author: PRESIDING JUSTICE RIZZI

text:
    THE CITY OF CHICAGO ex rel. DEMETRI KONSTANTELOS et al., Plaintiffs-Appellants, v. DUNCAN TRAFFIC EQUIPMENT COMPANY et al., Defendants-Appellees.—(THE CITY OF CHICAGO, Plaintiff-Appellee, v. DUNCAN TRAFFIC EQUIPMENT COMPANY et al., Defendants-Appellees.)
    First District (3rd Division)
    No. 79-1762
    Opinion filed November 18, 1981.
    Rehearing denied December 29, 1981.

      George C. Pontikes, of Foss, Schuman & Drake, of Chicago, for appellants.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    James N. Karahalios, of Chicago, for appellee John Geocaris.
    Sidney J. Hess, Jr., Joel J. Sprayregen, Roger L. Price, and Gary E. Mitchell, all of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, for appellees Duncan Traffic Equipment Company, Jerome J. Robinson, and Ted Mieczynski.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Demetri Konstantelos (hereinafter Taxpayer), filed a taxpayer’s suit in the name and for the benefit of the city of Chicago to recover money belonging to the city which was allegedly paid without authority of law. (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 5—1.) After the Taxpayer’s suit was filed, the city filed its own suit involving the same subject matter against some of the same defendants named in the Taxpayer’s suit. The two cases were consolidated. The Taxpayer’s suit was later dismissed pursuant to a motion by defendants. Shortly thereafter, the city’s suit was dismissed pursuant to a settlement agreement between the city and the defendants named in the city’s suit. Neither the Taxpayer nor his attorney was given any details of the settlement. The Taxpayer appeals the dismissal of the Taxpayer’s suit and the dismissal of the city’s suit. We reverse the dismissals and remand.

The Taxpayer’s suit named as defendants Duncan Parking Meter Maintenance Company; Jerome J. Robinson, president of Duncan Parking Meter Maintenance Company; Ted Mieczynski, vice-president of Duncan Parking Meter Maintenance Company; John Geocaris, deputy commissioner of streets and sanitation in charge of parking; and the treasurer of the city of Chicago. The complaint charged that Duncan Parking had a contract to inspect the parking meters for the city and that it submitted a bill to the city for the inspection of 34,974 parking meters during the months of January and February 1979. The bill totaled $270,681. The complaint further alleged that the deputy commissioner signed city reports stating that the inspections were made by Duncan Parking twice a week during January and February. In addition, the complaint alleged that the deputy commissioner approved payment of the bill of $270,681, which was then paid by the treasurer. The complaint goes on to charge that there was a conspiracy by Robinson, Mieczynski and the deputy commissioner whereby the deputy commissioner was to pay all bills submitted by Duncan Parking whether or not Duncan Parking in fact performed services for the city. Also, the complaint charged that as a result of near-blizzard snow conditions during most of January and February 1979, it was impossible to have made the inspections which Duncan Parking claims were made, and that no actual services were rendered to the city in exchange for the payment of $270,681. The complaint also states that in light of the fact that weather conditions did not permit an inspection of the parking meters by Duncan Parking, the deputy commissioner’s approval of the payment of the bill for $270,681 cannot be explained by mere administrative oversight and negligence. In addition to other relief, the complaint requested that Duncan Parking and the deputy commissioner provide a full and complete accounting of services rendered by Duncan Parking during the months of January and February 1979.

On April 23,1979, Duncan Parking filed a verified answer in which it denied the allegations in the complaint as they pertained to it, and a motion to dismiss in which it denied that it had a contract with the city to inspect parking meters. On April 26, an order was entered giving the Taxpayer until May 17 to respond to Duncan Parking’s motion to dismiss, and to ascertain the true identity of the corporation that actually entered into the contract with the city.

Starting that same day, April 26, the Taxpayer sought to obtain from the corportion counsel the true identity of the corporation and a copy of the contract for the inspection of parking meters. The Taxpayer had a conversation with an assistant corporation counsel in which he asked whether the corporation counsel would divulge the name of the corporation without the necessity of a subpoena. The Taxpayer was promised that the matter would be looked into and that the Taxpayer would be advised further. Thereafter, the Taxpayer called the corporation counsel’s office on at least two occasions to ascertain the true name of the corporation and to obtain a copy of the contract. On each occasion, the Taxpayer was told that the matter would be looked into and that he would be further advised. Subsequently, the Taxpayer called the assistant corporation counsel a third time and was told that he should write a letter to the purchasing agent of the city requesting the name of the corporation and a copy of the contract. Such a letter was delivered by messenger on May 2. The letter states in part:

“RE: City of Chicago, ex rel. Demetri Konstantelos v. Duncan Parking Meter Maintenance Co., Inc., et al - 79 CH 2238 It is my understanding that you have a copy or copies of the contract regarding the inspection of parking meters by one of the corporations controlled by Jerome Robinson and Ted Mieczynski.
I represent the Plaintiff in the above cause, Demetri Konstantelos. He has brought a taxpayer’s action seeking an accounting for the $270,681.00 paid by the City to the corporation that has the contract. In the suit, we named Duncan Parking Meter Maintenance, Inc. In response to the suit, it has filed an answer and a motion to dismiss. It has denied that it is a party to this contract. On April 26, 1979, Judge Cohen gave the Plaintiff 21 days within which to respond to the motion and ascertain the identity of the corporation that has signed the contract.
For that purpose, I am, by this letter requesting that you furnish me with a copy of that contract.
I would appreciate knowing whether you will voluntarily furnish me with such a copy by May 7,1979. Otherwise I shall have to issue a subpoena.
A copy of this letter is being sent to Mr. Konstantelos and to * * * the Corporation Counsel’s Office.”

After the May 7 deadline, the Taxpayer again called the assistant corporation counsel and was told that he would be advised further regarding the matter. Having received no response, on May 10, the Taxpayer served a deposition subpoena for May 14 on the purchasing agent. However, on May 14, a contract was delivered to the attorney for the Taxpayer with a letter from the corporation counsel. The letter states in part:

“RE: Request for Contract relative to Cause No. 79 CH 2238, City of Chicago, ex rel. Konstantelos v. Duncan Parking Meter Maintenance Company, et al._
In response to your letter dated May 2, 1979, directed to [the] Purchasing Agent of the City of Chicago, requesting a copy of the contract regarding the inspection of parking meters, we are enclosing herewith a copy of said contract.”

However, a review of “said contract” revealed that the contract furnished with the letter was not the correct contract, and it did not name the corporation that had the contract for the inspection of the city’s parking meters.

Finally, on May 17, the last day the Taxpayer had to file a response to Duncan Parking’s motion to dismiss, the assistant corporation counsel supplied the Taxpayer’s attorney with the name of the corporation that had the contract for the inspection of the city’s parking meters, i.e., Duncan Traffic Equipment Company. Thereupon, the Taxpayer set up a motion for May 24 to dismiss Duncan Parking as a defendant, and for leave to file an amended complaint naming Duncan Traffic Equipment Company as a defendant. On that same day, although the city was a party-plaintiff in the Taxpayer’s suit and as such was represented by the corporation counsel, the corporation counsel filed a motion as attorney for defendant Geocaris to extend the time for that defendant to answer the amended complaint.

At that time, the Taxpayer’s attorney again requested the corporation counsel to send him a copy of the contract involving Duncan Traffic Equipment Company’s agreement to inspect the city’s parking meters. The assistant corporation counsel stated that the contract would be furnished. The city did not send the Taxpayer’s attorney the contract, but the corporation counsel filed a separate suit against Duncan Traffic and Robinson. Geocaris is not named as a defendant. The city’s suit states that Duncan Traffic had a contract with the city whereby Duncan Traffic was to inspect, repair and maintain the city’s parking meters. The complaint also states that the contract required Duncan Traffic to make approximately 360,000 inspections of parking meters per month and that the city was to pay Duncan Traffic a unit price per meter per rate of inspection. Although a copy of the contract was not attached to or made a part of the complaint, the complaint states:

“The contract further provides that:
Inspection shall mean the maintenance man on foot shall scrutinize the parking meter examining all external parts for cleanliness, looseness or damage turning handle to test the operative condition of the meter and checking the pedestal for plumb and tightness.
The Contractor shall establish and maintain a system for recording inspection, maintenance and repair service performed on a district and individual meter basis. The Contractor shall furnish daily to the Commissioner of Streets and Sanitation a report showing the districts in which the inspections were made e 6 *. Inspection, repair and maintenance records and material and parts record of the contractor, pertaining to this contract, shall be available for inspection, upon request, by the Commissioner of Streets and Sanitation.”

The city’s complaint also states that records furnished to the city by the First National Bank of Chicago indicate that at least 636 parking meters were not collected during the months of January and February 1979, but that the records submitted to the city by Duncan Traffic indicate that full service was rendered by Duncan Traffic on those same parking meters during January and February 1979, and that the city paid Duncan Traffic for such alleged service. The city’s complaint charges that the services for these 636 parking meters, although paid for by the city, were not performed. The complaint also charges that the inspections and repairs of the city’s parking meters reported by Duncan Traffic for the months of January and February 1979 were not performed by Duncan Traffic, and that the payments made by the city pursuant to the invoices submitted by Duncan Traffic for the months of January and February 1979 included substantial payments for work never performed.

Duncan Traffic and Robinson filed an answer to the city’s complaint which states in part:

“Defendants further state that the extent of Duncan’s contractual obligations to inspect and maintain parking meters is established by the contract and the historic practice of the parties.”

