author: Mr, JUSTICE CREES

text:
    Ernest Franklin Green, Plaintiff-Appellant, v. Lloyd McClelland, Defendant-Appellee—(Clyde Weder, Defendant.)
    (No. 72-142;
    Fifth District
    February 1, 1973.

      Rehearing denied March 26, 1973.

    William E. Brandt, of Madison, for appellant.
    James E. Gorman, of Reed, Armstrong, Gorman and Coffey, of Edwardsville, for appellee.
   Mr, JUSTICE CREES

delivered the opinion of the court:

This appeal comes on as the result of a personal injury action wherein Plaintiff alleges that he suffered damages as the result of injuries received when his foot was caught in the mechanism of a com picker. The corn picker was owned by the Appellee, Lloyd McClelland, who was Plaintiffs employer, and had been purchased from co-defendant Clyde Weder. After deposing Plaintiff and completing other preliminary discovery, Appellee filed a motion for summary judgment which was granted, and it is from this judgment that plaintiff now appeals. The Defendant Weder has no part in this appeal and the case is still pending as to him.

The court granted summary judgment on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff contends that there exists a material factual dispute as to the question of contributory negligence which should have properly been determined by a jury.

The facts surrounding the alleged accident were developed solely from the deposition of the plaintiff inasmuch as there were no other eye witnesses to the incident. Plaintiff is appellee’s son-in-law and was working on appellee’s farm at an unspecified wage in order to repay a debt owed appellee. On the day in question, plaintiff realized that the com needed picking and without direction or instruction from appellee undertook the job. He used a tractor and corn picker owned by appellee. The corn picker was operated by a power take-off on the tractor which was connected by a universal joint which rotates at a rapid rate of speed when in operation. When the tractor is level, this universal joint will be directly beneath the seat and in the middle of the tractor. There was no guard or protective shield over the universal joint and power takeoff. The accident occurred after plaintiff had been working for approximately one-half hour, and he was in the process of making a right turn at the end of a row. The tractor seat, as it was designed to do, moved to the left as he made his turn from which position plaintiff attempted to look back over his shoulder to ascertain whether the equipment was properly aligned. In making the maneuver, he swung his right foot toward the right side of the tractor to a point directly over the spinning universal joint. His right trouser leg became entangled in the spinning universal joint pulling his foot into the mechanism whereby he incurred the injuries of which he complains.

Plaintiff first had experience in operating regular farm machinery when he was fourteen years old. By virtue of this past experience with such equipment and his profession as a heavy machinery operator, plaintiff had a clear understanding of all the mechanical functions of the power take-off shaft and as a consequence felt capable of and did operate the machine without instruction. The tractor is equipped with foot rests, and it was plaintiff’s testimony that he was not required to do anything with his feet in order to accomplish the turn which he was executing when injured and that the entire maneuver could have been accomplished through the use of his hands in steering the tractor. It was also brought out that plaintiff had noticed that other equipment in use on the farm did employ a protective guard around the universal joint and power take-off, and that he had commented upon the lack of a guard over the mechanism on this equipment. He further testified that he knew that as he was making the turn the universal joint was spinning and that if he got his pants too close thereto, they might get caught therein.

The major thrust of plaintiff’s argument seems to be directed toward tire theory that the mechanism was dangerous and that appellee had knowledge of the dangerous condition which he failed to impart to plaintiff. In this regard it was brought out that appellee himself had caught his trouser leg in the universal joint on this tractor on the day previous to plaintiff’s injury but had escaped injury. Appellee failed to inform plaintiff of this occurrence or to warn him of the clear danger thereby discovered. These facts, it is claimed, create a sufficient issue to go to the jury and to require a reversal of the summary judgment.

Summary judgment is a drastic method of disposing of litigation (Watkins v. Lewis, 96 Ill.App.2d 182, 237 N.E.2d 830), but it nevertheless remains an important tool in the administration of justice and its use in proper cases is to be encouraged. (Texaco, Inc. v. Kane County Oil, 96 Ill.App.2d 383, 238 N.E.2d 622.) The function of a court, when presented with a motion for summary judgment, is to determine whether a genuine issue exists as to a material fact. (Brainerd v. First Lake County National Bank of Libertyville, 109 Ill.App.2d 251, 248 N.E.2d 542.) Thus, although the issue of contributory negligence is ordinarily to be decided by a jury, where there is no genuine issue of material fact to be decided, there is no purpose in proceeding to trial. (Witzig v. Illinois Power Co., 114 Ill.App.2d 139, 251 N.E.2d 902.) The trial court found that there was no issue of fact in regard to plaintiff’s duty to remain free of contributory negligence and that he was, as a matter of law, guilty of such conduct. We agree. •

All of the evidence establishes that the plaintiff was familiar with the operation and function of the mechanism with which he was injured. He recognized the danger inherent in. its operation and commented specifically about the lack of any safety or protective guard over the machinery. Despite this foreknowledge, plaintiff acted in a manner inconsistent with the exercise of ordinary care under the circumstances then pertaining.

