matters of the same character * * *.”

Returning to the language of Rule 307, we cannot stretch the word “injunction” to cover a temporary restraining order, especiaUy since the rule was amended by the Supreme Court more than two years after the statutory creation of the term in question and, in our opinion, the rule would then have made specific reference thereto if it had been so intended.

In general, and in most all of its particulars, we agree with the opinion of the court in Bohn Aluminum & Brass Co. v. Barker, 3 Ill.App.3d 600, 278 N.E.2d 247.

A temporary restraining order not being appealable, this appeal is dismissed.

Appeal dismissed.

DRUCKER, P. J„ and LORENZ, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Theodis Richmond, Petitioner-Appellant.
    (No. 57112;
    First District (5th Division) —
    June 29, 1973.
    C. Paul Bradley and Kenneth L. Jones, both of Defender Project, of Chicago, (Brian David, Senior Law Student, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

In an amended post-conviction petition filed by appointed counsel for defendant, it was alleged that at the time of his conviction on a plea of guilty, he had been inadequately admonished by the court as to the consequences of his plea. The State filed a motion to dismiss which was allowed, and this appeal followed.

While defendant’s brief in this court raised two points (the first being that the allegations of the petition required an evidentiary hearing), the State responded to the second point only (inadequate admonishment) by filing a confession of error.

Defendant had been indicted for murder, and after a number of conferences with his family, counsel and the court, he pleaded guilty to that charge. The critical part of the court’s statements and questioning of defendant before accepting his plea appears in the record as follows:

“THE COURT: Now, before accepting your plea of guilty, the law requires that I advise you on a plea of guilty to this indictment which charges you with murder, that you may be sent to the penitentiary for a term of years. Upon a finding of guilty on the charge of murder, you may be sent to the penitentiary, if you are over the age of 17 years, you may be sent to the penitentiary for a term of years. It may be any term not less than 14 years and not more than a number of years to be fixed by this court, without any limit. Knowing that, do you still wish to plead guilty to this charge that is before the court?
THE DEFENDANT: Yes.
THE COURT: I previously pointed out that if you are under 17 years of age, that a different type of sentence is imposed in that type of case before this court. You will be sentenced to the Illinois Youth Commission if the facts and the proof in this case show that you are less than 17 years of age, do you understand that?
THE DEFENDANT: Yes.”

It was stipulated that defendant was 16 years old. The plea of guilty was accepted, defendant was found guilty of voluntary manslaughter, judgment was entered, and on March 27, 1967, defendant was sentenced to be committed to the Illinois Youth Commission.

On July 31, 1968, on the petition of the Youth Commission, defendant again appeared in court, and after a hearing in aggravation and mitigation relating primarily to his conduct at the Commission’s Sheridan institution, defendant was sentenced to the penitentiary for a term of three to twelve years on the previous year’s judgment finding him guilty of voluntary manslaughter.

The sentence and transfer to the penitentiary are alleged not to have been in the contemplation of defendant at the time he pleaded guilty, it having been his belief that because of his age, he would only be sent to “reform school” for a period of time.

The State’s confession of error concedes that before accepting defendant’s plea, he should have been informed by the court of a possible transfer and sentence of the kind which did take place, and to that extent defendant had therefore not been fully advised of the maximum penalty possibilities which might arise as a consequence of his plea. It is therefore confessed by the State that defendant had not comprehended the full extent of his possible punishment, and consequently had not understandingly entered his plea of guilty in accordance with Supreme Court Rule 26(3) as it then existed. 7 Ill.2d 45.

We agree with the State’s position, and, accordingly, the order dismissing defendant’s post-conviction petition is reversed, the sentence is vacated, the judgment of guilt as to voluntary manslaughter is reversed, and the cause is remanded.

Reversed and remanded.

DRUCKER, P. J., and SULLIVAN, J., concur.


author: Mr. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elaine Baumgarten, Defendant-Appellant.
    (No. 57993;
    First District (5th Division) —
    June 29, 1973.
    Irwin L. Frazin and Frederick F. Cohn, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Robert L. Horwitz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from an order revoking her probation (for failure to meet scheduled restitution payments which were a condition of probation) and sentencing her to one to three years in the women’s reformatory. She contends the trial judge erred (1) in refusing to temporarily suspend restitution payments and (2) in revoking her probation.

On April 16,1970, defendant entered a plea of guilty to a single charge of theft by deception of $1,600 arising out of her dealings as a real estate broker. There were many other complaints pending against her and, she having agreed to make total restitution, the trial judge, acting on the State’s recommendation, placed her on five years probation and ordered her to make payments to the adult probation department in the total amount of $120,132 at the rate óf $2,000 per month commencing on May 15, 1970. Defendant was informed by the trial judge that failure to make the restitution payments would be a violation of her probation and could result in a penitentiary sentence based upon the original plea of guilty. Subsequently, on motion of the State, the total amount of restitution was reduced to $92,482, apparently based on a recalculation of monies owed to her former clients.

She made payments from May 15, 1970, until August 18, 1971, when, on her motion, an order was entered reducing her monthly payments to $1,000 for a period of six months because of her alleged inability to pay a higher amount resulting from: (1) her continued poor health and (2) her separation from her husband who had been assisting her in making the payments. She continued the reduced monthly payments until December, 1971 or January, 1972 (the record is not clear as to when the last payment was made). At that time she had paid a total of $34,888 in restitution.

Thereafter, on March 2, 1972, she petitioned for early termination of her probation alleging her inability to make payments (1) because her poor health and the widespread knowledge of her conviction caused difficulty in earning income, and (2) because she was separated from her husband who had been the principal source of her payments. Her petition also alleged that initially she had cooperated fully with the State’s Attorneys office by producing her records and she had paid some claims before any complaints were filed against her. In addition, it was brought out during hearings on the petition that she had been and was still devoting considerable time in voluntarily assisting the United States government in an investigation of fraudulent Federal Housing Administration practices.

When her petition was called for hearing on March 2, 1972, the adult probation department petitioned for a Rule to Show Cause why her probation should not be revoked because she had discontinued payments. At a subsequent hearing on March 27, 1972, defendant testified that her estranged husband would no longer assist her in making the payments and at that time she had no funds to do so. She also testified that she expected to receive monies in the future which would be used to make payments.

The petition of defendant prayed for early termination of her probation but during the last hearing on March 27, 1972, her attorney made an oral request that her probation be continued but that her payments be suspended for three or four months so that she could “check” on her financial circumstances. On that date the trial judge revoked probation and sentenced defendant. It does not appear from the record that he gave any consideration to the request for temporary suspension of payments and this is further indicated in his reasons for revoking probation which were (1) that if he were to terminate her probation because of inability to pay, he would be setting a precedent which could result in many other defendants discontinuing payments and petitioning for probation termination alleging a lack of funds to pay and (2) that, in fact, she was not making payments.

OPINION

The code of criminal procedure (Ill. Rev. Stat. 1969, ch. 38, par. 117— 1) sets forth the factors to be considered for probation in an offense of the type involved here. In pertinent part it reads as follows:

“(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:
(1) The defendant is not likely to commit another offense;
(2) The public interest does not require that the defendant receive the penalty provided for the offense; and
(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense.”

The question of the granting or revoking of probation is normally within the discretion of the trial court. (People v. Mylander (1971), 3 Ill.App.3d 252, 278 N.E.2d 492.). However, we believe that the factors enumerated in par. 117 — 1 of ch. 38 should be considered both in the granting of probation and in the revocation thereof. Here the record does not disclose whether the court considered any of these factors at the time of the probation revocation. We have noted, however, that defendant had no prior criminal record, that she had made restitution payments before any complaints had been received by the State’s Attorney’s office, that she cooperated completely with the State’s Attorney, that her agreement to make restitution included complaints which may have been non-criminal in nature, that she made payments totaling $34,888 before experiencing the financial difficulties alleged in her petition and that she voluntarily presented a petition to the court to explain her reasons for discontinuing payments. It also appears that at the hearing on March 27,. 1972, the following colloquy took place:

“State: Do you expect any money in the near future which would enable you to make such payments?
Defendant: If I ever have anything they can have it. I just don’t have it now.”