Subsequently, the Taxpayer’s suit and the city’s suit were consolidated for trial. The Taxpayer filed a motion to disqualify the corporation counsel from representing the city as a party-plaintiff because the corporation counsel filed a motion representing defendant Geocaris, and an assistant corporation counsel appeared in court on behalf of defendant Geocaris and moved for an extension of time for said defendant to answer the Taxpayer’s amended complaint. The Taxpayer’s position was that the corporation counsel was representing conflicting interests. The motion was continued, and when the trial court later dismissed the Taxpayer’s suit, the trial court stated that the Taxpayer’s motion to disqualify the corporation counsel was moot.

In addition, defendants Duncan Traffic, Robinson and Mieczynski filed a motion to dismiss the Taxpayer’s suit because the Taxpayer failed “prior to instituting this action, to demand of the proper public officials that the city itself file an action against defendants.” (See People ex rel. Chicago v. Schreiber (1944), 322 Ill. App. 452, 483, 54 N.E.2d 862, 875; People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 691, 370 N.E.2d 78, 81.) The Taxpayer opposed the motion, contending that the statute under which the suit was brought (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 5—1) does not provide that a prior demand upon the municipality is necessary, and in any event, “a demand need not be made where it would be a useless act.” The Taxpayer also contended that “the chronology of events in the instant case amply demonstrates that a demand would be futile.” The city did not join in the motion to dismiss and it did not file a motion to dismiss the Taxpayer’s suit.

On September 27,1979, the trial court granted the motion to dismiss the Taxpayer’s suit solely for the reason that “the taxpayer-plaintiffs did not at any time, prior to the filing of the City’s Complaint for accounting and other relief on May 30, 1979, demand that the City bring suit against Duncan.” Further, the trial court stated:

“The city has filed the Complaint for accounting and other relief as stated before, on May 30, 1979, and the defendants have responded to that Complaint with an Answer. The Answer was filed June fifth, 1979. It appears to meet what is the rather narrow thrust of the [City’s] Complaint.
The [city’s] Complaint alleges in Paragraph Six: Records furnished to the City of Chicago by the First National Bank of Chicago indicate that at least 636 meters located in the meter facilities maintained by the City of Chicago were not collected from during the months of January and February, 1979, despite the fact that meters are to be collected at least once each month. The answer to that is somewhat oblique with respect to whether or not there were 636 meters or more or less that were not serviced during those months, but the Answer does point out — and properly so — that the matter of collection for the meters is not the subject of this lawsuit, that is the subject the Court has been given to understand, by arguments of counsel, of a separate contract with a company apparently wholly owned either by the defendant-corporation here or by its principal bearing a similar, but different name ° °.
[S]ince the issues appear to be rather definitely narrowed, at least based upon the pleadings before me, to alleged failure to inspect at least 636 meters, I am ordering Counsel for the city and for the defendants to meet with the Court in pre-trial conference on Wednesday, October third.
e » #
[Attorney for Duncan Traffic]: May I respectfully question the presence of counsel for the taxpayer-plaintiffs 9 9 * inasmuch as their complaint has been dismissed? Why are they proper participants in the pre-trial conference?
* 0 *
[Attorney for Geocaris]: Just for the record, Your Honor, the Court’s ruling includes the defendant, Geocaris, in the dismissal.
THE COURT: Of course.
[Attorney for Duncan Traffic]: Then the pre-trial conference Your Honor, then will be between the Corporation Counsel’s office and counsel for the defendants, if I understand your latest ruling correctly.
# # #
THE COURT: [T]he Court isn’t going to make any commitment at this time. I may invite several people to that conference.”

After several pretrial conferences between the city and Duncan Traffic and Robinson, on October 18, 1979, within 21 days after the Taxpayer’s suit was dismissed, the city settled its suit for a total payment of $5,000 by Duncan Traffic and Robinson. A stipulation and settlement agreement between the city and Duncan Traffic and Robinson was filed which provides that the $5,000 settlement “constitutes a resolution of all issues of dispute between and among the parties which were the subject of this cause of action.” Neither the Taxpayer nor his attorney attended any of the pretrial conferences, and they were not given any details of the settlement.

Defendants first contend that the Taxpayer’s suit was properly dismissed because the Taxpayer did not make a demand upon the city to bring suit against defendants prior to filing suit. In addressing this issue, we must recognize that the Taxpayer’s complaint makes grave allegations and charges which, if true, demand that the taxpayers’ interests be satisfactorily pursued and protected to fulfill the purpose of the statute under which the suit is brought. (See Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 426 N.E.2d 860.) The fact that at least some of these allegations and charges are not frivolous is demonstrated by the fact that the city filed its own suit, making generally the same allegations and charges as the Taxpayer. The city alleges and charges that:

1. The “agreement between the city of Chicago and Duncan Traffic Equipment Company requires Defendants to make approximately 360,000 inspections of parking meters per month” and that the “City of Chicago pays Defendants a unit price per meter per rate of inspection.”
2. The records “furnished to the city of Chicago by the First National Bank of Chicago indicate that at least 636 meters 090 were not collected during the months of January and February, 1979, despite the fact that meters are to be collected at least once each month.”
3. The “repair and maintenance records submitted to the city of Chicago by defendants for the same metered facilities for the months of January and February, 1979, indicate that full service was rendered by defendants for these meters” and that the city “was invoiced and paid for repair and maintenance of said metered facilities which defendants reported it performed during this two-month period.”
4. The “City of Chicago paid defendants for the inspection and maintenance of at least 636 meters from which collections, although required, were not made.”
5. The “inspection and repairs of the meters in the metered facilities reported by the defendants for the months of January and February, 1979, were not performed by defendants.”
6. The “payments made pursuant to the invoices submitted to the City of Chicago by the Defendants for the months of January and February, 1979, included substantial payments for work never performed.”

The Taxpayer’s complaint makes generally these same charges, and moreover, alleges that the city was aware that the payments made pursuant to the invoices included substantial payments for work never performed. Thus, assuming the facts alleged by the Taxpayer and the city are true, although the city had knowledge of the facts, it took no action against Duncan Traffic until after the Taxpayer’s suit was filed.

Also, the Taxpayer’s suit names the deputy commissioner of the Department of Streets and Sanitation as a defendant and alleges that he was in charge of approving invoices and authorizing payments for work performed by Duncan Traffic under the terms of the contract with the city, that he approved and authorized the payment of invoices for work never performed by Duncan Traffic, that he knew that the work was not and could not have been performed, that the invoices submitted were false and contained material misrepresentations, and that the approval and payment thereof was illegal and constituted a fraud upon the taxpayers of the city of Chicago. Notwithstanding these allegations and charges in the Taxpayer’s suit, the city’s suit omits naming the deputy commissioner of the Department of Streets and Sanitation as a defendant.

In addition, the Taxpayer’s suit was filed on April 12,1979. The city’s suit was filed on May 31, 1979. The city filed a seven paragraph request for production of documents. No objections were filed by defendants, but there is nothing in the record to suggest that defendants ever complied with the request, and no documents were ever submitted to the plaintiff Taxpayer although the suits were consolidated. The Taxpayer also filed a request for production of documents. Defendants filed written objections to the Taxpayer’s request, and the suit was dismissed without the production of any documents by defendants. No depositions were taken, and there was no other discovery.

The Taxpayer’s suit was dismissed on September 27, 1979, slightly more than 5 months after the complaint was filed. Within 21 days thereafter, the city’s suit was on trial and was settled for $5,000 between the city and Duncan Traffic and Robinson, without any discovery except as otherwise stated herein. It is hard to reconcile the swift disposition of this entire matter for the sum of $5,000 without depositions or any meaningful discovery when the Taxpayer charges that the defendants were paid $270,681 by the city for work they never performed, and the city’s own complaint charges “that the payments made pursuant to the invoices submitted to the City of Chicago by the defendants for the months of January and February, 1979, included substantial payments for work never performed.” (Emphasis added.)

Under the circumstances, on the issue of whether the Taxpayer’s suit should have been dismissed because the Taxpayer did not make a demand upon the city to sue defendants prior to filing suit, we believe that what the court stated and held in Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 426 N.E.2d 860, is applicable here. In that case, a taxpayer’s suit was brought by the taxpayer, O’Keeffe, on behalf of the MSD against Ingram and other related defendants. The suit was settled. As part of the settlement, the MSD agreed not to appeal the fee award provided in the settlement. Hartunian, a taxpayer, appealed the fee award on behalf of the MSD. O’Keeffe had not given the MSD notice or demand prior to filing suit on behalf of the MSD as a taxpayer, and Hartunian contended that therefore O’Keeffe did not have standing to sue the MSD. The court stated and held:

“The crux of Hartunian’s argument, however, is that O’Keeffe neither asked the MSD to sue Ingram nor demonstrated that such a request would have been futile. * * *
0 ” * When the MSD finally filed a motion to intervene and dismiss O’Keeffe, the trial court appropriately held a hearing (cf. DePinto v. Provident Security Life Insurance Co. (9th Cir. 1963), 323 F.2d 826, cert. denied (1964), 376 U.S. 950, 11 L. Ed. 2d 969, 84 S. Ct. 965) and appropriately decided on the basis of the whole record not to eliminate the taxpayer from the suit. Green v. Jones (1924), 164 Ark. 118, 124, 261 S.W. 43, 45. Cf. Palmer v. Morris (5th Cir. 1965), 341 F.2d 577 (per curiam).
0 0 0
0 0 0 We therefore defer to the trial court’s determination that keeping O’Keeffe in the case helped assure that the public interest in the case was fully represented. # # °
A necessary predicate to the trial court’s conclusion, which we have now approved, that O’Keeffe had standing was that there were grounds to believe that the MSD was inadequately protecting the public interest.” 85 Ill. 2d 458, 468-70, 426 N.E.2d 860.