In plaintiff’s deposition he was questioned concerning his prescience as follows: “Q. While you were making those turns and operating the equipment, you did realize this shaft was down there and operating, right? A. Yes. Q. Did you realize that, as you were doing this, if your pants leg got too close to that joint, it might get caught? A. Yes, but I kept it away; tried to.” In the case of Howell v. Briney, 125 Ill.App.2d 246, 260 N.E.2d 858, the plaintiff was injured when swinging his overall-covered leg over the universal joint when a power take-off was in operation and he, as does plaintiff here, admitted that he knew the unshielded universal joint was potentially dangerous when operating. The court there held that “[T]he cold, blunt fact therefore remains that when this plaintiff swung his leg over this universal joint, he negligently, carelessly and thoughtlessly swung' it over the universal joint which was known to him to be dangerous.” This observation is equally applicable to the case now before us.

It is of further significance that the work was undertaken voluntarily and that the manner and method of performing it rested in plaintiff’s sole judgment as he was in full and complete control of the operation. He testified that he was not assigned this job but voluntarily undertook its performance and that in accomplishing the turn during which he was injured, he was not required to move his feet from the foot rests provided. In the case of Ferguson v. Lounsberry, 58 Ill.App.2d 456, 462, the court found in similar circumstances that: “[T]he conclusion is inescapable that he inadvertently, unthinkingly, heedlessly, or carelessly brought his clothing into contact with the equipment. We do not facetiously say that he reached out toward it; it did not reach out toward him; his was an affirmative and voluntary action. The facts are undisputed. We would abjure our responsibilities if we did not say as a matter of law that the plaintiff was not in the exercise of due care and caution for his own safety.”

In his argument to this court plaintiff also placed great emphasis upon the fact that the pin by which the power take-off shaft was attached to the universal joint protruded and that it was this pin which caught plaintiff’s trouser leg and thereby injured him. We are not, however, dealing with a nonfunctioning or malfunctioning piece of equipment. In the case of Ferguson v. Lounsberry, 58 Ill.App.2d 456, the plaintiff contended that it was a burr on the spinning mechanism which caught him. In that case the court noted at page 462 that the equipment “* * * was in exactly the same condition it had been in * * *. Neither the lack of a shield nor the burr affected its effective functioning and the plaintiff so testified. Everything about it now known to anybody was known or should have been known to the plaintiff.” We are in agreement with this rationale. The plaintiff in this case testified that the pin in question had been in place for a long time and had not been removed, that he was aware of the mechanics of the machine and that he realized the danger inherent therein, and in view of these observations, we find nothing in the presence of the pin which would convince us to alter our decision.

There are no disputed facts bearing on the issue here presented. Plaintiff, to be sure, argues that the unprotected universal joint was dangerous and that appellee was negligent in providing plaintiff with such an inherently dangerous mechanism and in failing to warn him of the danger although he had knowledge thereof by virtue of his own experience in having his trousers caught the day previous to plaintiff’s-injury. That these allegations may form a triable issue as to appellee’s negligence cannot be denied, however, they do not establish any element of the proof of freedom from contributory negligence which is the issue to be determined. The undisputed facts establish that plaintiff’s own negligence proximately contributed to the accident which bars his right to recovery regardless of any negligence on the part of appellee.

The judgment of the Circuit Court of Madison County is therefore affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Karlovich, Defendant-Appellant.
    (No. 71-38;
    Fifth District
    March 8, 1973.
    R. Michael Fischer, of Alton, for appellant.
    No appearance for the People.
   Opinion by

Mr. JUSTICE CREBS.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Fuller, Defendant-Appellant.
    (No. 71-344;
    Fifth District
    March 8, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, for appellant.
    No appearance for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court.

