author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    HOUSING AUTHORITY FOR LA SALLE COUNTY, Plaintiff-Appellant, v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF OTTAWA, Defendant-Appellee.—(Robert Allen, Intervening Defendant-Appellee; The City of Ottawa, Intervening Petitioner-Appellee; Housing Authority for La Salle County et al., Respondents-Appellants.)
    Third District
    Nos. 82—161, 82—127 cons.
    Opinion filed January 13, 1983.
    HEIPLE, J., dissenting.

      George Mueller, of Hoffman, Mueller & Creedon, of Ottawa, for appellant Housing Authority for La Salle County.
    James Lanuti and Paul V. Martin, both of Lanuti, Martin & Lanuti, of Ottawa, for appellee and appellant Young Men’s Christian Association of Ottawa.
    Warren, Hayner & Baxter, of Ottawa, for appellee City of Ottawa.
    Barton & Sorokas, of Marseilles, for appellee Robert Allen.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Housing Authority for La Salle County (hereinafter Housing Authority) appeals from the entry of summary judgment against it, and for the defendant Young Men’s Christian Association of Ottawa (hereinafter YMCA) in this title dispute case. The court determined that the plaintiff’s action was barred by the doctrine of collateral estoppel, based upon a prior suit in Federal district court involving the Housing Authority’s and the YMCA’s predecessors in title and the property in dispute in the case. The Housing Authority appeals from the entry of summary judgment and argues (1) that the issues involved in the prior suit were not sufficiently similar so as to support a bar by collateral estoppel in this suit; (2) that collateral estoppel does not apply because the judgment in the prior suit was based upon a consent agreement; and (3) that equitable principles outweigh the technical requirements of the doctrine and the interests of justice dictate that the doctrine not be applied, and the parties be given a full opportunity to litigate their dispute.

The record reveals that the Housing Authority filed the instant suit against the YMCA in 1981, alleging that the YMCA had commenced construction of a parking lot, a portion of which encroached upon the property of the Housing Authority. A temporary restraining order was entered and further construction halted, pending resolution of the case. An amended complaint asked the court to quiet title to the disputed real property. Both counts of the amended complaint at issue herein alleged- ownership of the property by the Housing Authority, pursuant to previous deeds and chain of title. The YMCA filed an affirmative defense, alleging that ownership to the disputed property had been previously determined by the District Court of the United States, Northern District of Illinois, in case N.40531, United States v. Elizabeth- Wirtz et ah, a decision handed down on November 21, 1932. The YMCA also filed' a counterclaim in the instant action, to quiet title. Attached to the pleadings filed by the YMCA was a copy of the United States v. Wirtz decision. United States v. Wirtz was an action brought by the United States against a number of landowners along the Fox River, for the condemnation of flood plain easements, and for the fixing of compensation for the condemnation.

The petition by the government in United States v. Wirtz set forth the United States’ powers of condemnation, the fact that the Attorney General had been unable to satisfactorily approve title due to its confused state, and the existence of outstanding and adverse claims to the real estate. It was specifically set forth in the petition that the First Trust Company of Ottawa, Illinois, the YMCA’s predecessor in title, claimed legal title to part of the real estate designated as Tract No. 0-20 to 0-25, under a specified warranty deed, duly recorded. Also specifically set forth was that Charles and Ella Deenis, the Housing Authority’s predecessors in title, claimed legal title to part of the real estate designated as Tract No. 0-20 to 0-25, under a different specified warranty deed. In addition, the petition sets forth the fact that this property, claimed by both predecessors in title, was encumbered by a lien for the 1931 general taxes. A map showing the property was also attached. In the Wirtz suit, the Deenises were personally served with summons in the action, but they made no appearance and a default judgment was entered against them. The First Trust Company, YMCA’s predecessor in the action, appeared. The judgment order reveals that the First Trust Company filed a stipulation, waiving its right to trial by the jury, and submitted the matter to the trial court judge. In the judgment order, the trial court made a specific finding, “upon the record herein and the evidence presented, *** that the First Trust Company of Ottawa, Illinois, is seized with fee simple title to the real estate,” being the property again in dispute in the instant case. Compensation was set at $600 by the court in United States v. Wirtz, as the value for the flood plain easement. There is no dispute between the parties in the instant case that the property covered in the United States v. Wirtz order is the same as is now claimed by them, as successors in title to the First Trust Company and the Deenises.

The decision by the court in United States v. Wirtz was thereafter recorded at the La Salle County Recorder’s office, indicating the judicial determination that title to the property was held by the First Trust Company. The YMCA took title to the property in 1956, by warranty deed, and the Housing Authority took title to their property in 1962.

The trial court, on defendant YMCA’s motion for summary judgment, supported by affidavit and certified copies of the petition and order in the United States v. Wirtz case, entered judgment for the YMCA, based upon application of the doctrine of collateral estoppel. An appeal was taken by the Housing Authority.

The basic rules with respect to the doctrine of collateral estoppel were ably set forth in Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 1015, 1018, 387 N.E.2d 1105:

“Estoppel by verdict or collateral estoppel is an extension of the doctrine of res judicata. [Citation.] It is based on the principle that a question once adjudicated by a proper court is to be considered as finally settled and conclusive on the unsuccessful parties. [Citation.] Estoppel by verdict or collateral estoppel is applicable even where the parties are not arrayed on opposite sides in prior litigation or formal issues have not been drawn up between them. [Citations.]” (See also Creeco Co. v. Northern Illinois Gas Co. (1966), 73 Ill. App. 2d 218, 222, 219 N.E.2d 257.)

The doctrine operates as a bar, to parties and their privies, and is applied if the party against whom it is raised actually litigated the matter or had the opportunity to litigate the matter in a former action. (In re Marriage of Donnellan (1980), 90 Ill. App. 3d 1032, 1035-36, 414 N.E.2d 167.) Collateral estoppel applies as a bar to relitigation where the same parties or their privies attempt to relitigate an issue that was previously decided by a court of competent jurisdiction, even though the cause of action was different. The parties agree on the basic principles to be applied. Application to the facts is the crux of the dispute on this appeal.

In the instant case, while the YMCA’s and the Housing Authority’s predecessors in title were both arrayed as codefendants in the prior United States v. Wirtz action, their actual adversity with respect to the real estate was sufficiently set forth. The pleadings in United States v. Wirtz stated that both predecessors in title, by virtue of their chain of title, claimed part of the property identified as Tracts 0-20 to 0-25, which is the same property at issue in the instant case. The pleadings, setting forth the dual claims, pursuant to chain of title, set forth an adversity between the parties. Furthermore, the question of title to the disputed property was at issue in the previous litigation, for the district court’s jurisdiction over condemnation proceedings of necessity carries with it the power to determine who, among competing claimants, owns the land. (United States v. 1629.6 Acres of Land (3d Cir. 1974), 503 F.2d 764, 766.) It is evident that the government, in the United States v. Wirtz action, recognized the respective chains of title resulting in competing claims for the property, as between the parties’ predecessors in title, and that those claims needed resolution in the condemnation action. Both the Deenises and First Trust Company were parties in the previous action. The fact that the Housing Authority’s predecessors in title, the Deenises, chose not to defend that action does not insulate them from operation of the doctrine of collateral estoppel. Their claim was before the court, and the fact that they chose not to litigate, thereby forfeiting their opportunity to pursue it, does not affect the bar set up by collateral estoppel. The question was before the court in United States v. Wirtz, the predecessors in title were before the court, and a determination of title, based upon the record, was made. Contrary to the Housing Authority’s assertions, we find, as did the trial court, that the requisite specific adversity existed in United States v. Wirtz, that the court therein had the power to determine title rights to the property between parties in the case, and that it did in fact determine the title rights to the property. There was a specific finding that the YMCA predecessor in title, the First Trust Company, was seized with fee simple title to the real estate. Had the Deenises not defaulted, but stood to litigate the matter, they could have asserted their claim to the property. They had their opportunity to do so, but chose not to do so. Therefore, they, and their successors in title, are barred, under the doctrine of collateral estoppel, from seeking another opportunity to litigate the question of title, determined in 1932 by the Federal district court.

We reject the Housing Authority’s assertion that the United States v. Wirtz decision was a consent judgment, without effect as a bar under the doctrine of collateral estoppel. The difficulty with the argument is not the proposition of law, but rather its attempted application in the instant case. The record reveals that the stipulation entered by the First Trust Company in United States v. Wirtz was a waiver of its right to a jury trial. The judgment order, apart from such stipulation, indicates that the court made findings of fact in the case, based upon the evidence in the record, that the First Trust Company was seized with fee simple title to the real estate. The Housing Authority has not demonstrated that the judgment was by consent decree.

The final argument by the Housing Authority is that collateral estoppel, as an equitable doctrine, is to be utilized by the court in its sound discretion and as the interests of justice require, and that, in the instant case, the interests of justice require that it not be applied. The basis for this argument is the Housing Authority’s contention that they deserve their day in court on the title question. We disagree.