We are aware of the fact that there remains $57,602 to be paid, but we are of the opinion that defendant was making a reasonable effort to complete restitution until her financial problems arose and we believe that there is sufficient indication in the record of the possibility of future payments so that the trial judge, in the exercise of his discretion, should have considered the continuation of probation and the requested temporary suspension of payments.

Our review is limited to the extent of determining whether the trial court did, in fact, properly exercise its discretion or whether it acted in an arbitrary manner. (People v. Saiken (1971), 49 Ill.2d 504, 275 N.E.2d 381.) We have reviewed the record to make this determination in the light of par. 117 — 1, ch. 38 and we believe (1) that inasmuch as more than three years have elapsed since her plea of guilty was entered there is little likelihood defendant will commit another offense, (2) that in view of defendant’s record of past payments, it would appear- to be in the interest of the public, particularly the persons offended, that she be allowed to continue in her efforts to obtain funds so that future payments could be made, and (3) that her prospects for successful rehabilitation would be better served by continuation of her probation with temporary suspension of payments, rather than by incarceration at this time.

The record also indicates that during the hearing no detailed inquiry was made of the defendant concerning the prospect of funds becoming available for future payments and we believe it would have been in the best interests of all concerned that this should have been done before revoking probation.

For the reasons stated we believe that the trial judge acted arbitrarily in his determination and, accordingly, we vacate the sentence imposed and reverse the order revoking probation.

In People ex rel. Ward v. Moran (No. 45197, May Term, 1973), our Supreme Court directed the procedure to be followed where a reviewing court reaches the conclusion we have here and, in compliance therewith, we remand this cause to the circuit court with directions to reassign it to a different judge for further hearing on the request of defendant to continue probation and on the petition to show cause why probation should not be revoked.

At such hearing the assigned judge should consider the fact that during oral arguments in this court defendant’s attorney stated that his client now has funds available and is able to resume restitution payments in some amount to be determined.

Reversed and remanded with directions.

DRUCKER, P. J., and ENGLISH, J., concur.


author: Mr. JUSTICE EGAN

text:
    Alphonse Cardinal, Plaintiff-Appellee, v. E. L. Trendel, Defendant-Appellant. E. L. Trendel, Third-Party Plaintiff-Appellant, v. Sam Caravello, Third-Party Defendant-Appellee.
    (No. 56685;
    First District (1st Division) —
    July 2, 1973.
    Herrick, McNeill, McElroy & Peregrine, of Chicago, (Ray W. Fick, Jr., and Michael J. Hamblet, of counsel,) for appellant E. L. Trendel.
    Samuel A. Maremont, of Chicago, (Morris Solomon, of counsel,) for appellee Alphonse Cardinal.
    Wexler and Wexler, of Chicago, for appellee Sam Caravello.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Cardinal, filed a complaint in the First Municipal District of the circuit court against the defendant E. L. Trendel, alleging that the defendant accepted the sum of $5000 from the plaintiff and executed a receipt by the terms of which the defendant accepted the money as a deposit on the purchase of certain real estate; and that the defendant failed to convey the real estate and failed to return the money. The complaint, which is on a Municipal District form used in contract actions, does not expressly allege that Trendel agreed to do anything. The defendant answered and filed a third-party complaint against Sam Caravello alleging that he took the $5000 from the plaintiff at the request of Caravello and forwarded it to an escrow pursuant to the instructions of Caravello; that the title to the property was taken in the name of the other parties named by Caravello; that Cardinal’s failure to acquire title was due to the fraud of Caravello; and that, if Trendel was liable to Cardinal, he should have a judgment against Caravello. Caravello answered that the money received by Trendel was advanced by Cardinal as a loan to Caravello to purchase the lot; that the plaintiff had confessed judgment against Caravello; and that the $5000 advanced was included in the judgment itself. After a bench trial, judgment was entered for the plaintiff, Cardinal, on the original complaint and for the counter-defendant, Caravello, on the third-party complaint. The defendant, Trendel, appeals from both judgments' and contends that the evidence does not support either judgment and that the court erred in refusing admission in evidence of an exhibit.

Cardinal had purchased his home from Caravello in 1958, and in 1965 Cardinal recommended Caravello as a homebuilder to his daughter, who informed him that Caravello “had his back against the wall.” Cardinal testified that he loaned Caravello a total of $22,000. Three notes given by Caravello to Cardinal dated July 1 and July 11 of 1966, and July 20, 1967, totaling $33,300 were introduced into evidence. Caravello called Cardinal and told him that he could get a good return on an investment in a lot. Cardinal went with Caravello and looked at lot 17 and told him he was “interested.”

Trendel was president of a building development company which also sold real estate. The company owned 105 lots, one of which is lot 17, comprising Cedar Glen subdivision in Arlington Heights. In 1963, he entered into a contract to sell all of the lots to McKay-Nealis Builders, Inc. McKay-Nealis forfeited and was allowed to rescind except as to certain lots, including lot 17, the title to which McKay-Nealis had already acquired. Trendel then entered into a contract with Caravello, who was president of B & G Builders, for the purchase of the forfeited residential lots which had not already been conveyed to McKay-Nealis. Caravello subsequently forfeited but was allowed to continue working on the lots upon which construction had begun. In 1966, he came to Trendel periodically, requesting conveyance of individual lots for which he had a buyer. In the spring, Caravello called Trendel and told him he had a buyer for lot 17 but did not mention his name. After learning from McKay-Nealis’ attorney that the purchase price was $6000, he so informed Caravello. On July 7, 1966, Caravello and Cardinal came to Trendel’s office. At that meeting, Trendel received a $5000 check made out by Cardinal and gave him, pursuant to Caravello’s direction, a signed receipt which reads as follows:

“Received of Mr. Alphonse Cardinal $5,000.00 as deposit on lot 17 in Block 5, Cedar Glen Subdivision. One Thousand Dollars to be paid upon closing.
E. L. TRENDEL”

At the time he showed Cardinal the lot, CaraveUo had a contract to build a home on that lot with Leonard and Ann Schirikoeth. He testified that he did not remember if he told Cardinal that he was building on the lot for the Schinkoeths. Trendel sent the check to his attorney and told him to hold it until he learned what “they” wanted. About a month after the meeting, Caravello called Trendel and told him that he had begun building on the lot and wanted the deed to be made out to the Schinkoeths. Trendel then advised his attorneys, who deposited the $5000 check and a quitclaim deed from Trendel’s company in the title escrow. Caravello was present at the closing, and McKay-Nealis conveyed to the Schinkoeths. Trendel got none of the proceeds of the sale. Caravello testified that he was paid for both the house and lot under the contract but that he did not pay Cardinal the $5000 he “advanced.” Cardinal testified he was putting up the money as an investment but that there were no definite terms agreed upon by him and Caravello.

In the early part of 1967, Cardinal asked Caravello if anything had been built on the lot, and Caravello told him he didn’t know anything about it. Since he did not believe Caravello, he went to the lot and saw an occupied residence on it. Neither Caravello nor Trendel ever asked him for the $1000 to complete the transaction.

On March 14, 1968, Cardinal confessed judgment in the County Law Division on the notes of Caravello in the sum of $35,047.50. That judgment was vacated, and on March 31, 1971, judgment was entered in the amount of $22,025. This suit was also filed on March 14, 1968, in the First Municipal District.