In the present case, the public interest was likewise entitled to be fully represented. On the basis of the whole record as demonstrated by the facts previously stated, there were grounds to believe that the city was inadequately protecting the public interest in the matter. Therefore, the Taxpayer should have remained in the case, and his suit should not have been dismissed, even though the Taxpayer, like the taxpayer in O’Keeffe, had not made a demand to sue defendants prior to filing suit as a taxpayer.

Defendants next contend that the Taxpayer lacks standing to appeal from the $5,000 settlement agreement between the city and defendants because the Taxpayer was not a party to the settlement. This contention overlooks the nature of the Taxpayer’s interest in the controversy. The Taxpayer’s interest in the litigation is grounded upon his status as a taxpayer, and it is his equitable interest as a taxpayer in the public property which is allegedly being illegally disposed of that determines his standing to maintain the action and the appeal. This is made very clear in the O’Keeffe case. In that case, Hartunian, the Taxpayer on appeal, was not a party in the trial court in any capacity and had not even intervened in the trial court. Thus, the Taxpayer’s position in the present case is stronger than Hartunian’s position in the O’Keeffe case. In holding that Hartunian had standing to appeal the settlement between MSD and Ingram, the court stated:

“The appellate court held, however, that Hartunian, as a non-party, lacked standing to appeal because he was only ‘indirectly aggrieved in some indefinite manner in common with taxpayers generally.’ (85 Ill. App. 3d 859, 866.) This holding, resting upon the nature of the taxpayers’ interest in the controversy, contravenes our holding in Paepcke v. Public Building Com. (1970), 46 Ill. 2d 330, adopting, on the standing issue, the dissent filed in Droste v. Kerner (1966), 34 Ill. 2d 495. In that dissent it was stated that a taxpayer’s interest in the litigation was grounded ‘upon his status as a taxpayer, and it is his equitable interest, as a taxpayer, in the public property which is being illegally disposed of that determines his standing to maintain the action.’ (34 Ill. 2d 495, 511 (Schaefer, J., dissenting).) In this case, the taxpayers have an equitable interest in the monetary recovery from Ingram, which was diminished by the award of attorney fees to counsel.” 85 Ill. 2d 458, 475-76, 426 N.E.2d 860.

Likewise, in the present case, the taxpayers have an equitable interest in the monetary recovery from Duncan Traffic if the city wrongfully paid Duncan Traffic for work which was never performed in January and February 1979. We therefore conclude that the Taxpayer had standing to appeal the settlement.

Next, defendants contend that the city bound all taxpayers by its settlement agreement with Duncan Traffic and Robinson, and therefore the Taxpayer’s appeal is moot. Ordinarily, courts favor settlements, and the parties are bound by their settlement agreements. However, an exception exists for settlement agreements which are contrary to public policy. We conclude that, under the circumstances of this case, public policy dictates that the $5,000 settlement agreement between the city and Duncan Traffic and Robinson should not be enforced or bind the taxpayers. Cf. O’Keeffe, 85 Ill. 2d 458, 470-75, 426 N.E.2d 860.

Here, although the Taxpayer charged that as a result of an illegal conspiracy the city paid Duncan Traffic $270,681 for “not inspecting” 34.974 meters, the city in swift fashion, with no depositions or meaningful discovery, settled the matter with Duncan Traffic and Robinson for only $5,000. Significantly, the whole record, including statements by the trial judge, demonstrates that the city only proceeded on the basis that Duncan Traffic was paid for “not inspecting” 636 meters. During oral argument, the attorney for Duncan Traffic admitted that the settlement was based solely on the question of the payment for work never performed in the reported “inspection” of the 636 meters. However, the Taxpayer charges that the city unlawfully paid Duncan Traffic $270,681 for “not inspecting” 34.974 meters. Thus, in the settlement agreement, the taxpayers were not fully and adequately represented as to the cause of action charged in the Taxpayer’s suit.

Under the circumstances, the $5,000 settlement agreement between the city and Duncan Traffic and Robinson should not be enforced or bind the taxpayers. On this point, what the court stated and held in O’Keeffe is apposite:

“Several sources of public policy persuade us that the [settlement] agreement to forgo an appeal should not be enforced here. * * « [i’jhe taxpayers were not adequately represented at the fee-determination proceeding. 6 0 # [T]his court has a policy of refusing to enforce the terms of settlement agreements which disadvantage unincluded parties.
# # #
Public policy is traditionally found primarily in the Constitution and statutes and only secondarily in case law. Nevertheless, in Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, this court declined to enforce a settlement agreement according to its terms where such enforcement would have violated the longstanding policy against double recoveries. The prohibition against double recovery is one found in our case law. The companion case, Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, noted, in addition, the problem with settlement agreements that prejudice unincluded parties.
Here, the advance agreement not to appeal the attorney fees award was made by parties inadequately representing absent taxpayers. It was intended, nevertheless, for the taxpayers to have been bound by the judgment entered. They had no advance notice of what the settlement entailed or how they could register a protest. * * *
# O #
For the foregoing reasons, we decline to enforce the [settlement] agreement not to appeal.” 85 Ill. 2d 458, 471-74, 426 N.E.2d 860.

In the present case, for the reasons previously stated, there are grounds to likewise conclude that the taxpayers were not fully and adequately represented in the settlement agreement. Since courts have a policy of refusing to enforce the terms of settlement agreements which disadvantage unincluded parties, the $5,000 settlement agreement between the city and Duncan Traffic and Robinson should not be enforced or bind the taxpayers.

Defendants also claim that the Taxpayer’s suit should be dismissed “for failure to allege that the purportedly illegal expenditures will create an increase in plaintiffs’ taxes.” We disagree with defendants’ contention. The Taxpayer’s amended complaint alleges that defendants received $270,681 from the city for work not performed and demands an accounting. Accepting the allegations as true for purposes of the motion to dismiss, the allegations are sufficient to conclude that the recovery of the $270,681 would reduce pro tanto, or to some extent, the amount of taxes which the Taxpayer and other taxpayers would otherwise have to pay.

Defendants also contend that the Taxpayer’s suit should be dismissed because the Taxpayer did not allege that the subject invoices were paid in violation of an ordinance or in excess of statutory authority. However, the Taxpayer’s amended complaint alleges that the defendants submitted sworn vouchers that were paid by the city for work not performed with full knowledge of the facts. We conclude that if the allegations are true, the city paid the invoices “without authority of law” within the meaning of the statute under which the Taxpayer’s suit was brought.

Finally, defendants contend that the Taxpayer and the city should not be jointly litigating the case against defendants. We disagree. In O’Keeffe, the court stated in response to a similar contention:

“We therefore defer to the trial court’s determination that keeping [the Taxpayer] in the case helped assure that the public interest in the case was fully represented. We also wonder, as did the trial court, what the obstacle was to the MSD and O’Keeffe jointly litigating the case against Ingram, once the MSD decided that it, too, was interested in pursuing Ingram for the alleged Purchasing Act violations.” 85 Ill. 2d 458, 470, 426 N.E.2d 860.

Under the circumstances in the present case, we find no obstacle to the Taxpayer and the city jointly litigating the case against defendants. On the contrary, keeping the Taxpayer in the case should help assure that the public interest will be fully represented.

Accordingly, the order dismissing the Taxpayer’s suit is reversed. The settlement agreement between the city and Duncan Traffic and Robinson is not enforceable and does not bind the taxpayers of the city of Chicago, and the order dismissing the City’s suit pursuant to the settlement agreement is reversed. The case is remanded for further proceedings.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.

       The treasurer of the city of Chicago was named as a nominal defendant only. Neither the complaint nor the amended complaint makes any allegation of wrongdoing against the treasurer of the city of Chicago,

       Subsequently, a private attorney appeared on behalf of defendant Geocaris.

       The First National Bank of Chicago apparently counts the collections given to it and turns the money over to the city along with its records for the money collected.

       In its answer, Duncan Traffic affirmatively states that collection from the meters is not the contractual obligation of Duncan Traffic. However, the record suggests from statements made by the trial court that there is a separate contract for the meter collections between the city and either Duncan Parking or another company “apparently wholly owned either by the defendant-corporation here or by its principal bearing a similar, but different name * °

       The Taxpayer takes the position that since the statute under which the suit was filed does not state that a demand must be made upon the municipality prior to filing suit, no prior demand is necessary. The Taxpayer attempts to distinguish People ex rel. Chicago v. Schreiber (1944), 322 Ill. App. 452, 483, 54 N.E.2d 862, 875, and People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 691, 370 N.E.2d 78, 81, which hold that a taxpayer must make a prior demand upon the municipality, on the basis that those cases are common law actions and do not involve actions brought pursuant to a statute that does not state that a prior demand must be made. Also, since the statute itself is silent as to the necessity of a prior demand, questions arose during oral argument as to the person or persons upon whom the demand must be made, what the demand must include, how long before suit is filed the demand must be made and whether the demand must be in writing.