As noted previously, the Housing Authority’s predecessors in title had an opportunity to litigate the question of title, as against the YMCA’s predecessor in title, in 1931, in a suit in Federal court wherein the adverse claims of each were put forth. As a successor in title to the Deenises, the Housing Authority does not have a second opportunity to litigate the question previously determined. The Deenises had the opportunity, chose not to litigate, and there was a judicial determination of title, duly recorded, that the YMCA’s predecessor had title. The judicial determination, in the form of the United States v. Wirtz decision,-was recorded in 1932 at the recorder’s office in La Salle County, and served as notice to all subsequent purchasers of the property determination. The YMCA took title in 1956 and the Housing Authority in 1962. It is a long standing rule in Illinois that purchasers of real estate are chargeable with notice of what appears on record concerning chain of title.

Under the circumstances, we find that the trial court did not abuse its discretion in applying collateral estoppel in the instant case. The interests of justice do not require a reversal of that action, so that the Housing Authority be given a chance to relitigate the question previously determined.

Some comment is necessary regarding the concerns of the dissent. The dissent’s speculations about the attitudes, thought processes, motivations and financial capabilities of the Deenises are interesting as are the less favorable speculations concerning the trust company’s attitudes and motivations. They are interesting speculations, but they are without foundation in the record. The record, with which we are limited in our review of cases, indicates that Charles and Ella Deenis were notified, by summons, of an action in which it was alleged that there were conflicting claims to property belonging to them, for which the government wished an easement. They were notified and given an opportunity to assert their claim, but they defaulted. For what reason, we may only speculate. The facts are that they were made parties, given an opportunity to litigate the disputed claim, and did not do so.

The dissent makes much of the modest amount involved in the prior suit. However, 50 years have passed since the 1932 litigation, and while $600 may now be a small sum to some people, in 1932, for many many people, it was a small fortune. There is no basis for the assertion that the $600 amount was a de minimis sum in 1932, not warranting hiring an attorney to pursue. Even assuming, arguendo, the premise of the dissent, there would remain the problem of where to limit the amount when applying collateral estoppel. If $600 is not worth fighting over, is perhaps $750, or $1,000. We are all left with no guidance.

As a final matter, while the dissent’s speculations focus upon the Deenis couple, it is the Housing Authority involved in this litigation, and so far as the equities are concerned, it must be noted that they took title in 1962, long after the United States v. Wirtz decision had been recorded in the recorder’s office.

For the reasons stated, the decision of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY, RJ., concurs.

JUSTICE HEIPLE,

dissenting:

I agree "with the majority opinion insofar as it makes a technically correct application of the doctrine of collateral estoppel. However, I cannot concur in the result reached since I believe that there are equitable considerations which prevent application of the doctrine in this case.

In September of 1981, the defendant, YMCA of Ottawa, had commenced construction of a parking lot which allegedly encroached on the property of the plaintiff, Housing Authority for La Salle County. The plaintiff filed a complaint seeking injunctive relief as well as damages for the defendant’s alleged encroachment. Since ownership of the property allegedly encroached upon was in dispute, the plaintiff amended its complaint to ask that title be quieted. The defendant filed an affirmative defense alleging that in 1932, a Federal district court had determined that the defendant’s predecessor in title was the owner of the disputed property. The defendant then moved for summary judgment on the ground that the plaintiff was barred by collateral estoppel from relitigating the question of ownership. The court granted the defendant’s motion and the plaintiff appeals.

Collateral estoppel is an equitable doctrine to be exercised by the court in its sound discretion and as the interest of justice requires. A prior suit should not be used to bar a second action when one of the parties to the prior suit did not have a full and fair opportunity to litigate. (Adams v. Pearson (1952), 411 Ill. 431, 440.) In the present case, a 1932 condemnation action is said to bar the plaintiff from pursuing a quiet title action in 1982. The circumstances surrounding the 1932 action make it unfair to give that decision conclusive effect 50 years later.

Ella and Charles Deenis were predecessors in title to the Housing Authority, the current plaintiff. The First Trust Company of Ottawa was the predecessor in title of the defendant YMCA. These parties were named as codefendants in an action brought by the United States to compensate landowners pursuant to government condemnation of riverfront land for flood plain use. According to the government’s petition, the Trust Company and Ella and Charles Deenis all claimed ownership of the same land.

The Federal district court had jurisdiction to try title to the land in order to determine whom to pay and how much. The amount at stake was $600. It should also be borne in mind that the government was condemning flood rights and was not acquiring fee title to the real estate. The owners weren’t threatened with the loss of any land. What was at stake was the government’s potential right to cause flooding over this land in the future. The Federal litigation would establish the right of the government to cause such flooding and the compensation would be fixed at that time rather than later when and if the flooding occurred. In view of the sum of money involved, which was almost de minimus, and in view of the nature of the proceeding, it is easy to see how adjacent landowners could take a fatalistic attitude about the entire proceeding and do nothing other than take the small sum that the government would pay for flood rights. The amount involved hardly warranted hiring an attorney to even check the proceedings and appear in court. It is unlikely that such proceedings would be viewed by landowners up and down the river as trying boundary lines between them. It would not be unreasonable to expect most people to do nothing. That is precisely what Ella and Charles Deenis did. Nothing. It was not readily apparent from the context of the action that conclusive findings of ownership would be made that would be binding as between adjacent property owners who were all defendants to the proceeding. Thus, Ella and Charles Deenis were defaulted.

First Trust Company, however, aware of the potential ramifications of the action and with the means to contest the matter, appeared in court with counsel. First Trust took the opportunity to establish a claim of title to the property under conditions where it was unlikely to meet opposition.

Even though Ella and Charles Deenis had the opportunity to litigate title in 1932, the circumstances were not such as to indicate that they should do so. It would be unfair and unjust to bind them collaterally by their inaction. At best, the 1932 action placed an additional cloud on the title to the property in question. The plaintiff should be allowed to remove that cloud free of collateral estoppel.

Collateral estoppel is not a rigid doctrine and should be applied only as fairness and justice require under the circumstances of each case. Offensive use of the doctrine should be subject to even closer scrutiny. (Fred Olson Motor Service v. Container Corp. (1980), 81 Ill. App. 3d 825, 830.) Unlike the 1932 action, there are significant interests at stake in the present case which both sides are obviously aware of. Both parties have sharply defined adverse interests and possess the means to fully litigate all issues. Under these circumstances, justice demands that the doctrine of collateral estoppel should be set aside and the plaintiff’s action be allowed to proceed. Since the majority has concluded that the plaintiff’s action is barred, I must respectfully dissent.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    THE PEOPLE ex rel. EDWARD PETKA, State’s Attorney of Will County, Plaintiff-Appellee, v. JAMES D. BINGLE, Will County Board Member, Defendant-Appellant.
    Third District
    No. 82—228
    Opinion filed February 16, 1983.

      Robert C. Condon, of Concon & Bruggeman, of New Lenox, for appellant.
    Scott Nemanich and Randal J. Miller, Assistant State’s Attorneys, of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant James D. Bingle appeals from the decision of the circuit court, in this quo warranto proceeding, wherein the court oustéd Bingle from his office as Will County Board member. The quo warranto action had been brought by the Will County State’s Attorney against Bingle, who, at the time of the action, held positions as county board member and as Du Page Township assessor, having been elected to both offices. The proceeding was originally brought on the basis of a common law incompatibility between the two offices, but the amended complaint relied upon Public Act 82 — 554, amending section 2 of “An Act in relation to the simultaneous tenure of certain public officers” (Ill. Rev. Stat. 1981, ch. 102, par. 4.11), which declared it unlawful for one person to simultaneously hold the offices of township assessor and county board member in one county. The circuit court, in entering summary judgment for the county, found that Bingle held both offices, in violation of Public Act 82 — 554. The court ordered that Bingle be ousted from his position as county board member, and it declared that office vacant. Judgment of ouster was stayed, however, pending appeal.

On appeal, the defendant Bingle argues that the court erred in entering summary judgment against him and in ousting him from his position as county board member. He argues: (1) that the legislature, in enacting Public Act 82 — 554, unconstitutionally changed the qualifications for a constitutional office, county board member; (2) that even assuming the constitutionality of the Act, the court erred in applying it to the defendant, where, as here, he held both offices prior to the effective date of the Act and no retrospective application was specified by the legislature; (3) that the court’s decision interfered with the absolute right of the electorate to elect any person not disqualified by the constitution; and (4) that the court’s decision damages the public interest and constitutes an abuse of discretion.

The facts, as disclosed in the record, are undisputed. James Bingle was elected to the Will County Board on November 7, 1978, being sworn in on December 4, 1978. He thereafter assumed his seat on the county board. On April 7, 1981, he was elected to the office of assessor for Du Page Township, Will County, Illinois. On May 4, 1981, he was sworn in to that office. At the time of his election and swearing in as assessor, there was no statutory prohibition in Illinois against one person simultaneously holding the offices of county board member and township assessor.

On July 28, 1981, the Will County State’s Attorney, on the basis of an Illinois Attorney General’s Opinion (Ill. Att’y Gen. Op. No. 81— 021 (July 23, 1981)), requested Bingle’s resignation from the county board. The opinion of the Attorney General had concluded that the offices of county board member and township assessor were incompatible under the common law, and therefore, acceptance of the second office constituted an ipso facto resignation from the first. Thereafter, on August 3, 1981, the State’s Attorney filed a complaint in the nature of quo warranto, praying for a judgment of ouster against Bingle as county board member. Then, on September 17, 1981, the Governor of the State of Illinois signed into law Public Act 82 — 554, which specifically provided that it was unlawful for one person to hold the office of elected county board member and elected township assessor at the same time. On the basis of the incompatibility of the two offices, and supported by the newly enacted Public Act 82 — 554, the county moved for summary judgment. The motion was granted by the circuit court, which found that the two offices held by Bingle were incompatible under the recently enacted statutory provision. The court then ordered that Bingle be ousted from his position as county board member. From entry of that summary judgment, Bingle appeals.