A letter dated May 2, 1968, was sent by the attorneys for Cardinal to the attorneys for Caravello which reads as follows:

“Dear Mr. Wexler:
I have had the Cardinals in my office yesterday and gone over their account with Caravello. After allowing the Cara-
vello credit for the $12,000.00 note, the account stands as follows:
I am willing to stipulate to a reduction in the amount of the judgment on condition that you furnish us with a good second mortgage for the $12,000.00 note and a satisfactory arrangement for the liquidation of this judgment.
Mr. Caravello mentioned when he was at your office that the $5,000.00 given to Mr. Trendel was the same $5,000.00 given to Mr. Caravello for the $11,300.00 note. That is not true. I have copies of both checks which I will be happy to show you.
To the amount of $27,025.00 must be added court costs and attorney’s fees.
Please call me when you have discussed this matter with Caravello and we can then work out the mechanics.
Very truly yours,
/S/ SAMUEL A. MAREMONT SAMUEL A. MAREMONT”

(Emphasis added.)

The defendant offered this letter as an admission showing that Cardinal considered the $5000 as a debt owed him by Caravello. An objection to its admission was sustained on the ground that it was hearsay. That ruling is assigned as error.

The heart of the matter is what constitutes the contract between Trendel and Cardinal. The terms are not clear from the complaint filed. However, Cardinal testified: “I gave the check to Trendel. * * * [f]or the lot I bought.” We conclude, therefore, that the contract sued upon required Trendel to convey, or to have someone else convey, lot 17 to Cardinal. Whether the evidence supports a finding that Trendel so agreed requires a detailed exposition of what transpired at the meeting of July 7. Cardinal testified that, after he had first seen the lot and then Trendel, he left to get the $5000 for the down payment. He returned the next day with Caravello. The following occurred during direct examination:

Q. Did you have a conversation with him, at that time?
A. Sam Caravello introduced us.
The Court: * * * Answer the question, did you have a conversation with Mr. Trendel?
Cardinal: No, I don’t have conversation.
The Court: We cannot hear what it was.
Q. The question is, did you talk to Mr. Trendel?
The Witness: Before the deal?
Mr. Solomon: Yes.
The Witness: Yes, I did talk to him before the deal.
Mr. Solomon: That is all. * * *

Caravello testified that Trendel told him in Cardinal’s presence that he could get the lot. Whether that statement was made at the first or second meeting is not clear.

Trendel testified that Caravello came with Cardinal into his office without an appointment and told him that “Cardinal was going to put up the money so he could build a house for another man” and that Cardinal said nothing. Trendel also testified that Caravello told him that Cardinal wanted a receipt for the check. Neither Cardinal nor Caravello ever rebutted this testimony of Trendel.

Needless to say, the burden of proving the terms of the contract rests upon the plaintiff. (Continental Illinois National Bank v. National Casket Co., 27 Ill.App.2d 447, 454, 169 N.E.2d 853.) This evidence, we conclude, is devoid of any proof to support a finding that Trendel promised to convey, or to have anyone else convey, title to lot 17 to Cardinal. The admitted and unrebutted evidence leads to no other conclusion but that Trendel in accepting the check and giving a receipt was acting as a conduit for the funds for Caravello with the knowledge and acquiescence of Cardinal.

The plaintiff’s reliance upon Grebe v. Vacek and Co., Inc., 103 Ill.App. 2d 79, 243 N.E.2d 438, is misplaced. In Grebe, the plaintiff, the only witness, testified that one Rusin told her that the defendant was the owner of the building and that he, Rusin, was a broker for the defendant, who did in fact own the building. The plaintiff drew a $5000 check payable to the defendant, which was cashed by the defendant. The court held that the evidence could support a finding that Rusin was in fact the agent of the defendant or that the defendant had ratified his action. By no stretch of the evidence in this case could a similar finding that Caravello was Trendel’s agent be upheld. Other distinctions between this case and Grebe are that Trendel did not own the property and, most important, did not receive any money.

In light of the position we take on the original complaint, we need not pass on the court’s ruling on the admissibility of the exhibit or the correctness of the judgment against the third-party plaintiff.

The judgment of the circuit court in favor of the plaintiff and against the defendant is reversed and the cause is remanded with directions to enter judgment for the defendant and against the plaintiff.

Judgment reversed and remanded with directions.

BURKE, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE HALLETT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ben E. Browder, Defendant-Appellant.
    (No. 56827;
    First District (1st Division) —
    July 2, 1973.
   Opinion by

Mr. JUSTICE HALLETT.

GOLDBERG, J., specially concurring.

James J. Doherty, Public Defender, of Chicago, (Kenneth N. Flaxman, and Shelvin Singer, Assistant Public Defenders, of counsel,) for appellant.

Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Terrence McQuigg, and Mark Zubor, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. JUSTICE GOLDBERG

text:
    Gapers, Inc., Plaintiff-Appellant, v. The Department of Revenue, Defendant-Appellee.
    (No. 57024;
    First District (1st Division) —
    July 2, 1973.

      Rehearing denied July 23,1973.

    Richard J. Short, of Chicago, for appellant.
    William J. Scott, Attorney General, of Chicago, (Donald S. Carnow, Assistant Attorney General, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

An assessment of $12,040.88, plus statutory penalties, covering the period from February 5, 1966 through December 14, 1968, was made by the Department of Revenue of the State of Illinois (Department) under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1961, ch. 120, par. 440 et seq.), against Gapers, Inc. (plaintiff). This action was reviewed in the circuit court of Cook County (Ill. Rev. Stat. 1969, ch. 110, par. 264 et seq.) and was affirmed. Plaintiff appeals.

Plaintiff operates a home catering business. It arranges parties at the homes of its customers for which it provides all necessary food, beverages, linen, glassware and personnel. All of these items are delivered to the home by truck which remains until conclusion of the meal. The truck then returns unused items as well as equipment supplied by plaintiff.

As a general custom, a representative of plaintiff confers with the customer at the home of the latter. They agree upon the number of guests; number of required personnel; whether necessary equipment, such as glassware, chairs and linen, is to be furnished by the customer or delivered by plaintiff; the menu; nature and quantity of beverages and the charge. There is also discussion at this meeting regarding the cost of trucking involved in transporting the food and equipment to and from the customer’s home. The hearing referee of the Department, who heard detailed evidence in the case, noted as one of his findings:

“It would also appear that although the taxpayer, in sending invoices to his [sic] customers, did not segregate the trucking charges, there is substantial proof that those charges were separately contracted for when the taxpayer’s consultant met with the ultimate customer.”

Examination of many of the invoices shows the factual basis for this finding. There are charges made for provisions and other items; and, as a general matter, the tax is computed only on these amounts and not on the trucking charges, which are separately shown. It is undisputed by the parties that, in preparing its tax returns for the period in issue for computation of the tax, plaintiff deducted the total cost of trucking services from its gross receipts.

In this court, plaintiff contends that, under the rules and regulations of the Department, plaintiff was entitled to deduct the trucking expense. The Department insists that delivery charges are part of plaintiff’s cost of doing business and therefore may not be deducted from gross receipts prior to computation of the Retailers’ Occupation Tax.

There is no dispute between the parties concerning the facts. The issue for resolution is entirely one of law and necessitates interpretation of the pertinent statute and of the applicable regulations of the Department to determine whether plaintiff is authorized to deduct trucking expense.

The pertinent statute provides (Retailers’ Occupation Tax Act, Ill. Rev. Stat. 1971, ch. 120, par. 440):

“ ‘Selling price’ or the ‘amount of sale’ means the consideration for a sale valued in money * # * and shall be determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever, * *

In administering this statute, the Department has promulgated articles commonly known as the Rules and Regulations of the Illinois Department of Revenue. Two of these articles are pertinent here and will be quoted. Article III, § 3 reads as follows:

“Cost of Doing Business Not Deductible
In computing retailers’ occupation tax liability, no deduction shall be made by a taxpayer from gross receipts or selling prices on account of the cost of property sold, the cost of materials used, labor or service costs, freight or transportation costs, overhead costs, clerk hire or salesman’s commissions, interest paid by the seller or any other expenses whatsoever.”