Defendant, Frank Fuller, was charged with six counts of deceptive practices in violation of Ill. Rev. Stat. 1971, ch. 38, par. (7 — 1(d)), as a result of the issuance of six checks, no one of which exceeded $10 in amount. Defendant, who had been found to be indigent and was not represented by counsel, entered a guilty plea to the charges in the Circuit Court of Union County and received five years probation. On appeal the defendant maintains that the trial court erred in that it entered final judgment without first determining if there was a factual basis for the guilty plea. Defendant has raised other issues on appeal which we need not consider in view of our finding on this issue.

Before accepting the defendant’s guilty plea the judge questioned him about the particulars of the offense. Defendant stated that he had a checking account with the First National Bank of Red Bud with a balance of $114, that the bank had transferred these funds and applied them to a loan he owed the bank and had not notified him of the transfer.

Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402C), requires that there be a factual basis for a plea of guilty before the court may enter a final judgment. If these statements were correct, defendant was not guilty of the crime charged. Certainly they did not constitute a factual basis for the plea, nor were there other statements in the record which could be construed as a factual basis.

We therefore reverse and remand with instructions to allow defendant to plead anew. People v. Dugan, 4 Ill.App.3d 45, 280 N.E.2d 239.

Reverse and remand.

EBERSPACHER, P. J., and G. MORAN, J„ concur.


author: Mr. JUSTICE JONES

text:
    Andrew Towns, Plaintiff-Appellant, v. John Kessler et al., Defendants—(The Travelers Indemnity Company, Appellee.)
    (No. 72-44;
    Fifth District
    March 8, 1973.

      Chapman, Talbert & Chapman, of Granite City, (Charles W. Chapman, of counsel,) for appellant.
    Burroughs, Simpson & Wilson, of Edwardsville, (Robert W. Wilson, of counsel,) for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals from orders of court dismissing his complaint as to The Travelers Indemnity Company and denying plaintiff’s motion to strike the motion to dismiss and entering judgment in favor of the insurance company when plaintiff elected to stand upon his complaint. The trial court has found that there was no just reason for delaying enforcement or appeal of this order.

Plaintiff’s complaint alleges, in substance, that a co-defendant of The Travelers Indemnity Company was engaged in the tank car business in Madison County, Illinois, and had sold for dismantling purposes certain dilapidated tank cars to the Purdy Company where the plaintiff was employed, and that these tank cars were transported to the premises of the Purdy Company; that the plaintiff while in the exercise of ordinary care, while an employee of Purdy Company was engaged in dismantling one of the cars and was injured as a result of the negligence of The Travelers Indemnity Company which had issued directions and orders and had exerted control over the Purdy Company’s testing procedures on tire cars, and had designed, implemented, and approved the safety testing procedures of Purdy; that Travelers has involvements with the Purdy Company in that its inspectors and other representatives went on the Purdy premises periodically to inspect, direct, and/or supervise the safety precautions which were taken on said premises; that Travelers was negligent in that it (a) failed to indicate proper testing procedures to Purdy, (b) failed to properly supervise testing procedures, (c) approved improper and inadequate safety measures to be utilized by Purdy, (d) failed to indicate to Purdy that appropriate warnings should be utilized in the work carried on at Purdy, (e) negligently performed safety inspections at Purdy’s premises, (f) failed to detect and report the negligent and hazardous operations of Purdy; that as a proximate result, plaintiff sustained injuries and damages.

Defendant Travelers filed a motion to dismiss grounded on Illinois Revised Statutes, chapter 48, section 138 — 5, which provides, in pertinent part, that the employer’s insurer for workmen’s compensation is immune from civil suit of the type plaintiff filed, and that by reason of the statute, the complaint fails to state a claim upon which relief can be granted against Travelers. The motion was accompanied by an affidavit of the attorney stating that during the time mentioned in the complaint Travelers had a policy of insurance with Purdy which provided workmen’s compensation coverage, and that any “involvements” of Travelers with Purdy as alleged in the complaint were solely by virtue of its position as insurer for workmen’s compensation.

Plaintiff filed a motion to strike Travelers’ motion to dismiss based entirely upon constitutional grounds, stating that the statute involved is unconstitutional for want of due process and equal protection of the laws in violation of the fourteenth amendment of the United States Constitution, article I, section 2, of the Illinois Constitution of 1970 and article II, section 19, of the 1870 Illinois Constitution, and that it violates article I, section 12 of the 1970 Illinois Constitution or article II, section 19 of the 1870 Illinois Constitution; that the statute further violates article I, section 16 of the 1970 Constitution or article II, section 14 of the 1870 Constitution, and violates article IV, section 13, of the 1970 Constitution or article IV, section 22, of the 1870 Constitution, and violates article I, section 13, of the 1970 Constitution or article II, section 5, of the 1870 Constitution. The only questions involved in this appeal are concerned with the claims of unconstitutionality of the above cited provision of the Workmen’s Compensation Act.