Appellant Bingle argues that Public Act 82 — 554 is unconstitutional in that through it the legislature has attempted to add a qualification to the office of county board member, which is a constitutional office. (Ill. Const. 1970, art. VII, sec. 3(a).) It is established that where the constitution declares the qualifications for an office, it is not within the power of the legislature to change or modify the qualifications, unless such amendatory power is granted in the constitution. (People ex rel. Hoyne v. McCormick (1914), 261 Ill. 413, 420-24, 103 N.E. 1053; People ex rel. Nachman v. Carpentier (1964), 30 Ill. 2d 475, 197 N.E.2d 32.) The county responds to this argument, asserting (1) that Public Act 82 — 554 did not add any additional qualification to the office of county board member, but merely prohibited persons from holding that office and the office of township supervisor (Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 14, 250 N.E.2d 138), and (2) that Public Act 82 — 554 did not change the law, but was merely declaratory of the existing common law rule prohibiting the holding of incompatible public offices. (See People ex rel. Myers v. Haas (1908), 145 Ill. App. 283, 286.) The existence of a common law prohibition against holding both offices is also argued as a response to Bingle’s contention that Public Act 82 — 554 was improperly applied retrospectively to him. Therefore, to the question of the existence of any common law incompatibility we now turn.

The appellate court, in the Haas case, concisely stated the rules with respect to incompatibility:

“Incompatibility, in this connection [the holding of two public offices], is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise. Bacon’s Abridgement Vol. 7, Tit. ‘Officers’, K.; Rex v. Tizzard, 9 B. & C., 418; 1 Dillon on Mun. Corp., p. 308-9, secs. 225—7 and note 4; McCrary on Elec., secs. 336 et seq. 4th Ed.; Mechem on Pub. Off., sec. 429; Dickson v. People, 17 Ill. 191; People ex rel v. Hanifan, 96 Ill. 420; Packingham v. Harper, 66 Ill. App. 96. From these authorities it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office. By his own action the officer expresses his voluntary resignation.” (145 Ill. App. 283, 286-87.)

The common law prohibition against public officers holding two incompatible offices at the same time is of long standing, and well-established origin. (See 63 Am. Jur. 2d Public Officers and Employees sees. 62, 73, 77 (1972); Annot., 89 A.L.R.2d 632 (1963).) Incompatibility, under the common law,

“*** is to be found in the character of the offices and their relation to each other, in the subordination of the one to the other, and in the nature of the duties and functions which attach to them.
Incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other. They are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both.
At common law, it is not an essential element of incompatibility of offices that the clash of duty should exist in all or in the greater part of the official functions. If one office is superior to the other in some of its principal or important duties, so that the exercise of such duties may conflict, to the public detriment, with the exercise of other important duties in the subordinate office, then the offices are incompatible. ***.” (63 Am. Jur. 2d Public Officers and Employees sec. 73 (1972).)

The question of subordination of offices is relevant in the instant case, and pertinent thereto:

“One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, and subject in some degree to the other’s revisory power. Thus, two offices are incompatible where the incumbent of the one has the power of appointment to the other office or the power to remove its incumbent, even though the contingency on which the power may be exercised is remote.” (63 Am. Jur. 2d Public Officers and Employees sec. 74 (1972).)

In support of its argument that the offices of county board member and township assessor were incompatible at common law, the county notes that a county board member has authority to act on the appointment of the supervisor of assessments (Ill. Rev. Stat. 1979, ch. 120, par. 484a) and on the salary and budget of the supervisor of assessments (Ill. Rev. Stat. 1979, ch. 120, par. 484b). It is then noted that the supervisor of assessments, in turn, has some supervisory authority over township assessors (Ill. Rev. Stat. 1979, ch. 120, par. 483), and is the principal person responsible for overseeing the assessment of property in the county. (Ill. Rev. Stat. 1979, ch. 120, pars. 522, 523, 582, 584.) In the exercise of his authority, the supervisor has the power to change assessments made by a township assessor. (Ill. Rev. Stat. 1979, ch. 120, pars. 484b, 576.) The county also notes, in urging incompatibility between a board member and township assessor, that a board member has authority to act on appointments to the board of review, which hears appeals on property assessments, with power to change any assessment. Ill. Rev. Stat. 1979, ch. 120, pars. 489, 589.

It is important to emphasize that the common law rule of incompatibility, in its subordination aspect, focuses upon two offices, held by the same person, where one of those offices is subordinate to the other in some important and principal duties, and subject to the other’s revisory power. In the instant case, there is no indication that Bingle, as a county board member, has duties similar to those imposed on him by virtue of his holding the office of township assessor. The duties of the two offices do not overlap. Nor does a county board member have supervisory authority over a township assessor. The county, in its arguments, has focused primarily upon an incompatibility between the office of county board member and the office of supervisor of assessments. Bingle was not a holder of those two offices. The county, however, attempts to stretch the alleged incompatibility of offices to include the office of township assessor, by virtue of the assessor’s subordination to the supervisor of assessments. We find the incompatibility too attenuated. The focus of the incompatibility inquiry, essentially, is upon the duties of the two offices which are held by the same person. Herein, we find no inherent inconsistency or repugnancy between the duties and functions of a township assessor and those of a county board member. They operate in different spheres and there is no overlap in duty or authority. Nor do we perceive a serious potential for conflicting interests in the exercise of the duties of the offices. We find no common law incompatibility between the office of county board member and the office of township assessor.

The county suggests the possibility of undue influence by a board member, who is also a township assessor, over the supervisor of assessments, in urging a contrary result. It also asserts that permitting such dual office holding poses a threat to the entire statutory supervisory scheme for the assessment process. In assessing such concerns, it is useful to examine an individual county board member’s duties, vis-a-vis the supervisor of assessments. A supervisor must possess the statutory qualifications and must pass a test administered by the Department of Local Governmental Affairs. Only the top three scorers on the test shall be eligible for appointment to the position. (Ill. Rev. Stat. 1979, ch. 120, par. 484a.) Furthermore, the appointment of a supervisor, in counties of less than 1,000,000 inhabitants and not having an elected board of supervisors, is made by the presiding officer of the county board, “with the advice and consent of the county board.” (Ill. Rev. Stat. 1979, ch. 120, par. 484a.) We find no inherent conflict between an individual board member’s duty with respect to advising and consenting to the chairman’s choice for supervisor, and the same person’s duty as a township assessor, in assessing township property. Nor do we find in this “advise and consent duty” such a potential for undue influence as would thereby disqualify the board member from serving as township assessor. So far as removal of the supervisor, prior to November 1981 amendments, there was no provision for removal of an assessor by the county board. A supervisor of assessments, whom the chairman did not wish to reappoint, could obtain a hearing on the basis for his lack of reappointment before the full board. However, in Macaluso v. West (1976), 40 Ill. App. 3d 392, 352 N.E.2d 382, it was held that the county board had no power to remove or suspend a supervisor of assessments. After the November 1981 amendments, the county board, by a vote of two-thirds of its members, had the power to dismiss a supervisor for “misfeasance, malfeasance or nonfeasance in the performance of the duties of his office.” (Ill. Rev. Stat. 1981, ch. 120, par. 484a.) In either situation, the influence of any one board member, who is not the chairman, is minimal. As Bingle notes herein, he was one of 27 board members. Similarly, the budget and salary of the supervisor are set within statutory limitations, and an individual board member’s influence thereon would be minimal.

In short, we are simply unable to find in the duties and authority of the offices herein held by defendant Bingle any inherent antagonism or repugnancy such that his exercise of them would impermissibly conflict. As to the suggested undue influence potential, based upon the intermediary position of the supervisor, we find it not significant enough to conclude that the offices of township assessor and board member are incompatible. We note, too, that such potential is always present, to some degree, in the public sector, and the argument could be made that a board member, as an owner of tax-paying real estate, might use his position to unduly influence a supervisor in his assessments. The statutory scheme for assessments is elaborate, and tightly drawn, with a variety of appellate procedures designed to ensure multileveled review over any individual assessment.

We find no significant subordination of the two offices held by Bingle, and no basis for concluding that the performance of the duties of the two offices were in conflict or interfere with each other. We find that the county has failed to show that Bingle cannot faithfully, properly and fully perform the duties of the two offices. We find no common law incompatibility. In so doing, we reject the county’s assertion that Public Act 82 — 554 did not change the law in existence prior to its passage, but was merely declaratory of the existing common law. There was a change in the law effected by that Act. By its clear terms, Public Act 82 — 554 established that it was unlawful for a person to hold both the position of county board member and township assessor. However, just as clearly, that did not become the law in Illinois until September 17, 1981. Bingle was elected to the county board in November 1978, taking office in December 1978. He was elected township assessor in April 1981, taking the oath of office in May 1981, which oath was sufficient to constitute a user of the office and its assumption. (People v. Callaghan (1876), 83 Ill. 128, 134-36.) Therefore, Bingle, prior to the time of the effectiveness of Public Act 82 — 554, had assumed both offices. It is an elementary proposition of statutory construction that a law will not be given retrospective application, unless it is clear from the legislation itself that the legislature intended for it to receive such application. (Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 411 N.E.2d 277; United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 141-42, 204 N.E.2d 4.) Bingle was elected prior to the effectiveness of the act making his dual office holding unlawful, and there is nothing in the act indicating the legislature’s intention to make its application retrospective. To apply the act to him would attach a prohibition to the offices to which he was duly and properly elected before its enactment and would also work a disenfranchisement of the voters electing him. The application of the act to him works an impermissible retroactive application where none is called for in the act.