Article III, § 4(a) of the Department’s Articles under the Retailers’ Occupation Tax Act provides:

“Transportation and Delivery Charges
Transportation and delivery charges are considered to be freight, express, mail, truck or other carrier, conveyance or delivery expenses.
The answer to the question of whether or not a seller, in computing his retailers’ occupation tax liability, may deduct, from his gross receipts from sales of tangible personal property at retail, amounts charged by him to his customers on account of his payment of transportation or delivery charges in order to secure delivery of the property to such customers, or on account of his incurrence of expense in making such delivery himself, depends, not upon the separate billing of such transportation or delivery charges or expense, but upon whether the transportation or delivery charges are included in the selling price of the property which is sold or whether the seller and the buyer contract separately for such transportation or delivery charges by not including such charges in such selling price.
If such transportation or delivery charges are included in the selling price of tire tangible personal property which is sold, the transportation or delivery expense is an element of cost to the seller within the meaning of Section I of the Retailers’ Occupation Tax Act, and may not be deducted by the seUer in computing his retailers’ occupation tax liability.
On the other hand, where the seller and the buyer agree upon the transportation or delivery charges separately from the selling price of the tangible personal property which is sold, then the cost of the transportation or delivery service is not a part of the selling price’ of the tangible personal property which is sold, but instead is a service charge, separately contracted for, and need not be included in the figure upon which the seUer computes his retailers’ occupation tax liabüity.”

Plaintiff’s argument is predicated upon § 4(a) above quoted. Plaintiff takes the position that since the hearing referee found that the delivery charges were separately contracted for when the taxpayer’s consultant met with the ultimate customer, that § 4(a) must necessarily be applied with the result that plaintiff was authorized to deduct the entire cost of trucking from computation of its tax. We cannot agree with this argument for a number of cogent reasons.

The pertinent statute necessarily forms the governing basis for the method of computing the tax. As above set forth, the statute expressly provides that the selling price shall be determined without any deduction for labor or service cost or any other expense whatsoever. The meaning of this definition seems clear, definite and unambiguous. It forbids the deduction attempted by plaintiff. It would follow necessarily that the Department would be without legal authority to limit or extend the statutory definition by its own Rules and Regulations. Ex-Cell-O Corp. v. McKibbin, 383 Ill. 316, 50 N.E.2d 505.

We find this interpretation of the statute strongly supported by the Supreme Court in Vause & Striegel, Inc. v. McKibbin, 379 Ill. 169, 39 N.E.2d 1006. In commenting upon this statutory definition of the term “selling price” the Supreme Court held (379 Ill. at 172):

“The language employed is not only free from ambiguity but is specific to the effect that the selling price’ or the ‘amount of a sale’ is to be determined without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost, or ‘any other expense whatsoever.’ These words are all-embracing in their scope. (Gee Coal Co. v. Department of Finance, 361 Ill. 293.) The obvious meaning of the expression ‘any other expense whatsoever’ precludes the deduction which plaintiffs seek to make in determining their selling price for tax purposes.”

Furthermore, although plaintiff’s argument sounds logical if one reads only § 4(a) of the Rules and Regulations, this is dissipated by an examination of § 3 of the Rules. Certainly in determining this question we cannot confine our examination to any one section or paragraph of the Rules but we must read and study all of them together as one unit. Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 and People v. Carter, 376 Ill. 590, 592, 35 N.E.2d 64.

Examining the language of § 3, it states clearly that, in computing tax, plaintiff may not deduct from gross receipts of selling prices any labor or service costs or freight or transportation costs. This language seems quite definite and it is further clarified and accentuated by an additional element. The Department has also issued a series of Rules which in effect serve to elaborate upon the Regulations above quoted. Rule 7 provides that persons engaged in the business of selling meals to purchasers for use or consumption incur Occupation Tax liability upon receipts from such sales. The Rule states that it includes, but is not limited to, a number of types of vendors specifically including caterers.

Forbidding the deduction by plaintiff also seems quite logical and reasonable in the case at bar. As tire hearing referee specifically pointed out, plaintiff has not only agreed to prepare the necessary food and provide the equipment required for its consumption, but has agreed that the contract shall be performed at the home of the customer. In such case, as the referee noted, “* _* * the delivery becomes as important to the seller as to the buyer; it becomes an inseparable link in the chain of events leading to the completion of the sale of meals to purchasers and not merely incidental to the purpose of the taxpayer’s business of catering private parties in its customer’s homes.”

We are in accord with the findings and conclusions of the referee as approved by the trial court after administrative review.

Judgment affirmed.

BURKE, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory Johnson et al., Defendants-Appellants.
    (No. 57454;
    First District (1st Division) —
    July 2, 1973.

      James J. Doherty, Public Defender, of Chicago, Robert M. Gray, Assistant Public Defender, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Ronald Mendes and James E. Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendants pleaded not guilty to a charge of criminal trespass to a vehicle, in that, on October 27, 1971, they knowingly entered a certain Buick automobile without the consent of its owner, James Whaley. They waived jury trial, were found guilty and were sentenced to nine and six months, respectively, in the House of Correction.

On appeal, the defendants contend: (1) that the police officers did not have probable cause to pursue and arrest them; (2) that the evidence did not establish their guilt beyond a reasonable doubt; and (3) that the sentences imposed were excessive because, at the hearing in mitigation and aggravation, the State introduced, inter alia, evidence of one prior conviction each for possession of marijuana under a law since held unconstitutional. We conclude that these contentions are not well founded and that the convictions and sentences must stand.

Officer Zara testified that on October 27, 1971, at about 3:30 A.M., he and his partner were driving westbound on 16th Street, in Chicago, in response to a radio assignment. As they approached 3608 West Huron Street, Chicago, a green 1968 Buick passed them headed eastbound, and several persons in the doorway there said “There they go in that auto.” Officer Zara made a “U” turn and chased the car, keeping it in view at all times. They curbed the car on North St. Louis Street, saw the two defendants get out of the car and walk north and stopped and arrested both men. They also observed that the ignition lock and trunk lock of the car had been pulled.

James Whaley testified that he was the owner of the 1968 Buick Electra involved on October 27, 1971; that he promptly reported it stolen; that he saw it at the police station after the police recovered it; that the ignition lock was messed up; and that he had not given either defendant permission to be in his car.

The defendants’ version of the incident was quite different. Defendant Johnson testified that he and defendant Shanklin had been looking for work all day and arrived at the home of Johnson’s grandmother at 1636 South Christiana Street, where they arrived about 10:00 P.M.; that they took the bus to Homan Avenue where they got off at about 3:00 A.M. and started to walk to Shanklin’s home at 36 North Menard; that some police stopped them first on Homan Avenue, but after standing and questioning them, let them proceed for several blocks and that they were then arrested at Chicago Avenue by different officers; that they told the police officers that they had not seen a green Buick; and that he has never seen the car in question.

Defendant Shanklin testified substantially the same as Johnson. He denied knowing anything about or ever seeing the 1968 green Buick involved.

After the court had found both defendants guilty, a hearing in mitigation and aggravation was held in which it was shown that defendant Johnson had the following prior convictions — April, 1970, petty theft, ten days in House of Correction; December, 1970, theft, one year probation, first two days in House of Correction; March, 1971, possession of marijuana, three years probation, first four months in House of Correction; June, 1971, armed robbery reduced to theft, six months in House of Correction. Defendant Shanklin — March, 1971, possession of marijuana, two years probation; June, 1971, 60 days in House of Correction. No objections were made to the introduction of these prior convictions.