       At oral agrument, the attorney for the corporation counsel’s office argued solely on the issue of the standing of the Taxpayer to maintain the action because he did not make a prior demand upon the city to sue the defendants, and he adopted the oral argument of Duncan Traffic on the other issues. However, in the trial court, the city did not file a motion to dismiss the Taxpayer’s suit for any reason, and the city did not join in Duncan Traffic’s motion to dismiss the Taxpayer’s suit.

       The statute provides: “A suit may be brought by any taxpayer * * * against any person to recover any money or property belonging to the municipality, or for any money which may have been paid, expended or released without authority of law.” Ill. Rev. Stat. 1979, ch. 24, par. 1-5-1.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    JEROME R. PRASSAS et al., Plaintiffs-Appellees, v. NICHOLAS W. PRASSAS & CO., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 81-1001
    Opinion filed November 18, 1981.
    Rehearing denied January 7, 1982.
    Robert L. Byman and Julie C. Reynolds, both of Jenner & Block, of Chicago, for appellants.
    Phillip E. Couri and John D. Brennan, both of Couri & Economas, of Winnetka, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Jerome R. Prassas and Philip G. Prassas, brought this action to obtain information with regard to certain properties, including the Woodland Heights Shopping Center, in which' both plaintiffs and defendants, Nicholas W. Prassas and Nicholas W. Prassas & Co., have an interest. Plaintiffs also sought to enjoin defendants from making extraordinary expenditures on those properties without plaintiffs’ prior written approval. Defendants appeal from an interlocutory order granting plaintiffs’ motion for the appointment of a receiver to manage the shopping center. Defendants contend that the trial court erred in appointing a receiver absent a clear showing of fraud or an imminent danger of dissipation of the business assets. Defendants also argue that the court erred in denying them a full hearing and in failing to comply with statutory bond requirements.

Prior to 1974, defendant corporation was known as George W. Prassas & Co. In 1961, the corporation entered into a joint venture agreement with Streamwood Home Builders pursuant to which George W. Prassas & Co. developed and operated the shopping center in question. Title was held in a land trust with George W. Prassas & Co. as sole beneficiary. Prior to his death in 1966, George W. Prassas owned 51 percent of the stock of the corporation. His brother, defendant Nicholas Prassas, owned 49 percent. At his death George left 1 percent to defendant and 50 percent to the George W. Prassas trust for the benefit of his plaintiff sons. Thereafter stock ownership was divided equally between defendant and the George W. Prassas trust.

On August 12, 1974, plaintiffs entered into a partial liquidation agreement with George W. Prassas Co. which provided that the company name be changed to Nicholas W. Prassas & Co. Plaintiffs agreed to exchange all their stock for $326,000 in cash and “undivided one-half of the Company’s rights and interests” in various commercial properties, including the shopping center in question. The agreement further provided that plaintiffs’ portion of the corporation’s interest in the shopping center “shall be deemed to have been assigned by the Company [to plaintiffs] * * * but * * * [plaintiffs] shall not thereby become a partner * * Subsequent to this agreement the properties were managed solely by defendant Nicholas.

On August 17, 1977, plaintiffs filed suit seeking to obtain certain financial and operational information which Nicholas had been unwilling to share with them and to enjoin extraordinary expenditures by Nicholas in connection with the properties absent plaintiffs’ prior written approval. Plaintiffs asserted that defendant Nicholas had improperly withheld funds to which they were entitled and requested the appointment of a receiver to manage the properties during the pendency of the action. Defendants countered that the liquidation agreement entitled plaintiffs to a mere economic interest in one-half the proceeds received by defendant corporation in connection with the properties. Defendants maintain that the plaintiffs have no right to veto expenditures or to acquire information beyond that pertaining to their own economic interest.

At the hearing on plaintiffs’ motion for the appointment of a receiver to manage the shopping center, Nicholas testified as an adverse witness. He stated that he had withheld from plaintiffs money owed by plaintiffs to a bank and then had paid the bank directly. He also withheld an additional $5000 in anticipation of a subsequent quarterly payment to the bank. While Nicholas stated that he was entitled to hold the moneys, defense counsel expressed a willingness to pay plaintiffs and later seek reimbursement in court if such payment would avoid the appointment of a receiver. Nicholas also waited four years to advise plaintiffs of their share of a condemnation award; he had been seeking a larger award and held the funds until the account was final. As to the allegations that information was withheld, Nicholas asserted that he provided plaintiffs with semi-annual accountings which showed income and disbursements and that such accountings were all that were required. Nevertheless, when the court expressed an intention to appoint a receiver, defense counsel offered to provide plaintiffs with whatever information the court considered reasonable.

After Nicholas testified as an adverse witness, the court indicated that it had heard sufficient testimony and was prepared to enter some kind of order unless the parties settled their dispute. The hearing was continued twice for this purpose. When the parties failed to settle the matter, defense counsel stated that the appointment of a receiver would be detrimental because a sale of the property was being negotiated. Counsel also requested a full hearing, but the court denied the request and a receiver was appointed.

A motion for the appointment of a receiver rests in the sound discretion of the trial court. (Steinwart v. Susman (1968), 94 Ill. App. 2d 471, 238 N.E.2d 200.) Yet, the appointment of a receiver is an extraordinary and drastic remedy to be exercised with great caution. (Bagdonas v. Liberty Land & Investment Co. (1923), 309 Ill. 103, 140 N.E. 49; Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610, 386 N.E.2d 405.) The standards by which the appointment can be justified are exceptionally stringent. It is appropriate only when dissension, fraud, misconduct or mismanagement exist which make it impossible for the business to continue or to preserve its assets. Bagdonas v. Liberty Land & Investment Co.

That there is dissension between the parties in the present case is beyond question. Furthermore, it was established that Nicholas had refused certain information and had withheld certain funds. What was not determined was whether defendant had a right to do so. Even if it were shown that Nicholas’ acts constituted misconduct, however, neither misconduct nor dissension alone can justify the appointment of a receiver. It must be shown that the dissension or misconduct made it impossible for the business to continue to preserve its assets (Duval v. Severson (1973), 15 Ill. App. 3d 634, 304 N.E.2d 747), or created a danger that the property be placed beyond the jurisdiction of the court. (Hurst v. Papierz (1973), 16 Ill. App. 3d 574, 306 N.E.2d 532.) No evidence was presented nor were allegations made by plaintiffs which would indicate the assets were in jeopardy. On the contrary, Nicholas testified that the shopping center was operating at a profit. Although the possibility of a sale of the shopping center could infer a danger that the property be placed beyond the court’s jurisdiction, such a result could be prevented by less drastic means. The appointment of a receiver is warranted only where there is no other adequate means to secure the desired result. Poulakidas v. Charalidis.

Plaintiffs contend that the cases which set such stringent standards for appointment of a receiver are distinguishable because they involved corporate assets and dissolution was sought. The rationale behind the stringent standards, however, is based neither on the nature of the business relationship between the parties nor on the ultimate remedy sought. Rather, it stems from the court’s recognition that its power to appoint a receiver is in derogation of the fundamental property right of the legal owner of property to possession thereof. (Bagdonas v. Liberty Land & Investment Co.) Even where the appointment of a receiver is temporary and for the limited purpose of preserving the status quo pending the outcome of the suit, these rigid standards must be applied. (Firebaugh v. McGovern (1949), 404 Ill. 143, 88 N.E.2d 473; Poulakidas v. Charalidis.) The trial court here erred in appointing a receiver for the shopping center.

In view of our holding, it is unnecessary to consider defendants’ other contentions.

For the reasons stated, the order of the circuit court of Cook County appointing a receiver is reversed.

Order reversed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON McNAIR, Defendant-Appellant.
    First District (1st Division)
    No. 80-593
    Opinion filed November 23, 1981.

      Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Sharon McNair (defendant) was found guilty of conspiracy to commit escape (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 2) and also of aiding prisoners to escape (Ill. Rev. Stat. 1973, ch. 38, par. 31 — 7(b)). She was sentenced to seven years. She appeals.

Our examination of the entire record had convinced us the proof of guilt is sufficient beyond any reasonable doubt, and actually overwhelming. The record shows:

Michael McNair and Bobby Lewis were indicted during 1974 for burglary, several rapes, armed robbery, armed violence, unlawful restraint, and unlawful use of weapons resulting from a home invasion. Bond for Michael McNair was fixed at $250,000 and for Bobby Lewis at $100,000. The cases were pending in the courtroom of Honorable Albert S. Porter, judge of the circuit court. The cases were called on a number of occasions. Defendant was present in court at each of these times. Judge Porter never held any hearing on a motion to reduce these bonds and never entered any order for reduction. During March of 1975 a deputy clerk in Judge Porter’s courtroom noticed more than 25 bond reduction slips, referred to as “Form 199,” were missing. He reported this to his supervisor.

On March 19, 1975, Eddie Hoskins, a deputy clerk of the circuit court, tendered a number of these bond reduction forms to the supervisor of the Cook County Department of Corrections. These various documents showed bond for Michael McNair reduced from $250,000 to $1500 and bond for Bobby Lewis reduced from $100,000 to $1000. The cases of these men had been called in open court that day and continued by agreement. The two men read and signed their bonds. They left the jail in company of the defendant.