The county’s argument against this finding is their contention that the law was merely declaratory of the existing common law incompatibility of the two offices, an argument we have already disposed of previously in the opinion.

Having concluded that there was no common law prohibition against Bingle’s holding of the two offices, and having concluded that the only other basis for ousting him, that is Public Act 82 — 554, did not apply because of its prospective application after September 17, 1981, we need not reach the constitutional issues raised or any other issue.

The action of the circuit court of Will County is reversed, and for the reasons stated, we find that the defendant Bingle was entitled to serve out the remainder of the terms of the two offices.

Reversed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    JOHN POTTER et al., Plaintiffs-Appellants, v. EUGENE JUDGE et al., Defendants-Appellees.
    Third District
    No. 82—175
    Opinion filed January 6, 1983.

      Matthew A. Maloney, of Pierson & Maloney, of Princeton, for appellants.
    Donald C. Martin, of Johnson, Martin & Russell, and John Isaacson, of Trimble, Angel, Hornbaker & Isaacson, both of Princeton, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

This action involves the appeal from an order granting judgment on the pleadings based upon a complaint for declaratory judgment filed by John Potter and E. P. Becker, Inc., an Illinois corporation, against the city of Princeton, a municipal corporation, Eugene Judge, Helen L. Judge and Citizens First National Bank of Princeton, a banking corporation, requesting that the trial court decide that the “Industrial Project Revenue Bond Act,” as applied and alleged in the complaint filed, was unconstitutional and further seeking a determination that the “Open Meetings Act” was likewise violated in certain particulars. The trial court allowed the joint motion for judgment on the pleadings filed by all defendants.

On December 7, 1981, the city of Princeton adopted an ordinance which authorized the issuance of its Industrial Project Revenue Bonds (IRBS), at the request of Eugene and Helen L. Judge, for the acquisition and construction of a “Convenient Food Mart” within the city of Princeton; the project was to be financed by Citizens First National Bank of Princeton. The initial meeting of the Princeton City Council to consider this request occurred on November 27, 1981, the day after Thanksgiving. The meeting was later continued until the date at which the ordinance in question was adopted. John Potter and E. P. Becker, Inc. (Beckers) claimed that the proposed “Convenient Food Mart” would be in direct competition with their existing retail businesses and filed a complaint for declaratory judgment, alleging what they believed to be certain constitutional violations by the ordinance and also claiming that the ordinance was adopted, in part, in violation of the Open Meetings Act.

The statute which plaintiffs challenge provides as follows:

“Whenever used in this Division 74, unless a different meaning clearly appears from the context:
(1) ‘Industrial project’ means any (a) capital project, including one or more buildings and other structures, improvements, machinery, and equipment whether or not on the same site or sites now existing or hereafter acquired, suitable for use by any manufacturing, industrial, research or commercial enterprise including, but not limited to, use as a factory, mill, processing plant, assembly plant, packaging plant, fabricating plant, office building, industrial distribution center, warehouse, repair, overhaul or service facility, freight terminal, research facility, test facility, commercial facility, and including also the sites thereof and other rights in land therefor whether improved or unimproved, site preparation and landscaping, and all appurtenances and facilities incidental thereto such as utilities, access roads, railroad sidings, truck docking and similar facilities, parking facilities, dockage, wharfage, and other improvements necessary or convenient thereto; or (b) any land, buildings, machinery or equipment comprising an addition to, or renovation, rehabilitation or improvement of any existing capital project.
(2) ‘Municipality’ includes any city, village or incorporated town in this State.” Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—2.
“It is hereby determined and declared that the purpose of this Division 74 is to relieve conditions of unemployment, to maintain existing levels of employment, to aid in the rehabilitation of returning veterans, and to encourage the increase of industry and commerce within this State, thereby reducing the evils attendant upon unemployment, to increase the tax base of the various municipalities of this State and to permit municipalities in this State to take as much advantage of the provisions of Section 103 of the United States Internal Revenue Code as is possible, which are all declared and determined to be public purposes and for the public safety, benefit and welfare of the residents of this State.” Ill. Rev. Stat. 1981, ch. 24, par. 11— 74-3.

The plaintiffs’ constitutional arguments allege that the Industrial Project Revenue Bond Act (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—1 et seq.) contravenes rights guaranteed by the fourteenth amendment of the United States Constitution, and by article I, section 2 of the Constitution of the State of Illinois. These constitutional provisions, of course, guarantee the fundamental rights to due process of law and to equal protection of the laws.

The plaintiffs frame their constitutional arguments exclusively in terms of equal protection. Notwithstanding this premise, however, the plaintiffs offer no authority or analysis which is based on equal protection. The authorities upon which they rely appear to focus on the wholly different question of whether municipal bond financing of private industry embodies a public purpose.

The “public purpose” analysis rests, in part, upon the long-settled principle that the imposition of taxes for nonpublic purposes contravenes due process of Jaw. (Green v. Frazier (1920), 253 U.S. 233, 64 L. Ed. 878, 40 S. Ct. 499; Schuler v. Board of Education (1938), 370 Ill. 107, 18 N.E.2d 174.) The analysis also rests in part upon State constitutional provisions, which typically prohibit the extension of public funds or public credit for private purposes. The Illinois Constitution of 1970, article VIII, section 1(a), provides:

“Public funds, property or credit shall be used only for public purposes.”

Neither basis for the “public purpose” analysis appears in the case at bar. The due process issue is not presented, because the Act does not in any way involve the use of tax revenues. (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807.) The “use of public funds, property, or credit” issue is not presented, because the plaintiffs did not plead that section of the State Constitution in their complaint.

The plaintiffs have therefore failed to argue the only constitutional issue (that of equal protection) which is presented by their complaint. They have argued a separate constitutional issue (that of “public purpose”) which has no basis in their complaint, and which therefore is not germane to a judgment on the pleadings. This court must therefore reject summarily the contention of the plaintiffs that the Act, or any portion of the Act, is unconstitutional. Bare contentions unsupported by argument or by citation of authority are waived on appeal. 87 Ill. 2d R. 341(e)(7); Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 243 N.E.2d 242; cf. Ill. Rev. Stat. 1977, ch. 110A, par. 341(F); L. D. Brinkman & Company-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221.

Notwithstanding our holding that inquiry into the actual constitutional validity of the Act is unwarranted, given the plaintiffs’ arguments, nevertheless we believe that it can be affirmatively shown that the Act is constitutional. Illinois case law, strongly supported by law in other jurisdictions, shows conclusively that the Act is valid under both a “public purpose” and an “equal protection” analysis.

The Illinois Supreme Court has expressly noted the general state of the common law on this issue. In People ex rel. City of Salem v. McMackin the court stated:

“It appears that as of this time (1972) the courts of approximately 31 States have found that industrial-project-revenue-bond statutes serve a public purpose. Legislatures in 48 States have adopted legislation to provide financing of this type. To date, court decisions in only 5 States have held such legislation invalid.” (53 Ill. 2d 347, 355, 291 N.E.2d 807, 813.)

See also the citation of authority from other jurisdictions compiled in People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 368 N.E.2d 915.

The Illinois courts have taken in our view a forthright and strongly articulated position directly opposed to that which is argued by the plaintiffs here. In Cremer v. Peoria Housing Authority (1948), 399 Ill. 579, 78 N.E.2d 276, the court considered an attack on the validity of a statute which empowered municipal authorities to buy real estate, and to sell it to private developers, for the stated purpose of helping to relieve a shortage of housing. The court determined that the statute was designed for a public purpose, and that it was therefore constitutional, notwithstanding the fact that private parties might profit as a result.

Ten years ago, the Illinois Supreme Court applied the Cremer doctrine specifically to the Industrial Project Revenue Bond Act, in People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807. McMackin was a mandamus action, brought by a city council to compel its mayor to issue industrial development bonds which were authorized under the Act. The mayor contended that the Act was unconstitutional, primarily on the ground that its principal purpose was to benefit private interests. The court rejected this argument. It noted, first, the preponderance of authority in other States upholding similar statutes. It concluded:

“[T]he Supreme Courts of these States approved their respective industrial-development acts and recognized that the consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classed as involving a public purpose. They all acknowledge that the broadest expansion is perhaps reached in the areas of economic welfare.” 53 Ill. 2d 347, 356, 291 N.E.2d 807, 813.