The State’s Attorney recommended one year in the House of Correction for defendant Johnson and nine months for Shanklin. The court sentenced them to nine months and six months, respectively, and these appeals followed.

We shall first consider the defendants’ contention that the police officers did not have probable cause to pursue and arrest them. They contend, among other things, that the officers were not entitled to rely upon information given them by anonymous bystanders, whose reliability had not been established.

In People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, in affirming the conviction, our Supreme Court, at page 514, said:

“They had a right to rely upon the partly hearsay information which they received from Miss Fritsch and Mrs. Considine (Draper v. United States, 358 U.S. 307, 311-12, 3 L.Ed.2d 327, 79 S.Ct. 329, 332), and the usual requirement of prior reliability which must be met when police act upon ‘tips’ from professional informers does not apply to information supplied by ordinary citizens. (Draper; People v. Lewis, 49 Cal. Rptr. 579, 582; George, Constitutional Limits on Evidence in Criminal Cases, 13.)”

In People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326, in affirming the conviction, the same court, at page 226, said:

“The officers here were justified in relying on the information received from the woman and, the usual requirement of prior reliability which must be met when police act upon ‘tips’ from professional informers does not apply to information supplied by ordinary citizens. (See People v. Hester.)”

And more recently, in People v. Frisco, 4 Ill.App.3d 193, 280 N.E.2d 557, in affirming the conviction, this court, at page 195, said:

“In the instant case, however, the person who gave the police the information was a private citizen who apparently had no motive of personal gain in informing the police that a crime had been committed. The requirement of prior reliabüity which must be met when police act upon ‘tips’ from professional informers does not apply to information supplied by ordinary citizens. (Draper v. U.S., 358 U.S. 307.) See also People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, where the court said that the police had a right to rely upon partly hearsay information which they received from school employees, and also held that the doctrine of prior reliabfiity did not .apply to information received from ordinary citizens.”

Furthermore, the applicable statute gives an officer the power to arrest a person when “he has reasonable grounds to believe, that a person is committing or has committed an offense.” (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c).) Applying this, in affirming the conviction, our Supreme Court, in People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580, at page 431, said:

“Defendant first claims that there was no probable cause for his arrest by Officer Wolf. .The applicable statute provides that a peace officer may arrest a person when ‘He has reasonable grounds to believe that the person is committing or has committed an offense.’ (Ill. Rev. Stat. 1965, chap. 38, par. 107 — 2(c).) Although it is true that mere suspicion, common rumor or report do not afford probable cause for arrest (People v. Pitts, 26 Ill.2d 395), it has been consistently held that reasonable cause means something less than evidence which would result in a conviction. (People v. Jones, 31 Ill.2d 42.) Furthermore, it has been stated that the existence of reasonable cause which wül justify an arrest without a warrant depends upon ‘factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U.S. 160, 175, 93 L.Ed. 1879, 1890.” . .

And in People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, above cited, the court, at pages 513-514, said: . ...

“We have said that reasonable cause’ to make an arrest without first obtaining a warrant, means .something less than evidence which would result in a conviction (People v. Jones, 38 Ill.2d 427, 431), and the absence of a warrant may justifiably be made to depend upon ‘factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act’ (Brinegar v. United States, 338 U.S. 160, 175, 93 L.Ed. 1879, 69 S.Ct. 1302; People v. Pitts, 26 Ill.2d 395, 399.)”

And, in affirming the conviction in People v. Adams, 8 Ill.App.3d 62, 289 N.E.2d 53, this court, at page 67, observed that:

“[T]he test of probable cause is whether a reasonable and prudent man in possession of the knowledge that has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction * # « that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. (People v. Macias, 39 Ill.2d 208, 213, 234 N.E.2d 783.)”

Additionally, the fact that a moving automobile, not a home or office, is involved tends to reduce somewhat the quantity of information which the officer needs to justify his actions. In People v. Erb 128 Ill.App.2d 126, 261 N.E.2d 431, the Appellate Court for the Second District, in affirming the conviction, at page 133, took the occasion to say that:

“The courts, moreover, have long distinguished between an automobile and a home or office in terms of circumstances justifying a warrantless search. See Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 426, 90 S.Ct. 1975, 1979 (1970), holding that ‘automobiles and other conveyances may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.’ Here, the mobility of the car, the fact that the occupants have been alerted, and the danger that evidence may never be found again if a warrant' must be obtained, support the reasonableness of the search of the car after the apparent traffic violation and the detection of the odor of marijuana.”

In our opinion, the standards above set forth are met in the case at bar. The arresting officer observed a green Buick going away from the scene, he was told by non-professional bystanders that “There they go in that auto,” he made a “U” turn and pursued them, keeping them always in sight, after the car was curbed several blocks away, he saw the defendants exit the car and he and his partner arrested them and found that the ignition lock and the trunk lock had been pulled. We hold that the arresting officer, under these circumstances, had probable cause to arrest them. To have done less would have been a dereliction of his duty.

Furthermore, even were the arrest unlawful, no “fruits” of their arrest were used to convict them.

Turning now to the defendants’ second contention — that the State has not proved the elements of the offense beyond a reasonable doubt — we conclude that this point is without merit. The defendants were charged under Ill. Rev. Stat. 1971, ch. 38, par. 21 — 2, which reads:

“Whoever knowingly and without authority enters any vehicle, aircraft or watercraft or any part thereof of another without his consent shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.”

In support of their contention, the defendants first assert that there was insufficient evidence to prove an entry into the vehicle in question, stating that; when they were apprehended on the street by the police, they were not out of breath, nor did they run. They contend that this was not the conduct of guilty men and that this behavior ought to demonstrate their innocence. Against these assertions, we have the testimony of Officer Zara, who stated unequivocally that he saw the defendants leave the car after they had pulled over to the curb and that they were never out of his sight until they were arrested by him. This is a question of fact which was properly determined by the trial judge, who decided to believe Officer Zara’s version of the incident, and we will not disturb that finding, unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of guilt of the accused. (People v. Vail, 74 Ill.App.2d 308, 221 N.E.2d 165.) The defendants’ assertions of innocence certainly did not do this, and we conclude the trial judge decided rightly on this question.

As to the defendants’ argument — that there was insufficient evidence to show the vehicle belonged “to another” — we find that the minimal discrepancy in the license number, (one digit was omitted) coupled with the correct make, color, and year of the vehicle, was more than sufficient to show ownership, and therefore the requisite elements of the offense have been proven.

This brings us to the defendants’ third and last point — that the sentences imposed are excessive because, at the hearing in mitigation and aggravation, the State introduced, inter alia, evidence of one prior conviction each for possession of marijuana under a law since held unconstitutional.