The pleadings are extremely sketchy in setting forth the manner in which it is claimed that the statute violates the several articles of the constitution. From the brief filed in this court it is apparent that the plaintiff, while conceding the constitutionality of the denial of an action to the employee against his employer as being a valid classification or serving a legitimate legislative purpose, argues strenuously that the provision denying a common law or statutory action against the employer’s insurer who provides safety service, advice, or recommendations is unconstitutional. The plaintiff sets forth his position in strong language; he repeatedly asserts by epithet that the statute is “irrational,” “arbitrary,” “capricious,” “without any sound basis” and supported by “no valid reason.”

In substance, the plaintiff argues that the only party who can be constitutionally relieved from liability when workmens compensation benefits are paid is the employer. Plaintiff says that it is obvious (without any further argument than laying the claim) that the legislative restriction on liability to an insurance company is logically unthinkable.

The attorneys representing defendant, however, disagree, claiming that a majority of the states have awarded immunity to the compensation insurer and that the legislative classification is justified by (a) avoidance of double or triple payment in multiple liability, and (b) if liability results from the making of safety inspections, that these safety inspections will be withdrawn, denying the employees the benefit of the additional safety afforded by safety inspections.

This case follows a succession of events which are relevant to the purpose of the statute involved. In Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769, the Illinois Supreme Court held, construing Florida law, that a Florida statute did not grant a general contractor’s compensation insurer, who had made safety inspections, immunity from a common law action by the insured employees. In the Nelson case, the defendant and amici curiae argued that it would be against public policy to permit recovery against a compensation carrier as a third party tort feasor, contending that the result would be a curtailment of safety inspections, to the ultimate detriment of working men and their families. Our Supreme Court said, however, “Furthermore, whether we look to the law of Florida or Illinois, such a question of public policy is for the legislature not for the courts. General Properties Co. v. Greening, 154 Fla. 814, 18 So.2d 908; Illinois Western Electric Co. v. Town of Cicero, 282 Ill. 468; People ex rel. Carruthers v. Cooper, 404 Ill. 395.”

Following the Nelson decision the Illinois legislature enacted an amendment to section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat, ch. 48, sec. 138.5(a)), effective July 1, 1969, to enlarge the immunity granted there to the employer to include the employer’s insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agent or employees of any of them. Our search discloses no other case bearing upon the constitutionality of this amendment to the Illinois Workmen’s Compensation Act.

It is presumed that the General Assembly had, and acted with respect to, full knowledge and information as to the judicial decisions with respect to prior and existing law and legislation. Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill.2d 1, 248 N.E.2d 657; Nardi v. Segal, 90 Ill.App.2d 432, 234 N.E.2d 805.

We are concerned here only with the proposition of an immunity from a common law action accorded to an insurer who is alleged to have provided safety services to an employer of an injured employee subject to the Workmens Compensation Act. The Nelson case was decided with respect to Florida law rather than Illinois law and the decision is, strictly speaking, dictum as far as the law of Illinois is concerned. It is, however, very persuasive authority for the point that Illinois would recognize a common law liability against a negligent insurer providing safety services. Together with tire parties, we will assume for purposes of discussion that such a common law action does exist, absent the statute in question.

In like manner the statement of the Supreme Court in Nelson that public policy is a matter for the legislature is similarly dictum, but it is again very persuasive authority.

We are mindful that “* * * all presumptions are in favor of the constitutionality of the statute or ordinance. » * * [T]he burden of showing unconstitutionality is on the person who asserts it.” Illinois Law & Practice, Constitutional Law, sec. 68.

Considering in the aggregate for the moment the several claims of violation of the constitution, there is a common thread which may be stated to be that the general assembly may not act arbitrarily to confer privileges or immunities or to make class legislation, and the like. Similarly, it may not act arbitrarily to deny due process, equal protection or rights to a remedy and justice. Concurrently with these constitutional prohibitions is the concomitant constitutional power of the legislature to act reasonably in the exercise of the police power as the public good may require. We are put to the task, therefore, of deciding whether the apparent legislative purpose is a légitimate one in light of these constitutional requirements.

Under the statutory workmens compensation scheme, a claim for workmens compensation may be lodged against the employer, and if the injured employee desires, against the employer’s insurer. See Ill. Rev. Stat., ch. 48, sec. 138.4(g).