Having found the Act constitutional under the “public purpose” analysis, the court in McMackin went on to reject a number of other constitutional challenges. It found that (since the revenue bonds involve no pledge or encumbrance of public funds) there can be no argument that the Act entails due process violations. It also rejected an argument based upon an equal protection analysis. The mayor had contended that since the Act at that time spoke only of “industrial” projects, it discriminated arbitrarily between manufacturing plants and commercial establishments. The court replied:

“In limiting this course of financing to industrial and manufacturing plants, the legislature might reasonably have determined that the competitive harm suffered by the presence of another local commercial or service business would more than offset the gain in employment and economic development otherwise intended under the Act. Also, the amount of investment customarily required by industrial or manufacturing plants, as opposed to commercial establishments, presents a rational basis for the classification. We agree that in those communities which presently are rural in character and lack economic development, the first step towards providing employment and growth is most apt to be found in establishing an industrial base from which service and commercial enterprises may follow.” People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 364-65, 291 N.E.2d 807, 817-18.

The plaintiffs in the present case have seized on the foregoing language to contend that recent amendments to the Act are unconstitutional. Those amendments (enacted in 1980, by Pub. Act 81 — 1376), expanded the statute’s statement of purpose to include “the increase of *** commerce” and included under the definition of an “industrial project,” inter alia, “commercial enterprise,” “office building,” and “commercial facility.” The plaintiffs urge that, under the analysis in McMackin, municipal bonding of commercial establishments cannot be construed as a “public purpose.” We believe this argument has no merit.

In People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 368 N.E.2d 915, a mandamus proceeding was brought to compel a city’s mayor to execute general obligation bonds for the purchase of certain land. The land was to be used for the construction of a “commercial center” by a private developer, with space provided for retail stores, for offices, and for a bank. The justification for the bond issue was to promote the redevelopment of a downtown area suffering from serious urban blight. The mayor, however, urged that the bonds were “designed to bring financial reward to private developers,” and therefore were not for a “public purpose.” The supreme court, however, rejected this contention. Citing McMackin and the prevailing rule of law in other States, it held that private benefits properly could be reaped from public funds, so long as the project’s primary purpose was a public one. It specifically held, in this context, that “[sjtimulation of commercial growth” was a proper public purpose. 68 Ill. 2d 62, 75, 368 N.E.2d 915, 921.

A recent decision which reinforces McMackin and Paley is Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 415 N.E.2d 1277. In Marshall Field the court construed the constitutionality of revenue bond financing of two retail stores. It held that, under Paley and McMackin, such a project clearly has a “public purpose.” It rejected a restrictive test proposed by an objector, which would have required a showing that the private party had been “induced” to locate in the area by the issuance of bonds. Likewise, defendants’ arguments on equal protection may be presented summarily, since the plaintiffs have raised no authority on this issue. Under both the State and Federal constitutions, basic equal protection analysis examines whether the government action in question rationally furthers some legitimate, articulated State purpose. Confederation of Police v. City of Chicago (N.D. Ill. 1980), 481 F. Supp. 566, 568; People v. Finley (1980), 82 Ill. App. 3d 307, 402 N.E.2d 769; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278; People v. Grant (1978), 71 Ill. 2d 551, 377 N.E.2d 4.

Since the Act promotes legitimate State purposes in a rational manner, it does not pose a denial of equal protection. Bond-funded projects will undoubtedly create a competitive impact on already existing businesses in the State. This impact does not constitute arbitrary or invidious discrimination against such businesses. It is an incidental side effect in accomplishing the legislative purposes of the Act — reducing unemployment, expanding commerce, and enlarging municipal tax bases.

In our opinion the Act discriminates against no one. The plaintiffs are capable of applying for municipal bond financing to expand or improve their businesses, exactly as the defendants have done. Their allegation that the Act denies them equal protection is groundless, and we believe their complaint was properly dismissed.

Finally, the plaintiffs’ complaint alleges that, prior to approving the issuance of the bonds, the Princeton City Council held meeting to discuss the matter without giving public notice of those meetings. The plaintiffs alleged that, if such unannounced meetings occurred, they were in violation of the Illinois Open Meetings Act (Ill. Rev. Stat. 1981, ch. 102, par. 41 et seq.). The plaintiffs sought a declaratory judgment that such meetings were in violation of law.

The circuit court ruled, in entering judgment on the pleadings, that any such violations would not invalidate the issuance of the bonds. We believe this ruling was correct, on the basis of the law in effect when the cause of action arose. Recent decisions provide that actions taken by a public agency at meetings held in violation of the Open Meetings Act were not invalid. Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054; In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67; Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 407 N.E.2d 108; People ex rel. Byron v. Board of Trustees (1980), 90 Ill. App. 3d 88, 412 N.E.2d 1188; Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 421 N.E.2d 285.

The rule of these decisions has since been modified by a statutory amendment which took effect on January 1, 1982. The amendment (Pub. Act 82 — 378) provides as follows:

“(c) The court, having due regard for orderly administration and the public interest, as well as for the interests of the parties, may grant such equitable relief as it deems appropriate, including issuance of a writ of mandamus requiring that a meeting be open to the public, granting an injunction against future violations of this Act, ordering the public body to make available to the public such portion of the minutes of a meeting as is not authorized to be kept confidential under this Act, or declaring null and void any final action taken at a closed session in violation of this Act.” (Ill. Rev. Stat. 1981, ch. 102, par. 43(c).)

Plaintiffs admit that their cause of action arose before this amendment took effect, but urge that it should be given retroactive application.

We note, however, that in the absence of express language declaring otherwise, an amendatory act is ordinarily construed as being prospective in operation. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034.) The amendment to the Open Meetings Act in question here contains no express declaration that the law should work retroactively, and therefore we believe the standard presumption should apply. Moreover, the legislature provided an effective date four months after the law was passed, thus indicating its purpose that the amendment should apply prospectively only. See Pub. Act 82-378.

A prospective application of the amendment is further necessitated by the potentially disruptive effects of retroactivity. In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.

It is apparent here that the defendants have entered into a tripartite agreement whereby the city of Princeton promised to issue bonds, the Citizens First National Bank of Princeton promised to purchase those bonds, and the Judges promised to use the proceeds of the sale of the bonds to construct a specified facility. Each of these parties can enforce the obligations of the others. Thus, they all enjoy vested contract rights, which could be destroyed if this court grants retroactive application to the amendments to the Open Meetings Act. Such impairment of contract rights, we believe, is unconstitutional under both the State and Federal constitutions. Ill. Const. 1970, art. I, sec. 16; U.S. Const, art. I, sec. 10, cl. 1; McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d Ill. 419 N.E.2d 608.

For the foregoing reasons the judgment of the circuit court of Bureau County is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.

      The Act allows municipalities to finance industrial and other projects by issuing their tax-free bonds in return for investment capital. Low rates of interest thus can be obtained on borrowed money, for the purpose of encouraging local development. The Act provides (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—7) that repayment of the bonds may be secured through the terms of rent charged for use of the project, once developed, through a pledge of income and revenues from the project, or through a mortgage of the project to the bondholders. However, the Act explicitly provides that there is no obligation on the part of the municipality itself to guarantee payment of the bonds (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 74—10).


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARY VERSTAT et al., Defendants-Appellees.
    Second District
    Nos. 81-919, 81-975, 81-1013 through 81-1018, 81-1023, 82-1, 82-26 cons.
    Opinion filed January 26, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Joseph E. Voelkl and Joseph Moschetti, both of Lisle, and John T. Perry, of Wheaton, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals from the judgments of “acquittal” of 11 defendants who were charged separately with various misdemeanor and traffic violations in the court below and whose cases were consolidated on appeal by this court. Since each case involves a similar though not identical procedural history, we briefly set out the relevant facts in the record in each of the 11 cases.

Appeal No. 81 — 919. The defendant, Mary Verstat, was charged by complaint with unlawful sale of alcoholic liquor to a minor (Ill. Rev. Stat. 1981, ch. 43, par. 131). After arraignment, the case was set for trial on September 28, 1981, and then continued to October 28, 1981, after the court granted a continuance requested by the State upon its affidavit which represented that a material witness, Officer Panek, would be “away on leave.” On October 28, 1981, the defendant and her attorney appeared for the scheduled jury trial; the State stipulated that the court enter an order to suppress any statements Verstat made on the way to the police station or while in custody; the State then orally requested a continuance because its main witness, who was also charged with an offense, would not testify until his case was disposed of; the State requested a four-week continuance which the defendant opposed; the trial judge, the Honorable C. Andrew Hayton, stated there were insufficient grounds for a continuance and denied the continuance; the State then moved to nol-pros, which was denied by the trial court after the State indicated it might refile the case; the trial court then swore in the defendant, asked her her name and address, and whether she committed the offense; upon her denial that she committed the offense, the trial court found her not guilty.

Appeal No. 81 — 975. The defendant, David W. Ek, was charged by complaint with battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3(a)(1)). He failed to appear on August 19, 1981, and his bond was ordered forfeited. On September 23, 1981, defendant appeared and the case was set for a bench trial on November 17, 1981. The defendant appeared pro se on November 17, 1981, ready for trial; the State orally moved for a continuance, stating only that its witnesses were not present; the trial judge, the Honorable C. Andrew Hayton, denied the motion for continuance; the State then moved to nol-pros, which was also denied even though the State indicated it would not refile; the trial court then swore in the defendant, asked him his name and address, and whether he committed the offense; upon his denial that he committed the offense, the court found him not guilty.