The defendants rely principally upon the Illinois Supreme Court’s opinion in People v. Crews, 38 Ill.2d 331, 231 N.E.2d 451. There the trial court, after a bench trial in which a woman was convicted of beating a 2-year-old child, who resided with her, to death after the child had turned on the hot water in the bathtub, took into consideration a case worker’s report reflecting statements made by a four-and-one-half-year-old child as to the defendant’s previous mistreatment of the victim, and sentenced the woman to death. The Supreme Court, in affirming the conviction but remanding for sentencing, at pages 337-339, said:

“The statements of Jeffrey, if made and if true, portray horrifying mistreatment of Lisa on other occasions by the defendant. It is plain that the trial judge was influenced by the report. This misconduct was denied by the defendant.
#
Plainly, a judge with the solemn responsibility of determining the punishment of the convicted is to be encouraged to hear and consider all available and pertinent information concerning the person and the crime, so as to enable him to impose a punishment which is appropriate. However, before relying on such information tire judge must determine its accuracy (see People v. O’Neil, 18 Ill.2d 461, 466; People v. Serrielle, 354 Ill. 182), and he must take care to shield his mind from what might be the prejudicial effect of unreliable and other improper evidence. (See People v. Riley, 376 Ill. 365, 369.) If it is shown that the convicted has been prejudiced by the procedure adopted, or material considered by the trial court in conducting its inquiry prior to the imposition of punishment, the resultant penalty will not be allowed to stand. People v. McWilliams, 348 Ill. 333; see People v. Riley, 376 Ill. 364, 371, 372.
Considerations governing the admissibility of a child’s testimony during trial are applicable equally to a child’s testimony in connection with the post-trial matter of sentencing. Generally, the trial court must conduct a preliminary in-person examination of a witness of doubtful competency, such as a child, to determine competency to testify. (Shannon v. Swanson, 208 Ill. 52; People v. Enright, 256 Ill. 221.) * * *
Seven witnesses here gave testimony at the hearing in mitigation and aggravation, and all testified under oath. However the 4Yz-year-old child, Jeffrey, was not present at the hearing and so far as we can determine was never seen by the trial judge. The court had no opportunity to appraise his relative maturity or immaturity, his understanding or incapacity to understand the necessity that truth be told and to consider other qualities going to the question whether reliance could properly be placed on what he said or might say. Also, neither the caseworker nor the temporary foster mother was called and they apparently were not known by the trial judge. We do.not mean in making this observation to impugn their veracity but we deem that in orderly procedure they should have been called and counsel for the defendant given the opportunity for cross-examination. Particularly, Jeffrey should have been available for examination by counsel, as well as by the court and State’s Attorney. As related, we said in People v. Mann, 27 Ill.2d 135, that the trial court may search within reasonable bounds for facts in an inquiry relative to aggravation or mitigation. Here, the trial court’s search passed such bounds and was improper.” (Emphasis ours.)

This is a far cry from the situation in the case at bar. Here the defendant Johnson had three previous convictions, other than the marijuana charge, and only got nine months in the House of Correction; and defendant Shanldin, with one previous conviction, other than the marijuana charge, got only six months. Obviously, the trial court was not influenced by the marijuana convictions and the sentences are not in any way excessive or harsh.

In People v. Smith, 14 Ill.2d 95, 150 N.E.2d 815, where the defendant claimed that the sentence, after two previous convictions, was excessive because the trial court was not sufficiently impressed by his testimony on mitigation, our Supreme Court, at pages 97-98, said:

“Where it is contended that the .punishment imposed in a particular case is excessive, though within the. limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense. People v. Dixon, 400 Ill. 449; People v. Mundro, 326 Ill. 324; People v. Lloyd, 304 Ill. 23; People v. Elliott, 272 III. 592.
# # #
In view of his criminal record, .a minimum sentence of twelve years is within both the limits of punishment set by law and the judicial discretion of the trial court. Defendant was afforded a fair hearing and full opportunity to show any circumstances in mitigation of the offense. We . cannot say that his rights were in any manner prejudiced by the procedure adopted or that the trial court abused its discretion in pronouncing the sentence and judgment."

It should also be presumed that the trial court, on the hearing in mitigation and aggravation, disregarded any incompetent or immaterial evidence. In People v. Robinson, 116 Ill.App.2d 323, 253 N.E.2d 570, the defendant contended that the sentence was excessive because the court, on the hearing on mitigation and aggravation, had examined a probation officer’s report containing references to the defendant’s previous questioning by police, where no convictions had resulted. The court struck such references from the report and stated that it would not consider them. In affirming the sentence, the Appellate Court for the Fourth District, at pages 331-332, said:

“While matters concerning various arrests on which there was no finding of guilty should not be received in evidence at a hearing in aggravation and mitigation, as stated by the courts in People v. Drewniak, 105 Ill.App.2d 37, 245 N.E.2d 102 and People v. Bradford, 23 Ill.2d 30, 177 N.E,2d 139, it is presumed, on a hearing in aggravation and mitigation, that the court will disregard any incompetent evidence when determining the degree of punishment. No reversal or reduction of sentence is justified on the basis of the record relating to such matters in the cause before us. The trial court observed defendant during the trial and heard all' of the witnesses and, therefore, was in a better position to determine the degree of punishment than is a court of review as has been stated by many courts of this State (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673).” (Emphasis added.)

It should also be noted that this point was in no way raised in the trial court and is therefore not properly before us. See:

People v. Harris, 33 Ill.2d 389, 211 N.E.2d 693; People v. Moore, 43 Ill.2d 102, 251 N.E.2d 181; People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432; People v. Burroughs, 10 Ill.App.3d 477, 294 N.E.2d 325.

We therefore affirm the judgments of the circuit court.

Judgments affirmed.

GOLDBERG and EGAN, JJ., concur.


text:
    Gerald Ashe, Plaintiff-Appellant, v. James Hatfield et al., Defendants-Appellees.
    (No. 58301;
    First District (1st Division) —
    July 2, 1973.

      Foss, Schuman & Drake, of Chicago, (Carolyn H. Krause, of counsel,) for appellant.
    Sidley & Austin, of Chicago, (David P. List and Jerrold E. Fink, of counsel,) for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Gerald Ashe (plaintiff) brought action for libel against Columbia Broadcasting System, Inc. and its Assistant News Director James Hatfield (defendants.) The trial court sustained the motion of defendants and dismissed the suit with prejudice. Plaintiff appeals.

The pertinent facts appear from the properly pleaded allegations of plaintiff’s complaint, admitted by the motion to dismiss. (Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 963, 282 N.E.2d 452 and cases therein cited.) It appears from the complaint that plaintiff was, and still is, employed as a news writer by defendant Columbia Broadcasting, where defendant James Hatfield worked as assistant news director. On or about May 25, 1972, Hatfield, individually, and as agent for Columbia Broadcasting, “maliciously and wrongfully” published a certain “false, defamatory, malicious and scandalous libel of and concerning Plaintiff and of his said employment.” This was written with the intention of injuring and destroying plaintiff’s good name and reputation in his employment and to cause him to be regarded as unfit and unworthy to perform his duties as a journalism writer.

A copy of the allegedly libelous communication was appended to the complaint. It is here reproduced in full::

“CBS MEMORANDUM From: Jim Hatfield To: JERRY ASHE
Date: 5/25/72
cc: MANN, D. SMITH, J. J. RODGER, FILE For the second time in two days, I find it necessary to take this formal way of advising you your writing is not up to the minimum standard we need to assure quality news broadcasts at WBBMTV.
As I have told you repeatedly in person and yesterday in writing, we are looking for writing that is simple, direct, accurate and conversational.
Your script slugged ‘Democratic Dinner read as follows:
‘It was quite a gathering of the clan last night in Chicago. The Democratic clan * 6 * of Cook County. It was the annual dinner of the Cook County Democratic leaders * * * at 100 dollars a plate. Five thousand people turned out * * * at the Conrad Hilton hotel. Bob Faw reports/
In a relatively brief space, this script is needlessly repititibus [sic]. In 47 words, you used the terms ‘clan and ‘Democratic’ twice. There are two unclear pronoun references: the ‘it’ in the first sentence and the ‘it’ in the third sentence.
But what bothers me even more than the poor writing is fire ■ lack of accuracy. A total of 6500 epople [sic] attended the dinner, not ‘five thousand’ as your script leads one to believe. My source is the banquet services manager of the Conrad Hilton Hotel.
One more thing. I have asked you to date your scripts. This is important for record keeping. Your script ‘Democratic Dinner’ was not dated. Please see that every script you write contains the day’s date, your initials and the initials of the film editor who worked with you on the story.
I hope you will take immediate steps to correct the deficiencies [sic] I have noted in this memo.
J. H.”