From the consideration of the cases involving insurance for liability under the Workmen’s Compensation Act, it appears that the insurer.acts as a sort of indemnitor of the employer. Customarily, the insurer investigates the claim, conducts the litigation through attorneys provided by it, and, if solvent, pays the awards rendered and provides the temporary compensation and medical services required by the Workmen’s Compensation and medical services required by the Workmen’s Compensation Act. As an indemnitor, the insurance company is directly financially interested in the monetary outlays which accompany the benefits and limitations provided by the Workmens Compensation Act. The insurer has at least a limited ability to select its insureds, but it also has a direct financial interest in each claim. If the insurer can encourage the use of various safety precautions and practices it would hope to reduce the amount of its expenditures for injuries to the employees. At the same time, if an individual person or employer can make use of wise safety precautions they may avoid expenditures for injury to themselves or to their employees. That a party may have a direct financial interest in safety does not in and of itself prohibit safety as a desirable end to be attained by legislation.

The law is clear that the guarantee in the fourteenth amendment to the United States Constitution with respect to the equal proection of the laws does not prohibit a state from exercising the police power by the enactment of laws for the protection of the health, safety or general welfare of the people. (See Berry v. City of Chicago, 320 Ill. 536, 151 N.E. 581; Thillens, Inc. v. Morey, 11 Ill.2d 579, 144 N.E.2d 735; appeal dismissed, 355 U.S. 606, 78 S.Ct. 538, 2 L.Ed.2d 524.) Based upon a similar public policy, the Supreme Court of Illinois held in Hodges v. Percival, 132 Ill. 53, 23 N.E. 423, that the adoption of safety devices subsequent to an occurrence was not admissible as evidence for the purpose of showing an admission of prior negligence since to do so would cause hesitation in adoption of changes which will prevent the occurrence of similar accidents.

It is significant that the plaintiff does not argue that the statutory immunity extended to insurers, etc., fails to promote safety and because of the failure is an unreasonable or arbitrary classification. Instead, the plaintiff insists that the only valid classification would be based upon the relationship of employer and employee. We agree that on many prior occasions, the courts of this State have held that employer and employee may be a valid classification for purposes of due process, equal protection, and denial of remedies, but we are aware of no reason or any holding to the effect that this is the only valid classification. Insofar as we can determine, it would promote safety as effectively for insurers to make recommendations on safety practices or to install them as it would for others to do so. Since they are not mere volunteers or interlopers, but might be encouraged to do so by reason of a direct financial interest, it would appear to be logical to encourage them by an immunity from liability under the limited circumstances set forth in this amendment to the Workmens Compensation Act. In any case, the plaintiff does not argue to us any way in which this classification is unreasonable except, as we have previously pointed out, because of the sole reason that they are insurers.

Next, the insurer, who may conduct litigation as a party in its own name under the Workmens Compensation Act, is intimately connected with the relationship of employer and employee, and as a result of that connection is directly involved financially. As the indemnitor of the employer, the insurer is as close to the employer as possible. Further, the insurer has subrogation rights under the Workmen’s Compensation Act and succeeds to rights of the employer and, in part, of the employee. Ill. Rev. Stat., ch. 48, sec. 138.5; Reno v. Maryland Cas. Co., 27 Ill.2d 245, 188 N.E.2d 657.

Another basic principle governing constitutional attacks upon the validity of a statute is the requirement that the constitutional charge be set forth specifically and not on a generalized basis. Thus, in the People v. Witt, 394 Ill. 405, 68 N.E.2d 731, cert. den., 329 U.S. 797, 67 S.Ct. 482, 91 L.Ed. 682, our Supreme Court held “A general allegation of lack of due process, without specifying in what particular mode it was lacking, gives us no grounds to uphold such a contention.” And Justice Shaefer, speaking for the court in Jewel Tea Company v. Rowe, 414 Ill. 495, 111 N.E.2d 568, said, “We have repeatedly held that a generalized charge of unconstitutionality, which is the most that a liberal construction can read into the complaint in this case, is insufficient to raise a constitutional question.”

For the above reasons, the action of the trial court in denying plaintiff’s motion to strike and dismissing plaintiff’s complaint against the Travelers Indemnity Company must be affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Bain, Defendant-Appellant.
    (No. 72-51;
    Fifth District
    March 8, 1973.
    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    No appearance for the People.
   PER CURIAM:

This is an appeal from the judgment of the circuit court of St. Clair County dismissing a post-conviction petition without the evidentiary hearing, which had been mandated by the Supreme Court of Illinois.