Appeal No. 81 — 1017. The defendant, Charles M. Sitkowski, was charged by a uniform citation and complaint ticket with driving while license suspended (Ill. Rev. Stat. 1981, ch. 95V2, par. 6 — 303). Defendant failed to appear, and an arrest warrant was issued. After his arrest on July 13, 1981, the case was continued to August 11, 1981, then continued to October 6, 1981, then reset for October 20, 1981, for the setting of a trial date, which was thereafter set for November 23, 1981. It appears that the State sought one of these continuances. On November 23, 1981, defendant appeared with an attorney who filed his appearance instanter and requested a continuance; the State indicated it was not prepared to proceed and said it “would have to nolle pros”; the court asked, “you are not making a motion”; the State then joined defendant in moving for a continuance; the trial judge, the Honorable C. Andrew Hayton, denied the continuance, asked the State if it intended to refile, and denied its motion to nolpros when the prosecutor responded he could not then determine if he would refile; the trial court then swore in the defendant and asked him his name and address; the trial court then found the defendant not guilty.

Appeal No. 81 — 1013. The defendant, Randy Bibbs, was charged by three uniform citation and complaint tickets with improper backing (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 1402), no valid registration (Ill. Rev. Stat. 1981, ch. 951/2, par. 3 — 701), and driving while license suspended (Ill. Rev. Stat. 1981, ch. 951/2, par. 6 — 303). After arraignment on October 22, 1981, the case was set for a bench trial on November 24, 1981. On that date defendant and his attorney, the public defender, appeared ready for trial; the State requested a continuance stating that an officer was notified but had not appeared; the trial judge, the Honorable C. Andrew Hayton, denied the motion for continuance; the State then moved to nol-pros which the court also denied; the court then swore in the defendant, asked him his name and address, and asked the State if it wished to ask any questions; the prosecutor then asked if defendant was driving an automobile on the date charged in the tickets; the trial court sustained an objection by defendant’s counsel to the question; the court then found defendant not guilty.

Appeal No. 81 — 1015. The defendant, Michael J. Moore, was charged by complaint with assault (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 1(a)). The defendant failed to appear for arraignment and was arrested. Thereafter the case was set for a bench trial on November 24, 1981. On that date the defendant appeared pro se for trial; the State requested a continuance and the prosecutor indicated she didn’t know whether the witness was notified; the trial judge, the Honorable C. Andrew Hayton, denied the motion for continuance; the prosecutor moved to nol-pros, which was denied; the court swore in the defendant, asked him his name and address, and asked the State if it had any questions; the prosecutor asked no questions and the trial court found the defendant not guilty.

Appeal No. 81 — 1014. The defendant, Kennetli Goral, was charged by complaint with theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(1)) not exceeding $150. The case was continued once on defendant’s motion and thereafter set for a bench trial on November 24, 1981. On that date the defendant appeared pro se for trial; the State moved to nol-pros, stating its witnesses were not there; the trial judge, the Honorable C. Andrew Hayton, denied the motion, stating the motion to nol-pros was an attempt to circumvent his anticipated denial of a motion for continuance; the trial court swore in the defendant, asked him his name and address, and asked the prosecutor if she had any questions; the prosecutor objected to the proceedings being carried on and declined to ask any questions; the trial court found the defendant not guilty and further stated that this was a continuing course of conduct by the State’s Attorneys office of Du Page County and that he had a right to control his court call.

Appeal No. 81 — 1018. The defendant, Joseph Strickland, was charged by three uniform traffic citation and complaint tickets with improper lane usage (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 708), illegal transportation of alcoholic liquor (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 502), and driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95^2, par. 11 — 501(a)). The cases were set for a bench trial on September 29, 1981. The State filed its affidavit requesting a continuance, alleging therein that the State trooper would be on vacation on September 29. The cases were continued to November 24, 1981. On that date the defendant and his attorney appeared ready for trial; the prosecutor stated its witnesses were not present and he was not sure whether they were notified; the trial judge, the Honorable C. Andrew Hayton, stated he was denying the motion for continuance which, in fact, had not been requested; the prosecutor, instead, moved to nol-pros, which was denied by the court, who stated that the nolle prosequi was an attempt to circumvent his anticipated denial of a motion for continuance; the trial court swore in the defendant, asked him his name and address, and asked the prosecutor if he had any questions; the prosecutor objected to the proceedings and asked no questions; the trial court then found the defendant not guilty.

Appeal No. 81 — 1023. The defendant, Dennis C. Roggelin, was charged by complaint with criminal damage to property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a)), resisting a peace officer (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1), and criminal trespass to land (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 3(a)). On the date set for trial, November 24, 1981, the defendant appeared pro se ready for trial; the prosecutor indicated she had the same problem as in the other cases that the witnesses had not appeared and she could not say whether they were notified; the prosecutor then moved to nol-pros; the trial judge, the Honorable C. Andrew Hayton, denied the motion, noting this had occurred in over half of the cases on call that morning; the trial court then swore in the defendant, asked him his name and address, and then found him not guilty.

Appeal No. 81 — 1016. The defendant, Wesley A. Plohr, was charged by complaint with disorderly conduct (Ill. Rev. Stat. 1981, ch. 38, par. 26 — 1(a)(1)). The defendant failed to appear on more than one occasion each of which led to a bond forfeiture which was later vacated. Thereafter the case was set for trial for October 23, 1981. The State was granted a continuance from that trial date on its affidavit that a material witness was under medical care and receiving radiation treatment. Trial was set for November 25, 1981. On that day the defendant and his attorney appeared ready for trial; the State presented an affidavit that the same witness was in the hospital and was unavailable; the trial judge, the Honorable C. Andrew Hayton, questioned the prosecutor concerning when the witness would be out of the hospital and then denied the motion for continuance; the State moved to nol-pros; the trial court denied the motion after the prosecutor refused to represent that it would not refile charges; the court stated the prosecutor was trying to circumvent his denial of the motion to continue; the trial court swore in the defendant, asked him his name and address, and asked if the State had any evidence to present; the prosecutor declined to proceed, and the trial court found the defendant not guilty.

Appeal No. 82 — 1. The defendant, Laura Foster, was charged by complaint with obstructing a peace officer (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1). On December 8, 1981, the date set for trial, the defendant appeared pro se; the State moved for a continuance and filed an affidavit representing that Officer LaPointe could not be in court because he would be in traffic court on that day; the trial judge, the Honorable John J. Nelligan, denied the motion, stating that the State did not make a sufficient showing of due diligence; the State moved to nol-pros which was never ruled upon; the trial court then swore in the defendant, asked her her name and address, and asked the prosecutor if he had any questions; after the prosecutor indicated he had no questions, the trial court found the defendant not guilty.

Appeal No. 82 — 26. The defendant, Paul L. Williams, was charged by complaints with theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1)) not exceeding $150, unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(a)(1)), contributing to the delinquency of a child (Ill. Rev. Stat. 1981, ch. 23, par. 2361a), and improper use of registration (Ill. Rev. Stat. 1981, ch. 9572, par. 3 — 703). On the date set for trial, the defendant appeared pro se ready for trial; the prosecutor stated he notified the witnesses the night before but they were “unable to be here this morning”; the State requested a continuance; the trial judge, the Honorable C. Andrew Hayton, denied the motion for continuance; the prosecutor moved to nol-pros, indicating he did not know if he would refile charges; the trial court denied the motion and stated that this was an attempt to circumvent the denial of the motion for continuance; the trial court swore in the defendant, asked him his name and address, and asked the prosecutor if he had any questions; after the prosecutor indicated he had no questions, the trial court found defendant not guilty.

Only two of the defendants, Bibbs and Strickland, have filed appellate briefs, and the defendant Verstat has filed a motion to dismiss the State’s appeal. Nonetheless, we review all the cases under the guidelines prescribed in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The State maintains that the proceedings below which resulted in judgments of “acquittal” for all 11 defendants did not constitute trials, but were dismissals of the cases which the State may appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604 (a)(1)). In the appellate briefs filed and in the motion to dismiss the State’s appeal, the arguments are raised that the State’s appeal of the cases is improper because: these are judgments of acquittals not appealable under the Illinois Constitution; the defendants are placed in double jeopardy by these appeals; and the appeals constitute prosecutorial vindictiveness. Initially, we must address these questions before proceeding to the merits of the appeals.

Generally, the State may not appeal from a judgment of acquittal. (Ill. Const. 1970, art. VI, sec. 6; see also People v. Van Cleve (1982), 89 Ill. 2d 298, 432 N.E.2d 837; People v. Pearson (1973), 16 Ill. App. 3d 543, 549, 306 N.E.2d 539.) However, Supreme Court Rule 604(a)(1) provides that the State may appeal from a judgment “the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963.” (87 Ill. 2d R. 604(a)(1).) This rule has been interpreted to allow the State to appeal from any judgment which has the substantive effect of a dismissal even if the ground for such dismissal is not contained in section 114—1. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244; People v. Oswald (1982), 106 Ill. App. 3d 645, 648-49, 435 N.E.2d 1369; People v. Grimm (1979), 74 Ill. App. 3d 514, 515-16, 392 N.E.2d 1138.) Further, the fact that the trial court denominates its action an “acquittal” is not controlling for the purposes of deciding whether the judgment is actually a nonappealable acquittal or merely an appealable dismissal. People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8; People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117.