■ In them motion to dismiss, defendants averred that the writing in question was not defamatory so that no cause of action was stated; and was not libelous per se so that, absent allegation of special damage, no cause of action was pleaded. The motion set forth that the memorandum was written simply as a critique to plaintiff who was a subordinate of Hatfield; the criticism of plaintiff’s work was true, proper and correct; the memorandum was conditionally privileged and this privilege was not overcome by the conclusory allegations of malice in the complaint.

In this court, plaintiff -urges that the complaint states a cause of action as the memorandum is libelous per se; conditional privilege must be raised by defense and that it is not apparent that no cause of action can be stated by plaintiff so that dismissal of the cause was erroneous. Defendants contend that the entire memorandum is capable of innocent construction, hence -is not" libelous per se and is not actionable; the memorandum contains but one single instance of criticism and therefore is not actionable; the criticism in the memorandum is true and correct and is conditionally privileged without malice; and, finally, it was not error for the trial court to refuse to grant plaintiffs “oral motion” for leave to amend his complaint.

Under the view we take of this case, it is not necessary for us to consider each and all of the grounds urged by both sides. The following principles are dispositive of the appeal.

We are required to read the memorandum as a whole and then to give the language used its natural and obvious meaning. In this regard, it is an accepted rule of law that where the allegedly libelous words are capable of an innocent construction, they must be read in that manner and declared nonactionable as a matter of law. (John v. Tribune Co., 24 Ill.2d 437, 442, 181 N.E.2d 105.) Other recent Illinois cases applying this rule of innocent construction in rather similar situations are Conrad v. Logan, 4 Ill.App.3d 981, 283 N.E.2d 54 and Van Tuil v. Carroll, 3 Ill.App.3d 869, 279 N.E.2d 361.

Applying this principle to the memorandum, we are constrained to hold that it is not actionable. No language in the document is directed against plaintiff himself. The criticism is directed only to one small paragraph written by plaintiff. In this regard, the case at bar is quite similar to a most recent opinion by this court. (Delis v. Sepsis, 9 Ill.App. 3d 217, 292 N.E.2d 138.) There, this court held that a circulated letter using the words “liar”, “dishonorable” and “deluded” were not libelous per se. The letter showed on its face that these words did not apply to plaintiff in general terms but were based upon the remaining facts in the letter. This court pointed out that lack of injury or harm to plaintiff was evident because he still held the position with reference to which the words had application. (9 Ill.App.3d at 221.) The same situation holds true here. The memorandum was dated May 25, 1972 and plaintiffs complaint, filed some 19 days later, alleged that plaintiff was still employed as a news writer for defendant Columbia Broadcasting. It follows that, under the innocent construction rule, the memorandum in question is not actionable.

It appears affirmatively from the memorandum and from the complaint that the former is conditionally privileged. An inter-office memorandum of this type directed to plaintiff containing a critique by his superior of the performance of his duties is generally the subject of conditional privilege. The courts of Illinois have set out five prerequisites for conditional privilege. They are: (1) good faith by the writer; (2) an interest or duty to be upheld; (3) a statement limited in its scope to that purpose; (4) a proper occasion and (5) publication in a proper manner and to proper parties only. (Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill.2d 345, 349, 243 N.E.2d 217 quoting from Judge v. Rockford Memorial Hospital, 17 Ill.App.2d 365, 384, 150 N.E. 2d 202.) It is apparent that the memorandum here involved complies with each and all of these requirements and is therefore conditionally privileged. For an analysis of a very closely similar situation, see Kamheros v. Schuster, 132 Ill.App.2d 392, 270 N.E.2d 182.

Nor is it correct, as plaintiff urges, that the existence of conditional privilege is a matter of affirmative defense to be raised only by answer. On the contrary, our courts have consistently held that the issue as to whether an allegedly libelous document “* * # was a qualifiedly or conditionally privileged communication, or not, was a question of law for the court only, not a question of fact for the jury.” (Judge v. Rockford Memorial Hospital, 17 Ill.App.2d 365, 384, 150 N.E.2d 202.) Thus, as above shown the point of conditional privilege was properly r,aised by the motion to dismiss. Since the document is conditionally privileged, it would be actionable only if motivated by actual malice. In such a situation, the burden of proving malice would rest upon the plaintiff. See Kamberos v. Schuster, 132 Ill.App.2d at 397, 270 N.E.2d 182 and cases therein cited.

In the case at bar, no actual malice is present. It appears directly and affirmatively from the memorandum itself that it was not written with actual malice. The purpose of the memorandum is declared in the first few lines thereof as being an attempt on the part of the writer to obtain quality news broadcasts. The criticism is directed only at a very short paragraph of plaintiffs work and has no application or relation to plaintiff personally. The final lines of the memorandum express the hope that these deficiencies will be corrected. Complete absence of malice appears from this type of document.

It is therefore apparent that the trial court properly sustained the motion of defendants to dismiss. As regards plaintiffs claimed right to amend, no proposed amended complaint was ever presented to the court. Thus no claim of error can be supported by plaintiff. Austin Liquor Mart, Inc. v. Dept. of Rev., 51 Ill.2d 1, 8, 280 N.E.2d 437. See also Zamouski v. Gerrard, 1 Ill.App.3d 890, 898, 275 N.E.2d 429.

Judgment affirmed.

BURKE, P. J., and EGAN, J., concur.


text:
    Francis B. Stine et al., Plaintiffs-Appellees, v. The Chicago Transit Authority et al., Defendants-Appellants—(The City of Evanston et al., Intervenors-Appellees.)
    (No. 58911;
    First District (1st Division) —
    July 3, 1973.

      Rehearing denied July 27, 1973.

      John Devine and Norman J. Barry, both of Chicago, (Rothschild, Barry, & Myers, of counsel,) for appellants.
    Jack M. Siegel, Corporation Counsel, of Evanston, for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The Chicago Transit Authority, a municipal corporation, and the individual members of its governing body, the Chicago Transit Board, (defendants) appeal from an order granting a preliminary injunction against them which will shortly be described. This order was entered on motion of the original plaintiffs, Francis B. Stine and Nathaniel L. Nathanson and also of four intervenors: city of Evanston, village of Wilmette, Carl Leonard and other persons acting with Businessmen for the Public Interest and also Ravenswood Manor Improvement Association acting with two individuals. Only the city of Evanston has seen fit to appear and to assist this court with a brief. These plaintiffs and all intervenors wiH be referred to as “plaintiffs”. A statement of the factual background is required.

On April 8, 1971, defendants adopted an ordinance providing for abandonment of a stop on the public transit route through Evanston to Chicago, known as the Isabella station, and removal of the station buddings and platforms. On April 30, 1971, the two individual plaintiffs first above named filed a complaint to restrain enforcement of this ordinance. Thereafter the city of Evanston and the village of Wilmette sought and obtained permission to intervene in the proceedings. On January 15, 1973, defendants adopted additional ordinances providing for abandonment of four more stations in Evanston and for other curtailment of service there and also in certain areas of Chicago. Amended pleadings were filed by Evanston seeking to enjoin this additional curtailment. The two additional groups of intervenors above described then obtained leave to becomé parties hereto.

On February 16, 1973, defendants adopted another ordinance rescinding all of the previous ordinances as above described with the exception only of the one providing for abandonment of the Isabella station. Upon written motions by plaintiffs and intervenors the court heard a considerable' amount of testimony and then, on February 16, 1973, entered the preliminary injunction appealed from.