The evidence showed all of the documents upon which the release of these men was predicated were spurious. None of these documents had been prepared by Judge Porter or by his clerk. A white woman had ordered the rubber stamp of Judge Porter’s signature during January of 1975 from Utility Stationery store. The police found on a dresser in the apartment occupied by defendant, Michael McNair and Bobby Lewis, copies of the bonds actually signed by the two men upon which their releases were obtained, originals of the spurious bond reduction slips, the false rubber stamps, and a Utility Stationery paper bag. A different colored ink from the one used by Judge Porter appeared on these documents.

Expert testimony identified the various documents found on these premises. The expert established the documents did not contain imprints by Judge Porter’s stamp but did contain the imprint of the stamps found on the dresser. The handwriting on the Form 199 bond reduction slips was not that of the Judge’s regular clerk or of the clerk who worked in Judge Porter’s courtroom on the date of the release of the prisoners.

Defendant had been present every time the case against McNair and Lewis had been called, even including days upon which they did not appear. She had visited them in jail. Defendant and Michael McNair were married several days after his release. The apartment in which these items were found, number 2A at 6230 North Hoyne Avenue, had been rented by the defendant. The bonds for release of the prisoners had been posted by a woman who had listed a telephone number thereon. This number was traced to the same apartment rented by defendant under the name Sharon Marshall and occupied by her, her husband and Lewis.

Additional portions of the testimony will be described in detail as required.

The State contends preliminarily defendant failed to file a written motion for new trial (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1(b)) so that most, or all, of the contentions raised in defendant’s brief have been waived. People v. Adkisson (1980), 83 Ill. 2d 1, 7, 413 N.E.2d 1238.

The record shows counsel for defendant made an oral motion for new trial. The prosecutor made no specific objection to the use of the oral motion but merely told the court that the State rested on responses made during trial. Since the State failed to object specifically to the oral motion and failed to request that the grounds for new trial be specified in writing, we find no waiver as a result of defendant’s oral motion. People v. Boyd (1980), 88 Ill. App. 3d 825, 852, 410 N.E.2d 931, appeal denied (1981), 82 Ill. 2d 586.

I

The defendant filed a written motion to quash her arrest and to suppress evidence taken by the police from her apartment. Defendant testified simply that on April 2, 1975, at 4:30 a.m. the police entered her apartment without a warrant and placed her under arrest. The State introduced evidence showing that, commencing March 24, 1975, the police were investigating the homicide of a person named Roger Hickman. On that date police found Hickman’s body in a room at the Tropicana Motel. The deceased had been a witness for the State in still another homicide case. The body of the deceased had been dismembered. The police were informed that the room where the remains were found had been rented the previous evening by a white female generally described in a manner approximating the defendant. In addition, a resident of the motel had seen two black men leaving the room with a white woman. The general descriptions of these two men were close to Bobby Lewis and Michael McNair.

The police received anonymous information that the woman who had rented the motel room was married to a black person who had recently left the county jail. The name of “Ruby Black” was given to the police in this connection. The informant also told the police a person known as “Ruby Black” might be living in the approximate area of the Hoyne Avenue apartment rented by defendant.

The police were then advised Michael McNair had been released on forged bond slips and on bail furnished by a young white female; Michael McNair had a girlfriend named Sharon and his street name was “Black Ruby.” A telephone number had been written on the spurious release documents. Further investigation from this disclosure led the police to the apartment on Hoyne Avenue. The police also found a similarity of handwriting between the registration card used for the room at the Tropicana Motel and the lease application for the Hoyne Avenue apartment. The police ascertained a young white woman had rented the apartment. She resembled a composite sketch of the woman who had rented the motel room.

On April 1,1975, about 10:30 p.m. the Hoyne Avenue apartment was placed under surveillance. The police had arrest warrants for Michael McNair and Bobby Lewis. At 1 a.m. a white female and a black male entered the building. The man conformed to the general description of one of the men who had left the Tropicana Motel with the young woman. The lights in apartment 2A of the building went on. About 3 a.m. the same man left the building. It was Bobby Lewis. He was placed under arrest. The police obtained a key to the apartment from Bobby Lewis. They simultaneously called the apartment to announce their office and impending entry and made entry with the key. Defendant was found standing in the living room there. At her feet police found a gun, assorted cartridges “and a quantity of narcotics.” Defendant was arrested. A police officer testified that as soon as he entered the apartment he saw defendant was wearing wire-rimmed glasses which conformed to the description of the young lady who had rented the Tropicana room and she resembled a composite sketch of that same person.

At the same time, the police observed a dresser in the bedroom. On top of the dresser, or in an open drawer, they saw in plain view a bond receipt, two No. 199 bond reduction forms, a paper bag of the Utility Stationery store, a stamp pad, rubber stamps bearing the names of Judge Porter and his clerk and a date stamp. These were the articles later introduced in evidence and above described. Defendant was then arrested. On April 2,1975, the police officers were furnished with a search warrant in this regard and they then took possession of the items in question. The police remained in the apartment until they had obtained these documents and for some time thereafter. This was because of an unusual snow storm which made traveling difficult. The trial judge denied the motion to quash the arrest and suppress the evidence.

Probable cause or reasonable grounds to arrest depend upon whether “ ‘the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.’ ” (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564, quoting from People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356.) The conclusion reached by the trial court may not be disturbed by this court unless we find it “manifestly erroneous.” (People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N.E.2d 280, and cases there cited.) A lesser standard is required to support a finding of probable cause than would be necessary for a conviction. Courts “are not disposed to be unduly technical” in this regard. Robinson, 62 Ill. 2d 273, 277.

In the instant case, the officers were aware of the close association between defendant and Michael McNair. Police knew the room in the Tropicana Motel, where the gory homicide was committed, had been rented by defendant. The police knew Michael McNair and Bobby Lewis had been bailed out by a white young lady and Michael McNair was friendly with a young lady named “Sharon.” A resident at the motel told the police he saw two male blacks and a white female leaving the room. The police received an anonymous telephone call to the effect that the woman who rented the motel room was married to a black person recently released from the county jail. The police knew about the rape, home invasion and robbery allegedly committed by McNair and Lewis and learned they had been released on bail on March 19.

In addition, the police knew their release had been effected by forged bond documents upon which the same white woman had written a telephone number. This number was traced to the apartment in question, No. 2A at 6230 North Hoyne Avenue. The police found a young white woman had rented this apartment. The building manager advised that this woman resembled a composite sketch, shown her by the police, of the woman who rented the motel room. The police noted clear similarities between the handwriting on the rental application and the motel registration card. The police noted a black male resembling Bobby Lewis and the white woman entered the apartment building on Hoyne Avenue and shortly turned on the lights in apartment 2A. The police saw the incriminating documents on the dresser in the apartment in plain view. In our opinion, the able and experienced trial judge acted with complete legal propriety when he found the police had probable cause to arrest the defendant.

Defendant carries the argument further by contending that the police entered her apartment without a warrant and without exigent circumstances so that the arrest was unlawful despite any showing of probable cause. Defendant cites cases such as Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, which has been followed and applied in other decisions including People v. Rembert (1980), 89 Ill. App. 3d 371, 411 N.E.2d 996. The various factors required to show exigent circumstances are fully discussed in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.

In our opinion, upon consideration of the following factors, we conclude there were sufficient exigent circumstances here to justify the arrest of defendant even without considering the need for a warrant:

(1) The arrest was made a short time after the police were able to ascertain the residence of defendant and to work out the many details which linked her to the dismemberment murder and to the unlawful release of McNair and Lewis from custody.

(2) We do not find deliberate or unjustified delay by the police. The clever manner in which McNair and Lewis were released and the unusual precautions used by defendant to conceal her identity and whereabouts were responsible for any slight delay between commission of the crime and the arrest of defendant.

(3) The police did not fear that the defendant herself was armed. A great deal of fear was generated by the identity and conduct of the close associates of defendant including her husband. When arrested, Michael McNair was armed with a .45-caliber pistol which he had cocked. Upon entry into the McNair apartment police found a .357 Magnum revolver. The circumstances of the home invasion and rape and of the dismemberment homicide showed the police the character of the violent quarry they were stalking. There was a definite need for prompt police action in this regard.

(4) As shown, the evidence of probable cause is crystal clear.

(5) After observing the defendant and Lewis enter the building and lights going on in apartment 2A, the police knew with certainty that defendant and her associate were on the premises.

(6) There is a strong element of consent here in that Lewis, who had been provided with a key to the apartment given to him by one of the occupants, surrendered the key to the police so that they made a peaceful entry. In any event, the evidence shows the entry was peaceful.

Upon this basis, the conclusion is manifest that even if the police had no warrant for the arrest of defendant, their entry was proper because of exigent circumstances. Further, entirely aside from the issue of exigency, the arrest of defendant was legally justified. It must not be forgotten that the police had arrest warrants for Lewis and McNair. McNair was one of the occupants of the apartment equally with his wife, the defendant. As a general matter, “an arrest warrant is the desired means by which an individual’s right to privacy is protected.” (People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608.) Consequently, the police were fully justified in entering the apartment to arrest Michael McNair. Since McNair was not immediately visible in the living room, it was the duty of the police under the warrant to determine if he was present in the bedroom. Upon entering therein they did not find him, but they saw immediately in plain view on the dresser the rubber stamps with the name of the judge and copies of other papers which served to complete the chain of evidence against defendant as the mastermind and perpetrator of the unlawful release of McNair and Lewis from custody. In this situation the evidence was not discovered as the fruits of a search. On the contrary, “it is not a search to observe that which is in open view.” People v. Berg (1977), 67 Ill. 2d 65, 68, 364 N.E.2d 880.