The “trials” conducted below were essentially the same in all 11 cases. Upon the trial court’s denial of the State’s motion for continuance which was requested in most of the cases, and its further denial of the State’s motion to nol-pros in all 11 cases, the court on its own initiative swore in the defendant, asked several preliminary questions, and found the defendant not guilty without further evidence. The State did not participate in any of the trials except as to the defendant Bibbs, wherein the prosecutor’s attempt to question Bibbs was disallowed on objection by defense counsel. We conclude that the “trials” below in all 11 cases were shams. Each was an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution. (People v. Deems (1980), 81 Ill. 2d 384, 389, 410 N.E.2d 8; People v. Edwards (1981), 97 Ill. App. 3d 407, 411-12, 422 N.E.2d 1117.) As held in Edwards, the fact that a defendant testifies is not a sufficient distinction from the other similar circumstances in Deems to warrant a departure from the rationale of the court in Deems. There were no trials. The State did not attempt to convict the defendants and, therefore, the “acquittals” amounted to dismissals which are appealable by the State pursuant to Supreme Court Rule 604(a)(1).

While a double jeopardy argument is also advanced, we deem that contention under the facts here to have been sufficiently answered and rejected in both Deems and Edwards not to warrant further discussion herein.

Defendant Verstat also argues in her motion to dismiss the appeal that there is “ample evidence of the People’s harassment of the trial court” and that the “dubious and unfounded appeals” here are in bad faith and constitute prosecutorial vindictiveness as recognized in People v. Johnson (1981), 102 Ill. App. 3d 1056, 430 N.E.2d 207. We fail to perceive the import of this argument as it applies to our decision in Johnson. The situation here involves State appeals, whereas Johnson and other cases considering prosecutorial vindictiveness analyze the prosecutor’s actions upon a defendant’s pursuit of his right to appeal to seek reversal and/or retrial. Also, United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, cited by Verstat, has no relevance to the procedures here. Jorn involved a double jeopardy question upon a mistrial declared by the trial judge absent a motion for such by the defendant.

Accordingly, the State may appeal from the judgments entered below, and we deny the motion to dismiss the appeal.

Turning to the merits of these appeals, it is evident that the State seeks reversal on two bases. It maintains first that the denial of the State’s motions for continuance was an abuse of discretion. The State additionally argues that the trial court abused its limited discretion when it denied the motions to nol-pros.

Generally, whether to grant or to deny a motion for continuance is within the sound discretion of the trial court, and the diligence shown by the movant is to be considered in weighing the exercise of discretion. (Ill. Rev. Stat. 1981, ch. 38, par. 114—4(e); People v. Williams (1982), 92 Ill. 2d 109, 116, 440 N.E.2d 843.) The trial court’s decision to grant or deny a continuance depends on the facts and circumstances existing at the time of the request (People v. King (1977), 66 Ill. 2d 551, 557, 363 N.E.2d 838), and its decision will not be disturbed on review absent a showing of a clear abuse of discretion. (People v. Hayes (1972), 52 Ill. 2d 170, 287 N.E.2d 465.) As to defendants, unless it appears that the court’s refusal to grant a continuance embarrassed the accused in preparing his defense or prejudiced his rights, the conviction should be affirmed. (People v. Trolia (1982), 107 Ill. App. 3d 487, 498, 437 N.E.2d 804; People v. Reyes (1981), 102 Ill. App. 3d 820, 836, 429 N.E.2d 1277; see People v. Lane (1982), 106 Ill. App. 3d 793, 801, 436 N.E.2d 704.) In reviewing a denial of the State’s motion for continuance, it has been held that an abuse occurred where it was the State’s first request for a continuance and the missing witness was ill (People v. Grimm (1979), 74 Ill. App. 3d 514, 515, 392 N.E.2d 1138), and where it was the State’s first request for a continuance, the police officer-witnesses were on furlough, and two codefendants had been granted five-day continuances. (People v. Edwards (1981), 97 Ill. App. 3d 407, 412, 422 N.E.2d 1117.) However, a trial court should deny continuances sought by the State where a defendant’s right to a speedy trial pursuant to section 103—5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5) will be improperly obstructed. People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136; People v. Richards (1980), 81 Ill. 2d 454, 410 N.E.2d 833.

In the case at bar, none of the defendants have claimed that the continuance, if granted, would have impeded their statutory or constitutional right to a speedy trial. None of the defendants were in custody nor had any of them demanded a speedy trial pursuant to section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(b)). The charges against the defendants had been instituted in most cases no more than five months prior to the trial court’s judgments of acquittal. Outside of the speedy trial provisions of the Code of Criminal Procedure of 1963, a motion for continuance is generally governed by section 114 — 4 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4) and applicable case law.

The parties to these appeals have not cited or discussed an amendment to subsection (e) of 114 — 4 by Public Act 81 — 1166, effective July 1, 1980 (1979 Ill. Laws 4456), which added to subsection (e) the second and third sentences of the first paragraph and the entire second paragraph. Neither have we found an Illinois reviewing court opinion which has considered the effect of this amendment. Section 114 — 4(e) provides:

“(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where 1 year has expired since the filing of an information or indictment, filed after January 1, 1980, if the court finds that the State has failed to use due diligence in bringing the case to trial, the court may, after a hearing had on the cause, on its own motion, dismiss the information or indictment. Any demand that the defendant had made for a speedy trial under Section 103 — 5 of this code shall not abate if the State files a new information or the grand jury reindicts in the cause.
After a hearing has been held upon the issue of the State’s diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall be not less than 14 nor more than 30 days from the date of the court’s finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this section.” (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e).)

By its terms, the amendment is applicable to an indictment (Ill. Rev. Stat. 1981, ch. 38, par. 102 — 11) and an information (Ill. Rev. Stat. 1981, ch. 38, par. 102 — 12), neither of which is present here since all the defendants were charged by complaint (Ill. Rev. Stat. 1981, ch. 38, par. 102 — 9) or by uniform traffic citation and complaint ticket. Nonetheless, while inapplicable here, the amendment does evince a legislative intent to address the issue of the State’s due diligence in bringing a case to trial, and statutorily authorizes, for the first time, the dismissal of the indictment or information by the court for failure to comply with its term.

More relevant to the cases at hand is the first sentence of subsection (e) which provides that “[a]ll motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.” Thus, we examine the facts and circumstances existing at the time of the State’s requests for continuances to determine whether there was an abuse of discretion in denying the State’s motions for continuances in these cases. See People v. King (1977), 66 Ill. 2d 551, 557, 363 N.E.2d 838.

In appeals Nos. 81 — 919 (Verstat), 81 — 1016 (Plohr), and 82-1 (Foster), we believe the State’s motions for continuances were reasonable requests, that due diligence was shown, and that the motions should have been granted. Each motion for continuance was based either upon the availability of a material witness who was charged in another case and would not testify until his case was completed (Verstat), the unavailability of a material witness who was in the hospital (Plohr), or the unavailability of a material witness who was in traffic court on the day set for trial (Foster). Section 114 — 4(c)(2) (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(c)(2)) provides that a motion for continuance made by the State more than 30 days after arraignment may be granted when “[a] material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony ***.” We conclude that the trial court abused its discretion in each of these three cases under these circumstances when it denied the State’s motion for a continuance. See People v. Edwards (1981), 97 Ill. App. 3d 407, 412, 422 N.E.2d 1117; People v. Grimm (1979), 74 Ill. App. 3d 514, 515, 392 N.E.2d 1138.

In appeals Nos. 81 — 1013 (Bibbs) and 82 — 26 (Williams), the basis for the State’s requests for continuance was, as in the three cases above, the unavailability of a material witness. However, the State was unable to give a reason for the nonappearance of the witness (Bibbs), or was unable to secure a nonofficer witness notified by telephone (Williams). On the other hand, no prior continuance had been sought by the State, and the State affirmatively represented that the witnesses had been notified. The trial court should have granted continuances under these facts, and therefore, abused its discretion.

In appeals Nos. 81 — 975 (Ek), 81 — 1017 (Sitkowski), and 81 — 1015 (Moore), there is no indication in the record of a subpoena for the witnesses or a representation by the State that the witnesses were otherwise notified to appear for trial, and no reason was given by the State for a continuance other than that its witness was not there. Although this was the first request for a continuance by the State in the cases of Ek and Moore, and the second in the case of Sitkowski, there is no showing in the record of diligence on the part of the movant. (See Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e).) Thus, assuming it would not be an abuse of discretion to deny the State a continuance in these three cases, we still must determine whether the procedures used by the trial judge in conducting a “trial” which resulted in judgments of “acquittal” were improper under the circumstances presented.

There is no statutory authority to dismiss an indictment, information or complaint on the basis of the failure of the State to proceed after the denial of its motion for continuance since that is not one of the grounds listed for dismissal in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 1). (People v. Uplinger (1976), 45 Ill. App. 3d 558, 560-61, 359 N.E.2d 1052, aff’d (1977), 69 Ill. 2d 181, 370 N.E.2d 1054.) It has also been held that the court on its own motion before trial cannot dismiss a charge for want of prosecution where the State fails to appear (People v. Guido (1973), 11 Ill. App. 3d 1067, 297 N.E.2d 18), or where a State motion for continuance joined by the defendant has been denied. (People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97.) The amendment to subsection (e) of section 114 — 4, yet untested in any Illinois reviewing court and which purports to authorize a dismissal for the State’s failure to use due diligence in bringing a case to trial, is inapplicable here since it applies to indictments and informations. Nor are the dismissals here based upon a denial of due process such as that discussed in People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

In People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, our supreme court found that a “trial” conducted after the denial of a State motion for continuance was a “sham,” an artifice employed by the trial judge to achieve the result of a dismissal with prejudice for want of prosecution. In Deems, the prosecutor refused to participate in the “trial” and the trial judge found the defendant not guilty after swearing him in, but taking no testimony. The supreme court then stated that “[s]uch a ‘trial’ might conceivably be appropriate in extraordinary circumstances (People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43; People ex rel. Elliot v. Covelli (1953), 415 Ill. 79) ***.” (People v. Deems (1980), 81 Ill. 2d 384, 389, 410 N.E.2d 8.) However, no extraordinary circumstances are present here relevant to Daniels and Elliott, the cases cited in Deems, which justify the tactic employed by the trial judge in conducting a trial without the State’s participation and over its objection.