1 This injunctional order found that the defendants “* ” # proposed to curtail and abandon certain transportation service presently supplied by" it * * and that this action is beyond tlie power of the Chicago Transit Authority, and without due' prdcess of law; that members of the public represented by the plaintiffs ánd intervenors herein Will be immediately and irreparably harmed thereby; that plaintiffs and intervenors have demonstrated a reasonable probability of ultimate success on the merits in this cause; and that a temporary injunction, pending a full hearing on the merits, should issue in order to preserve the status quo pending such hearing * * Accordingly the court enjoined defendants until further order' of the court “* * * from instituting and implementing any curtailment or abandonment in transportation service which the defendant Chicago Transit Authority, as of 2 P.M. on the date hereof, regularly provides, whether on a daily or periodic basis.”

In this court, defendants contend that the statute creating the Chicago Transit Authority specifically grants them power to discontinue, terminate or otherwise' curtail their service. The brief filed for the city of Evanston contends that the preliminary injunction was not an abuse of the discretion of the trial judge and therefore it should be affirmed; and, that defendants do not have authority to terminate and discontinue service; or, if they do, that the action here taken was unreasonable and arbitrary.

The Chicago Transit Authority was created in 1945 by the Metropolitan Transit Authority Act. (See Ill. Rev. Stat. 1971, ch. 1112/3, pars. 301 to 344 inclusive.) The status of the Authority as a municipal corporation vested with governmental powers and the constitutionality of the statute which created it are not open to question. (People v. Chicago Transit Authority, 392 Ill. 77, 64 N.E.2d 4.) Consequently our primáry source in determination of the power of the Authority is an examination of the governing statute. Paragraph 304 of the statute provides that the powers of the Authority are not to be exercised until adoption of the Act by the electors of one or more cities within the subject area. It is agreed that this condition precedent has been fulfilled. Paragraph 306 vests in the Authority: # # power to acquire, construct, own, operate and maintain for public service a transportation system in the metropolitan area of Cook County and outside thereof to the extent provided and all the powers necessary or convenient to accomplish the purposes of this Act * * *.” Paragraph 308 grants the Authority “* * # power to acquire by purchase, condemnation, lease, gift or otherwise any property and rights useful for its purposes and to sell, lease, transfer or convey any property or rights when no longer useful or exchange the same for other property or rights which are useful for its purposes.”

Paragraph 330 provides that the governing Board of the Authority “* # * shall make all rules and regulations governing the operation of the transportation system, shall determine all routings and change the same whenever it is deemed advisable by the Board, subject to the provisions of any ordinance granting rights to the Authority.” Paragraph 332 provides a method of sale by the Authority of property valued at more than $2500, after advertising for bids.

In arriving at the meaning of this statute, we have given due weight to the principle that municipal corporations have only those powers which are expressly vested in them by the legislature as their creator and those necessarily implied from or incident to these expressly granted powers. (Appeal Bd. v. U.S. Steel Corp., 48 Ill.2d 575, 577, 272 N.E.2d 46.) However, upon complete analysis, we conclude, and accordingly hold, that this statute empowers the Transit Authority to curtail or abandon its transportation services. We base this conclusion upon the language giving the Authority all “powers necessary or convenient” to accomplish the purposes of file Act itself; upon the power vested in the Authority to sell, lease, transfer or convey its property or rights when no longer useful; and also upon the stated power of the Board to determine and change all routings whenever it is deemed advisable. The sum total of this language used in the statute negates any other conclusion.

In addition, as a matter of practical logic, it would be most cumbersome and virtually impossible in actual operation to create a public transportation system which was deprived of the power to curtail or abandon its operations in accordance with varying public necessity and convenience. Furthermore, the granted authority to “change” “routings” necessarily includes power to terminate or discontinue any part or the whole of any particular route.

We find this conclusion amply supported in Lustfield v. Chicago Transit Authority, 408 Ill. 404, 97 N.E.2d 347. The issue there was whether the Authority was obligated to maintain its service, seven days per week, between Berwyn, Cicero and Chicago; or, whether it had the power to suspend weekend service on the routes in question. Incidentally involved in the case was the right of the Authority to substitute shuttle buses in lieu of electrical service. Provisions for weekend and electrical service were contained in the original ordinances applicable to the predecessor of the Authority. The Supreme Court pointed out that the pertinent statute vested “complete authority” in the Chicago Transit Authority. Commenting upon that portion of the statute which vested the power to adopt all “proper or necessary rules and regulations” the court held (408 Ill. at 413):

“We cannot imagine stronger language to convey to the Transit Authority full power to conduct the business of managing, regulating and operating a transportation system in the municipal area of Chicago.”

We note that this language is also quoted in Chicago Motor Coach Co. v. Budd, 346 Ill.App. 385, 391, 105 N.E.2d 140. In Lustfield, the court went on to point out that the statute “” * * grants the Authority full power to undertake the change in service which it proposed here.” 408 Ill. at 415.

However, counsel for Evanston contend that the decisive issue here is simply whether or not the preliminary injunction, pending a full hearing of the case, was an abuse of the discretion of the trial court. The principle is undoubtedly valid as a general rule that granting of a preliminary injunction is within the sound discretion of the trial court and unless such discretion is abused a reviewing court will not set it aside. (Lonergan v. Crucible Steel Co., 37 Ill.2d 599, 612, 229 N.E.2d 536.) However, the case at bar turns not upon the exercise of discretion in factual matters but solely upon a question of law. In our opinion the sweeping provisions of the injunction order appealed from, which would completely prevent defendants from instituting any “curtailment or abandonment” in the operation of the entire system of the metropolitan area, were contrary to the clear intent of the pertinent statute as demonstrated above.

Counsel for Evanston further urge that the one remaining unrescinded ordinance here involved, namely that which provides for eliminating the transit stop at Isabella Street in Evanston, was adopted without public hearing so that the rights of plaintiffs have been violated and they have been deprived of due process of law. A review of the pertinent statute demonstrates, however, that no provision was made by the legislature for public hearings before the adoption of ordinances by the Authority; This seems most wise and practical. Such requirement would enmesh the Board in a series of hearings the determination of which might well infringe upon and prevent the efficient transaction of their business. In this regard, there is a clear distinction between the powers and functions of the Transit Board and the Illinois Commerce Commission. In the latter situation, there is elaborate machinery for hearings and investigations. (See Ill. Rev. Stat. 1971, ch. 111%, par. 64.) We hold that there was no requirement for the holding of public hearings by the Transit Authority prior to curtailment or abandonment of service.

This does not mean, however, that persons who may consider themselves aggrieved by ordinances of the Board are without remedy or recourse. On the contrary, the courts have power to protect all persons against oppressive, arbitrary or unreasonable ordinances; precisely as in the case of any other mimicipar corporation. In this type of situation, enactments of the municipal corporation are clothed with presumptive validity and courts will enjoin the operation thereof only when this presumption is overcome by clear and convincing evidence. (Village of Glencoe v. Jackson, 102 Ill.App.2d 65, 74, 243 N.E.2d 865.) This same principle has been repeatedly announced in virtually every zoning case. Chicago Title & Trust Co. v. Chicago, 130 Ill.App.2d 45, 50, 264 N.E.2d 730. This record shows that the trial judge heard evidence upon this issue but the order appealed from shows upon its face that the trial court struck from the previously prepared draft order the words “arbitrary and unreasonable” leaving only a finding that the proposed curtailment was beyond the legal power of the Authority, and this was the sole and only basis for the order appealed from. Actually, the record shows that in colloquy between the able trial court and counsel the court expressly stated, and repeated, his considered opinion that the Board did not act in an arbitrary or unreasonable manner. The argument made by counsel for Evanston that the evidence showed that the Board acted unreasonably and arbitrarily thus fails because of its specific rejection by the trial court.

It follows that the injunctional order appealed from should be and is reversed.

Order reversed.

BURKE, P. J., and HALLETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Samuel Hill, Jr., Defendant-Appellant.
    (No. 56899;
    First District (2nd Division) —
    July 5, 1973.
    No appearance for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

DOWNING, J., took no part.