Upon receiving this information, the police made application for and shortly obtained a search warrant providing for search of the apartment which was executed shortly thereafter. Any delay in obtaining the search warrant after the police had observed the evidence in plain view resulted from blizzard conditions which made traveling difficult. We conclude the trial judge properly denied the motion to quash the arrest and to suppress the evidence.

II

Defendant contends that since McNair and Lewis did not know their release was illegal, there was no escape. Thus, defendant did not aid in any escape. Defendant cites People v. Dolatowski (1968), 94 Ill. App. 2d 434, 237 N.E.2d 553, in which a defendant was completely intoxicated. This court held he was unable to formulate the specific intent required for escape. The pertinent statute provides that a person charged with the commission of a felony “who intentionally escapes from any penal institution” is guilty of escape. (Ill. Rev. Stat. 1979, ch. 38, par. 31—6(a).) However, the basic defect of defendant’s contention is that the defendant here is not charged with the crime of escape but, as above shown, with conspiracy and with aiding an escape. No sentence was imposed by the trial court in connection with the latter offense.

It follows that the guilt of Michael McNair and Bobby Lewis of the crime of escape depends upon whether they left prison with knowledge of the commission of the fraud. Their knowledge or intent was a question of fact for the jury. The jury disposed of the issue by finding defendant guilty beyond a reasonable doubt.

The guilty knowledge of McNair and Lewis has been fully proved beyond any type of doubt. It is impossible to conceive that these men who knew very well that the bail required of them was $350,000, or a cash deposit of $35,000, suddenly found without any hearing that their bail was reduced to a total of $2500 requiring a cash deposit of $250. These men saw the bond slips, filled in their names and addresses and signed the spurious documents showing an amazing bond reduction. In addition, each of them wrote a false address on the bail slips. However, this entire point is meaningless.

The trial court sentenced defendant only for conspiracy. The State contends this court should remand the case for imposition of sentence on the conviction of aiding escape. (See People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540.) We reject this contention. Defendant was released from custody on November 21,1978, because she had then served her sentence according to law. Under these circumstances, we will not remand the cause but we will instead vacate the incomplete judgment of guilty of the crime of aiding escape. See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.

III

Defendant contends the State failed to prove her guilty beyond a reasonable doubt of conspiracy to permit escape. It was not necessary for the State to prove that the conspirators actually met and entered into a specific agreement. (People v. Jones (1979), 75 Ill. App. 3d 214, 224, 393 N.E.2d 1132, cert. denied (1980), 445 U.S. 968, 64 L. Ed. 2d 246, 100 S. Ct. 1662, and cases there cited.) This record discloses circumstantial evidence from the facts and circumstances which prove the common criminal purpose.

In proving conspiracy the State need not exclude every reasonable hypothesis consistent with innocence. In People v. Foster (1979), 76 Ill. 2d 365, 374, 392 N.E.2d 6, the supreme court restated the accepted rule of law quoting People v. Bernette (1964), 30 Ill. 2d 359, 367, 197 N.E.2d 436:

“ ‘The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.’ ”

The facts above stated prove guilt beyond any reasonable doubt. The verdict of the jury is completely supported by the evidence. See People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d 666.

IV

Defendant made an oral motion in limine that no mention be made of the fact defendant is white and McNair and Lewis were black. After discussion with counsel, the trial court stated these facts “may come out during the course of the trial” but, the court added, there should “not be certainly a direct reference to the fact” that the two men are black. The able trial judge is to be commended for his zeal in making certain that the defendant received a fair trial.

During the testimony of one of the officers, reference was made to the street name, or nickname, of “Black Ruby” or “Ruby Black” as applied to Michael McNair. Counsel for defendant moved for a mistrial. The trial judge denied the motion for mistrial. We approve of this ruling. In our opinion, it was necessary for the State to show the use of this name and we see no error in permitting it. Furthermore, this testimony was not a violation of the directive of the trial court. Defendant was not prejudiced by this testimony.

While this motion for mistrial was being heard, the conversation between the court and the attorneys turned to additional testimony by the officer. The officer had testified, in describing the events prior to the arrest of the defendant, that as he came into the living room area, he saw defendant standing there. The officer added, “There was a loaded .357 Magnum revolver on the floor near her foot. There was a small bag of miscellaneous caliber cartridges, plastic bag, clear plastic bag, as I recall, and a small quantity of narcotics on the living room floor.” No objection to this testimony was made by defendant at that time.

After additional questions had been answered, a recess was had and the trial court then ruled on the issue of violation of the order entered on the motion in limine. The trial judge particularly alluded to the police officer’s testimony regarding the narcotics. Counsel for defendant then adopted the argument concerning the narcotics and added this element to the motion for mistrial. The trial judge denied the entire motion and thought it best not to rule on the issue of the narcotics before the jury as repetition would not aid the situation. No additional objection was made by either counsel and the trial proceeded. Defendant claims reversible error in this regard.

In our opinion, the prosecution may introduce evidence as a narrative of police activities leading to the arrest and subsequent identification of a defendant. (See People v. McShan (1975), 32 Ill. App. 3d 1068, 1074, 337 N.E.2d 263, appeal denied (1976), 61 Ill. 2d 603.) The same result was. reached by the court in People v. Sessions (1968), 95 Ill. App. 2d 17, 24, 238 N.E.2d 94, where this court stated:

“In a criminal prosecution the State may offer a continuous narrative of the events that formed the context of the arrest. [Citations.] If this narrative includes connected crimes, proof of these crimes is permissible as part of the res gestae. [Citations.]”

We find Sessions and other authorities cited to the same effect in People v. Bolton (1974), 18 Ill. App. 3d 512, 514, 310 N.E.2d 22, appeal denied (1974), 56 Ill. 2d 588.

Defendant depends and relies upon People v. Lewis (1972), 6 Ill. App. 3d 101, 285 N.E.2d 168, and People v. Novak (1965), 63 Ill. App. 2d 433, 211 N.E.2d 554. In these cases the court held that the testimony that the defendants were in possession of drugs (Novak) and hypodermic needles (Lewis) was prejudicial error. In Lewis, the prosecutor referred to the narcotic needles found in possession of defendants twice in his opening statement, on direct examination of a police officer and in redirect examination of the same officer. A number of questions were put to the officer regarding the hypodermic needles. 6 Ill. App. 3d 101, 103-04.

In Novak, the State repeatedly made a point of the alleged use of narcotics by the defendant by putting a direct question to him on this subject and also by a good deal of evidence by the police regarding needle marks on defendant’s arm. In addition, the prosecutor referred to the needle marks in his final argument. This court expressly noted that it could not say the evidence of guilt was strong enough to overcome these matters but characterized the case as so close that these tactics may have affected the verdict. 63 Ill. App. 2d 433, 443-44.

In the later case of People v. Taglia (1979), 76 Ill. App. 3d 199, 392 N.E.2d 725, this court considered Novak and Lewis. In Taglia, as by the witness in the case at bar, there was a single reference to a hypodermic needle by the prosecutor. This court accordingly found “any error to be harmless beyond a reasonable doubt.” 76 Ill. App. 3d 199, 204.

In the case before us, the evidence of guilt is so strong that the elimination of this bit of testimony by the police officer would produce no different result. In other words, we are satisfied beyond all reasonable doubt that the alleged error was harmless and did not affect the right of the defendant to a fair trial. See People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.

V

The final contention of defendant is directed to closing argument of the prosecutor. Defendant’s brief devotes much space to this subject. We will categorize this criticism of the prosecution as pertaining to alleged comment on the defendant for failing to testify; statements by the prosecutor not supported by the record and adverse comments by the prosecutor concerning defense counsel.

Defendant stresses one alleged violation by the prosecutor. During final argument by the prosecutor the following occurred:

“MR. THEOBALD [prosecutor]: * 0 e One person in this courtroom knows and can tell you who signed those phony bond slips, who wrote them out, this person could have had their handwriting examined —
MR. TOOMIN [defense attorney]: Objection.
THE COURT: Objection sustained. The jury is instructed to disregard it. Move on to something else, Mr. Theobald.
MR. THEOBALD: She chose not to.
MR. TOOMIN: Objection.
THE COURT: Objection sustained.
MR. TOOMIN: Ask that he be admonished.
THE COURT: You are admonished not to mention that again since the Defendant is entitled to a fair trial, and your comments right now are not fair.
MR. THEOBALD: I’m sorry, Your Honor.”

Defendant urges that this argument constituted reversible error. Defendant relies upon United States v. Hastings (7th Cir. 1981), 660 F. 2d 301. There, the court of appeals reversed a Mann Act conviction. In final argument, the prosecutor made four rather lengthy statements regarding failure of the defendants to “challenge” a number of events regarding which the complainants had testified. The prosecutor repeatedly stated that defendants “had never challenged” various acts with which they were charged.

In our opinion, the situation in Hastings is far more detrimental to the rights of the defendants than the occurrence in the instant case. Here, objection by counsel for defendant was promptly sustained and the jury instructed to disregard it. The prosecutor was told “Move on to something else, * * In the heat of argument he added “She chose not to.” We do not condone the failure of the prosecutor to take heed of the ruling of the court. However, we cannot overlook the prompt action taken by the trial court as above pointed out. In our opinion, this swift and decisive remedial action was sufficient to eliminate any conceivable prejudice that may have resulted to the defendant from the four additional words by the prosecutor. This is particularly true in view of the overwhelming evidence of the guilt of the defendant as above pointed out. We categorize this entire incident as harmless error.