Finally, a dismissal may be warranted where a continuance obtained by the State improperly obstructed a defendant’s right to a speedy trial (People v. Richards (1980), 81 Ill. 2d 454, 459, 410 N.E.2d 833), or where the State did not bring the defendant to trial within the statutory time limits prescribed in section 103 — 5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5.) Here, the defendants were on bond, no demand for speedy trial was made and, thus, this statute is not violated.

In an analogous situation, it has been held that, in the absence of statutory authority, dismissal of an indictment is not an appropriate remedy for a violation of a defendant’s right to a prompt preliminary hearing under article I, section 7, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 7). People v. Anderson (1981), 92 Ill. App. 3d 849, 851, 416 N.E.2d 78; People v. Farrell (1980), 89 Ill. App. 3d 262, 263-64, 411 N.E.2d 927; People v. Eisele (1979), 77 Ill. App. 3d 766, 771, 396 N.E.2d 662.

Even without the authority to dismiss the complaints under these circumstances, the trial court is not powerless to control its docket. The court has contempt powers (see People v. Guido (1973), 11 Ill. App. 3d 1067, 1070, 297 N.E.2d 18), and the constitutional right to a speedy trial and the statutory enactments requiring a trial within a specified time preserve the court’s interest in terminating cases in which the prosecutor has not acted. Also, the amendment to subsection (e) of section 114 — 4 by Public Act 81 — 1166, referred to above, now appears to give the court power to dismiss an information or indictment where the State has failed to use due diligence in pursuing prosecution. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e).) Thus, although the court did not abuse its discretion in denying a continuance in the cases of Ek, Sitkowski, and Moore, the trial court was without authority to proceed to a “trial” as it did since the “trial” was, in effect, a dismissal which the court lacked the authority to order.

In the remaining three appeals, Nos. 81 — 1014 (Coral), 81 — 1018 (Strickland), and 81 — 1023 (Roggelin), the State did not request a continuance but, instead, moved to nol-pros. This tactical maneuver was obviously designed to circumvent an anticipated denial of its motion for dontinuance by the trial court had such a request been made. This expectation was not without some validity, as other State motions for continuance under similar circumstances had been denied by the same judge on previous days and on that same day.

The State argues on appeal that the “State’s Attorney has nearly unfettered discretion in determining whether to commence prosecution or nol-pros unless his actions are ‘vexatious or repetitious.’ ” As support for this contention the State cites People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951, wherein the appellate court stated that “[ujnless his actions are vexatious or repetitious, the State’s Attorney has the absolute power to nolle pros a charge and if it is refused, a court may be compelled to enter an order of nolle pros. (People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43, 47-48, 132 N.E.2d 507; People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 89-90, 112 N.E.2d 156.) The decision to nolle pros lies within the nearly unfettered discretion of the State’s Attorney and could be used to manipulate proceedings in the same way as an SOL.” 86 Ill. App. 3d 457, 467, 407 N.E.2d 951.

The nature of a nolle prosequi was explained in People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265, as follows:

“ ‘A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.’ [Citation.] Again, it has been said that the ordinary effect of a nolle prosequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.” (394 Ill. 177,179, 68 N.E.2d 265.)

It has been recognized that a State motion to dismiss and a motion to nol-pros are equivalent. (People v. Maher (1979), 77 Ill. App. 3d 488, 490, 396 N.E .2d 77.) The supreme court cases have recognized a distinction between the Attorney General’s power to nol-pros and that of the State’s Attorney. The Attorney General has the absolute power to nol-pros at all stages of a criminal prosecution before the jury is empanelled or before trial of the case, except that the action cannot be capriciously or vexatiously repetitious. (People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43, 47-48, 132 N.E.2d 507.) As discussed in People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 112 N.E.2d 156, the power to nol-pros in the Attorney General is derived from His powers at common law since neither under the constitution nor by specific statutory authority is such authority provided. (415 Ill. 79, 83-89, 112 N.E.2d 156.) On the other hand, the State’s Attorney is a statutory, not a common law officer and therefore does not possess absolute and unlimited power to enter a nolle prosequi, but must obtain the consent and approval of the court. (People ex rel. Hoyne v. Newcomer (1918), 284 Ill. 315, 323-25, 120 N.E. 244.) While this distinction between the power of the Attorney General and the State’s Attorney in Newcomer may have been, in part, predicated on the fact that a municipal judge of Chicago was then vested by law with discretion in the manner of prosecution of the particular offenses involved (People ex rel. Kunstman v. Nagano (1945), 389 Ill. 231, 249-50, 59 N.E.2d 96), reference in one subsequent supreme court case still states that the State’s Attorney may not enter a nolle prosequi without the approval of the court. (People v. Sears (1971), 49 Ill. 2d 14, 29, 273 N.E.2d 380.) Our supreme court, however, has not further defined the bounds of the court’s discretion in entertaining the State’s Attorney’s motion to nol-pros. More recent appellate court decisions either make no distinction in the court’s discretion between requests for nol-pros by the Attorney General and the State’s Attorney (People v. Sanders (1980), 86 Ill. App. 3d 457, 467, 407 N.E.2d 951), or simply recognize that the consent and approval of the court is necessary before the State’s Attorney may enter a nolle prosequi (People v. Mooar (1981), 92 Ill. App. 3d 852, 853, 416 N.E.2d 81; People v. Rotramel (1972), 5 Ill. App. 3d 196, 199, 282 N.E.2d 484), or state that the State’s Attorney has broad discretion to nol-pros which the court is required to enter absent a clear abuse of discretion by the prosecutor. People v. Baes (1981), 94 Ill. App. 3d 741, 746, 419 N.E.2d 47.

We discern no practical reason why the standard of the discretion vested in the court to review a State’s Attorney’s request to nol-pros should not be governed by the determination of whether the State’s Attorney’s action is “capriciously or vexatiously repetitious.” Sufficient safeguards for a defendant are contained in the speedy trial provisions of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5) and in the court’s inherent authority to insure the defendant a fair trial. People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

Section 5(1) of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1981, ch. 14, par. 5(1)) gives the State’s Attorney the duty “[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal *** in which the people of the State or county may be concerned.” Further support for the State’s Attorney’s authority to control the initiation and pursuance of a criminal prosecution can be gleaned from People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, wherein our supreme court recently reaffirmed that a trial judge cannot assume the role of the prosecutor and determine which criminal offense should be charged and then proceed to dispose of that offense over the State’s objection.

It has been held that the statutory authority of the State’s Attorney to prosecute impliedly confers authority to nol-pros when, in his judgment, the prosecution should not continue. (Creek v. Clark (1980), 91 Ill. App. 3d 429, 435, 414 N.E.2d 816 rev’d on other grounds (1981), 88 Ill. 2d 54, 429 N.E.2d 1199; People v. Byrnes (1975), 34 Ill. App. 3d 983, 986, 341 N.E.2d 729.) Were courts given any broader discretion than what we have determined above, the result would tend to restrict the statutory authority reposed in the State’s Attorney. This conclusion does not render the court without power to control its calendar since it still has inherent contempt powers for wilful violations of its orders.

Under the circumstances present here in the prosecutions against the defendants Goral, Strickland, and Roggelin, in which the trial court denied the State’s requests to nol-pros, we find the court’s actions improper since there is no showing that the prosecutions were capriciously or vexatiously repetitious. In fact, there is no indication in these three cases whether or not the prosecutor intended to refile charges later. The State may well determine later that a witness’ failure to appear indicates a reluctance to testify which could influence a decision whether to refile charges. There is no record of harassment of any of the defendants by multiple continuances which might also suggest a prosecution in the nature of repetitious action to be deemed capricious or vexatious.

We are compelled to observe that the large number of cases occurring over such a short period of time with such a similar pattern of nonappearance of witnesses on the day of trial points to a serious administrative problem for which the State’s Attorney of Du Page County must assume responsibility. Justifiably, the trial court here expressed concern over the repeated requests for continuances by the prosecutor due to the failure of witnesses to appear where the prosecutor could not offer, in most cases, an explanation why the witness did not appear or say whether the witness had been notified by the State to appear. Rescheduling trials has an obvious adverse effect on the prompt and efficient administration of justice and causes multiple appearances and unnecessary wasting of judicial, prosecutorial, and defense resources.

For the foregoing reasons, we reverse the judgments of “acquittal” in these 11 cases, and remand to the circuit court of Du Page County.

Reversed and remanded.

NASH and LINDBERG, JJ., concur.