We do not find it necessary to state all of the remaining points in detail. In our opinion, each of these contentions is fully refuted by one or more of the following established legal principles:

(1) Failure of defense counsel to object. People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.

(2) Unfavorable comment on defendant and the use of invectives was justified. See Jackson, 84 Ill. 2d 350, 360.

(3) The prosecutor was entitled to broad latitude in his final argument. People v. Dominique (1980), 86 Ill. App. 3d 794, 806, 408 N.E.2d 280, appeal denied (1980), 81 Ill. 2d 603.

(4) The rulings by the trial court on objections by defendant to the prosecutor’s argument showed no abuse of discretion. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324.

(5) In some instances the trial court sustained objections by defendant and instructed the jury to disregard the objectionable matter. People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.

(6) Examination of the record convinces us defendant has failed to show substantial prejudice as a result of the assailed arguments (Baptist, 76 Ill. 2d 19, 29-30), and has failed to show any or all of these arguments constituted a material factor in the conviction. People v. Clark (1972), 52 Ill. 2d 374. 390, 288 N.E.2d 363.

(7) The evidence of guilt in this regard is so overwhelming that any or all of these assailed arguments, if error, were harmless beyond reasonable doubt. People v. Skorusa (1973), 55 Ill. 2d 577, 585, 304 N.E.2d 630, cited in People v. Battles (1981), 93 Ill. App. 3d 1093, 1099, 418 N.E.2d 22.

(8) The trial court instructed the jury that remarks of counsel were not evidence. (Illinois Pattern Jury Instructions, Criminal, No. 1.03 (2d ed. 1971); see People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) Also, the trial judge instructed the jury that the facts were to be determined solely from the evidence before them. IPI Criminal No. 1.01; People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121-22, 390 N.E.2d 1339.

For these reasons the judgment of guilt of aiding an escape is vacated and the judgment of guilt of conspiracy is affirmed.

Judgment affirmed in part and vacated in part.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    FREDERICK K. SLAYTON, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF STREAMWOOD et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2461
    Opinion filed November 23, 1981.

      William T. Dwyer, of Chicago, for appellant.
    Robert V. Gildo, of Wheaton, for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Frederick K. Slayton, brought this action for administrative review of his discharge as a member of the police department of the Village of Streamwood (hereinafter Village). The trial court affirmed the order of discharge of the Board of Fire and Police Commissioners of the Village of Streamwood (hereinafter Board), and plaintiff appeals.

The record discloses plaintiff was a police officer for the Village of Streamwood for 4 years prior to the events of March 26, 1979. On said date, plaintiff was on medical leave from the Village and was able to engage in a small general construction contracting business that he had developed. On the afternoon of March 26, plaintiff was at work at a store preparing an estimate for remodeling in Morton Grove, and a personal friend, Edward Marcus, who was employed at the store, asked to borrow a tape cartridge from plaintiff’s car. Plaintiff gave Marcus his keys and remained in the store completing the estimate. After five or 10 minutes plaintiff went to his car and discovered that Marcus was still sitting in the passenger’s seat. Plaintiff got into the driver’s seat and noticed that Marcus had a clear plastic bag containing marijuana on his lap. Marcus told plaintiff that he wanted to roll a joint before he left.

A Morton Grove squad car drove up to plaintiff’s car while plaintiff and his friend were seated in the car. One of the officers approached plaintiff’s car and told Marcus and plaintiff to get out of the car. Plaintiff and Marcus got out of the car, and plaintiff showed the Morton Grove police officer his Streamwood ID. Plaintiff was questioned by Lieutenant Victor Pearson from the Morton Grove Police Department, and plaintiff told the lieutenant that plaintiff was a detective, working in drugs for the Streamwood Police Department and that Mr. Marcus was one of his informants. Plaintiff said that he had been working with Marcus for one year. The packet contents and a cardboard box found on the floor of plaintiff’s car measured some 22.7 grams, and Marcus was charged with possession of cannabis.

At the Morton Grove police station plaintiff indicated that he was off duty and the Streamwood Police Department did not know anything about the drug investigation case. Plaintiff also indicated that he was working on a case to protect his friend, Edward Marcus, and to save the Streamwood Police Department from embarrassment. Plaintiff was released and not charged with any violation of any criminal offense.

On April 17, 1979, written charges were filed before the Board growing out of plaintiff’s conduct on March 26. Plaintiff and Lieutenant Pearson were among the witnesses who testified at the hearing, and the Board found as follows:

“(8) This Board finds that a preponderance of the evidence establishes that the Respondent on March 26,1979, in a parking lot located at or about 6727 Dempster Street, Morton Grove, Illinois did violate Section 1.5.2.26 of the Rules and Regulations of the Police Department of the Village of Streamwood, Illinois in that the Respondent, while off-duty, did knowingly, purposely, and falsely represent to a Morton Grove Police Officer, who was in the conduct of a police investigation, that the Respondent was engaged in an undercover drug investigation involving a cannabis transaction.
(9) This Board determines that the act of which it finds the Respondent guilty in paragraph 8 hereof, the making of a report and/or conducting police business in a false and untruthful manner, is a substantial shortcoming which renders Respondent’s continued employment as a patrol officer detrimental to the efficiency, discipline, and morale of the Police Department, and that, by reason thereof, cause exists for the removal and discharge of Respondent from his position as a patrol officer and as a member of the Police Department of the Village of Streamwood, Illinois.”

Pursuant to the Administrative Review Act the trial court affirmed the Board’s ruling and found that the finding of the Board was not contrary to the manifest weight of the evidence.

On appeal plaintiff argues that the finding of the Board is against the manifest weight of the evidence and that the factual findings do not constitute a violation of section 1.5.2.26 of the rules and regulations of the Village. Plaintiff asserts that a fair reading of the regulation 1.5.2.26 indicates that the finding of the Board does not constitute a violation of said regulation. Plaintiff claims that the Board failed to indicate whether the false representation was made while testifying, in a report, or while conducting police business. Additionally, plaintiff contends that the record of the Board’s proceeding fails to set forth any evidence sufficient to sustain a violation of section 1.5.2.26. Lastly, plaintiff claims that a violation of section 1.5.2.26 can only occur if police business is conducted in a less than truthful and cooperative manner.

The Board responded to plaintiff’s argument by asserting that there is nothing in section 1.5.2.26 that indicates that the words “testifying” and “reports” were limited to only those instances where Streamwood police officers were testifying or making reports to the Streamwood Police Department. To render such an interpretation would be to read into plain and certain statutory language limitations and conditions that do not exist.

When Officer Slayton told Lieutenant Pearson of the Morton Grove Police Department that he was on a “case,” that he was a detective working drugs for the Streamwood Police Department, that Mr. Marcus was an informant, and that he had been working with Marcus for one year, he was making a statement allegedly based upon personal knowledge and he was giving an account of his position and relationship with Marcus to Lieutenant Pearson. There can be no question that Officer Slayton was testifying and making a report to Lieutenant Pearson. The fact that, by his own admission, the representations made by Officer Slayton to Lieutenant Pearson were false and were intended to protect a friend who had just committed a crime, clearly establishes that the testimony and report of Officer Slayton was in a less than truthful and cooperative manner. The testimony and report of Officer Slayton was neither truthful nor was it cooperative. The fact that the false testimony and report of Officer Slayton was made to an officer in the Morton Grove Police Department rather than the Steamwood Police Department in no way removes the matter from falling under the clear meaning and intent of section 1.5.2.26 as no limitation as to the recipient of the false testimony or report is contained in the rule.

An administrative body’s interpretation of its own rules, as long as the interpretation relates to the agency’s power, is entitled to a presumption of validity. (Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 378 N.E.2d 1160.) The scope of review of an administrative agency’s decisions regarding discharge has been recently set forth by the Illinois Supreme Court in Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885, and entails a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. Second, the court must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. The findings and conclusions of the administrative agency shall be held to be prima facie true and correct and unless arbitrary, unreasonable, or unrelated to the performance of service will not be reversed. See Albert v. Board of Fire & Police Commission (1981), 99 Ill. App. 3d 688, 425 N.E.2d 1158.

Applying the above principles to the instant case, we reach the conclusion that the holding of the trial court that the Board’s ruling was not contrary to the manifest weight of the evidence and that there was sufficient evidence in the record to support the finding and decision of the Board is in accord with the standards set forth in Department of Mental Health & Developmental Disabilities.

Plaintiff has requested that this court entertain plaintiff’s suggestion that consideration be given to a lesser sanction or modification or revision of the Board’s order; however, we decline to substitute our judgment for that of the Board. Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136; Adamek v. Civil Service Com. (1958), 17 Ill. App. 2d 11, 149 N.E.2d 466.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    NATHANIEL DOTSON, Plaintiff-Appellee, v. WILLIAM M. BOWLING, Director, Illinois Department of Labor, et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-2777
    Opinion filed November 23, 1981.
    Tyrone C. Fahner, Attorney General, of Chicago (Orisha A. Kulick, Assistant Attorney General, of counsel), for appellants.
    Roselynn Don and James A. Walsh, Jr., both of Legal Aid Bureau, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff brought this action under the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) Plaintiff sought review of a decision of the Illinois Department of Labor Board of Review, which found he was not qualified for unemployment benefits because his employer, Glenn Eanes, doing business as Glenn’s Standard Service, had discharged him for misconduct connected with his work. (Ill. Rev. Stat. 1979, ch. 48, par. 432.) On administrative review, the circuit court reversed the decision of the Department. Defendants have appealed contending (1) plaintiff’s conduct was in willful disregard of his employer’s interest and, as such, plaintiff was properly denied benefits for misconduct; (2) plaintiff failed to rebut the employer’s testimony that plaintiff was discharged for misconduct; and (3) the decision of the Board of Review was not against the manifest weight of the evidence.

The referee stated at the hearing that the basis of the employer’s appeal was that plaintiff lied about his reason for discharge. It was alleged that after plaintiff returned to work he assured the employer that he could handle the equipment and go out and change tires, which is part of his job, and that he did this on numerous occasions after returning to work and never once asked for help, including the day he was fired.

Plaintiff testified at the administrative hearing that he was discharged because he was physically unable to lift a heavy jack and put it on a truck, even though his employer knew he had been home for six weeks with a broken wrist prior thereto. Plaintiff explained to his employer he felt he could not lift the jack he was asked to lift, but his employer told him to either do what he was told or turn in his uniform.

The employer testified that the first time he sent plaintiff to change a flat tire he asked plaintiff if he thought he could do it since he had broken his wrist. Plaintiff assured him he could. The employer recalled that when plaintiff went out on several other occasions he did not say he could not do the work. However, on the day in question he told plaintiff to put the jack on the truck and go change a flat tire, but plaintiff refused even though plaintiff did not ask for help to put the jack on the truck.

Argument then ensued between plaintiff and the employer at the administrative hearing. Plaintiff claimed he was the only black man at work and he was never asked to go out on other types of calls where he did not have to use the jack, like starting a car. The employer responded that plaintiff had not been trained to start cars.

The administrative decision found that plaintiff was off work for six weeks with a broken wrist before his discharge and that he assured his employer of his physical capability to perform the work required of him when he returned to his job. However, plaintiff then refused to place a hydraulic jack onto a truck and was discharged.

The Board of Review found that the term “misconduct” as used in the statutes must be connected with the work, a deliberate act, or an intentional omission of an act on the part of the worker which constitutes a breach of his duties and obligations to his employer. Deferring to the referee’s determination of the credibility of the witnesses, the Board of Review concluded that the referee’s findings were not against the manifest weight of the evidence, stating:

“Plaintiff testified that after being on workmen’s compensation due to a broken wrist, he went back to his job. * * * He tells his employer he can’t pick up a certain jack. His employer then orders him to pick up a jack, and because he doesn’t do so, he discharges him.”

On administrative review, neither this court nor the circuit court is to reweigh the evidence or the determination of the credibility of the witnesses, which is to be made by the agency. (Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136.) In this case, we believe the circuit court did redetermine the administrative factual findings. That decision is clear in the regard that the administrative agency believed the testimony of the employer and not that of plaintiff.

As we understand defendants’ position, they do not quarrel with the legal proposition set forth by plaintiff, and supported by Idaho decisions, that if the employee’s refusal to work is due to a medical disability misconduct has not been established. (See Mandes v. Employment Security Agency (1953), 74 Idaho 23, 255 P.2d 1049; Mata v. Broadmore Homes (1974), 95 Idaho 873, 522 P.2d 586.) Rather, defendants contend it is the agency’s function to assess the credibility of the witnesses. (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 296 N.E.2d 721.) We agree with defendants that, under the circumstances presented by this record, plaintiff’s claim of disability is not supported by the record. Rather, the agency accepted the findings of its hearing officer who believed the testimony of the employer that, despite the fact that plaintiff had several times performed the same work since coming back to work after his wrist injury, he refused to do the work on this occasion, and the employer’s testimony which showed that this refusal was not based on any claimed physical disability. Under the circumstances, the decision of the agency is supported by substantial evidence. The circuit court should not have set aside the agency’s conclusion that plaintiff was properly denied benefits because his refusal to perform the work, under the circumstances, constituted misconduct under the statute and the decided cases. Granite City Steel v. Board of Review (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931; Roundtree v. Board of Review (1972), 4 Ill. App. 3d 695, 281 N.E.2d 360.

The judgment of the circuit court of Cook County is therefore reversed.

Judgment reversed.

CAMPBELL, P. J., and McGLOON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA BOYD et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-3263
    Opinion filed November 23, 1981.
    Steven M. Levin and Neal Birnbaum, both of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court;

After a bench trial, defendants, Barbara Boyd and Marcia Henderson, were convicted of gambling and sentenced to one year conditional discharge. Defendants’ motion for new trial and arrest of judgment was denied. Defendants appeal.

Officer James Jones testified that on July 7,1980, he and his partner, Officer Bowen, executed a search warrant in Chicago. They entered the premises when a patron was leaving. They did not knock before they entered. Officer Bowen identified himself and Officer Jones as police officers, but they did not display the warrant. Defendants were sitting at a table upon which were a “tally sheet” (a sheet on which bets are recorded), bet receipts, “scratch sheets” with racing information from two race tracks, and some cash. The officers confiscated the evidence and placed defendants under arrest.

On appeal, defendants raise several arguments. Because we believe the sufficiency of the misdemeanor complaint is the dispositive issue, we need not address defendants’ remaining contentions.

The misdemeanor complaint charges each defendant with “the offense of gambling in that she knowingly owns or possesses any book, instrument, or apparatus by means of which bets or wagers have been, or are received or registered, or knowingly possessed any money which he [sic] has received in the course of a bet or wager.” The language of the complaint mirrors the language of the gambling statute. Ill. Rev. Stat. 1979, eh. 38, par. 28 — 1(a)(5).

Defendants contend the utilization of the disjunctive “or” makes the complaint void because it names two disparate and alternate acts causing uncertainty and conjecture as to the offense with which defendants were being tried. Defendants rely upon People v. Heard (1970), 47 Ill. 2d 501, 266 N.E.2d 340. In Heard, 47 Ill. 2d 501, 504:

“The complaint charged that each defendant committed the offense of gambling in that ‘She set up or promoted a Policy Game or (Sold) or (Offered to Sell) or (transferred) a ticket or (share) for a lottery or (sold) or (offered to sell) or (transferred) or (knowingly possessed) a policy ticket or other similar device: To Wit: Policy results tickets, Policy bet writings and other related gambling policy paraphernalia.’ ”

The court in Heard, 47 Ill. 2d 501, 504-05, reversed the gambling conviction, holding the complaint was void because:

“The statute here named specific acts which constitute the crime of gambling, some of which acts are clearly disparate and alternative. The promoting of a policy game is not the same act as transferring a policy ticket, for example. The use of the disjunctive under these circumstances causes uncertainty and conjecture as to which of the alternatives the accused is charged with committing.”

The People contend the use of the disjunctive does not render a complaint void if the terms connected are intimately associated in meaning. The People cite People v. Abrams (1974), 21 Ill. App. 3d 734, 316 N.E.2d 5, appeal denied (1974), 57 Ill. 2d 605. In Abrams, 21 Ill. App. 3d 734, 740-41, we held the provision of a complaint which charged the defendant with “possessing” or “acquiring” a firearm without required registration was not void, because the meanings of those words are intimately associated. However, we invalidated the complaint because it charged defendant with the unlawful possession of a “firearm or firearm ammunition.” In reversing the conviction for failing to register a firearm we stated:

“[I]n the instant complaint, the use of the disjunctive ‘firearm or firearm ammunition alleges two disparate and alternative elements, the acquisition or possession of either, when coupled with the nonpossession of the identification card, will constitute the offense. Because of the use of such disjunctive, the instant complaint lacked the necessary certainty to charge an offense and is therefore void.” (Abrams, 21 Ill. App. 3d 734, 742.)

See also People v. Oulson (1976), 37 Ill. App. 3d 912, 347 N.E.2d 71.

In the case at bar, as in Abrams, the disjunctive language in the first portion of the complaint connects words whose meanings are intimately associated: “owned” and “possessed,” “instrument” and “apparatus,” “bets” and “wagers,” and “received” and “registered.” Such disjunctive language does not render the complaint void. However, the complaint also connects the basic charge of possessing bookmaking paraphernalia with the charge of possessing money received in the course of a bet or wager. We hold the possession of bookmaking paraphernalia, and the possession of money wagered, are disparate acts either one of which would sustain the charge of gambling. (See Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1(a)(5).) The complaint is therefore void. Heard, 47 Ill. 2d 501, 505.

We reject the contention of the People that defendants waived any defect in the complaint by failing to challenge it before judgment was entered. “While technical defects in a charge are waived if not challenged in the circuit court ° * *, the argument that a charge is void is one that can be raised at any time, regardless of whether the alleged error is properly preserved for review * 6 (People v. Walker (1980), 83 Ill. 2d 306, 313, 415 N.E.2d 1021; see also Ill. Ann. Stat., ch. 38, par. 114—1, Committee Comments, at 197-98 (Smith-Hurd 1977).) In any event, defendants in the case at bar did challenge the complaint in the trial court. The defect in the complaint was specifically attacked in defendants’ post-trial motion in arrest of judgment. Such a challenge is timely and clearly preserves the issue for appellate review. (People v. Lutz (1978), 73 Ill. 2d 204, 210, 383 N.E.2d 171.) For these reasons the judgment appealed from is reversed.

Judgment reversed.

McGLOON and O’CONNOR, JJ., concur.