Although numerous extensions have been granted appellee for the filing of its brief, none has been timely filed. The cause would be a proper one for a summary reversal, however, we elect to dispose of the matter on the merits.

Defendant entered a plea of guilty to a charge of burglary and was sentenced to a term of one to ten years in the penitentiary. Subsequently, defendant filed a post-conviction petition, but the circuit court sustained the People’s motion to dismiss the petition, on July 10, 1969. On appeal to the Illinois Supreme Court, the Attorney General of tire State of Illinois confessed error in the post-conviction proceedings. The Illinois Supreme Court reversed and remanded the judgment of the Circuit Court of St. Clair County and ordered that an evidentiary hearing be conducted by the circuit court.

The circuit court appointed counsel pursuant to the mandate, and a petition identical to the one previously filed was filed with a brief, an expanded petition and affidavits and exhibits on May 5, 1971 while defendant was still incarcerated in the penitentiary.

On July 16, 1971, the court ordered the People to file an answer and set an evidentiary hearing for July 29, 1971. On July 20, 1971, the People filed an answer moving to dismiss the post-conviction petition on the grounds that it failed to state a cause of action under the Post-Conviction Hearing Act. The cause was called for hearing on July 29, and the People moved for a continuance which was granted and the cause continued until September 10, 1971. After lengthy delay sought by the State on January 14, 1972, the cause was called for hearing, at which time the State moved to dismiss, advising the court that petitioner had been paroled. The court dismissed the petition, from which order of dismissal this appeal has been perfected.

Any questions arising from the hearing held on July 10, 1969, in the circuit court have been rendered moot by the Supreme Court’s reversal of the circuit court’s judgment. When a judgment is reversed by a reviewing court, the reviewing court’s judgment of reversal is final upon all questions decided; those questions are no longer open to consideration. Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 226 N.E.2d 624.

The trial court’s dismissal of the petition on January 14, 1972 was in direct opposition to the specific mandate to hold an evidentiary hearing. A court to which a cause is remanded can only take such action as conforms to the judgment of the reviewing court. (Town of Kaneville v. Meredith, 361 Ill. 556, 198 N.E. 857.) In Thomas v. Durchslag, 410 Ill. 363, 102 N.E.2d 114, the Supreme Court stated:

“Where, as here, the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed. People ex rel. Barrett v. Bardens, 394 Ill. 511; People ex rel. McLaren v. DeBoice, 377 Ill. 634; Wilson v. Fisher, 369 Ill. 538; People ex rel. Callahan v. DeYoung, 298 Ill. 380; Fisher v. Burks, 285 Ill. 290.”

Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1 states that a person imprisoned in the penitentiary who asserts that there was a substantial denial of his constitutional rights in the proceedings which resulted in his conviction may institute a post-conviction proceeding. It is not necessary, however, that the petitioner be incarcerated in the penitentiary at the time his petition is heard under the Post-Conviction Hearing Act.

This issue was settled by the Illinois Supreme Court in People v. Davis (1968), 39 Ill.2d 325, 235 N.E.2d 634, where the State argued that Davis’ post-conviction petition should be dismissed because he had not been in prison at the time his cause was heard. The Court, however, held:

“As there are obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction, we see no reason to so narrowly construe this remedial statute as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends.” People v. Davis, 235 N.E.2d at 636.

In another case later in the same year, the Court cited People v. Davis and added: “That a petitioner under the Post-Conviction Hearing Act may have completed service of his sentence and may be no longer incarcerated pursuant to that conviction will not render remandment unnecessary.” People v. Neber, 41 Ill.2d 126, 128, 242 N.E.2d 179, 180.

Thus, the fact that defendant in this case was not incarcerated on January 14, 1972, should have had no bearing on his right to an evidentiary hearing as ordered by the Illinois Supreme Court. Defendant was in the penitentiary on March 6, 1969, when he first filed his post-conviction petition. Defendant was still in the penitentiary July 29, 1971, when the petition was called for a hearing. The statute speaks of a person being incarcerated at the time he institutes a post-conviction proceeding.

We therefore reverse the order of the circuit court of St. Clair County, and remand this cause for an evidentiary hearing to be held before some judge other than the judge who entered the order of the dismissal.

Reversed and remanded with directions.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Jennetta Ruth Larocco, Plaintiff-Appellant, v. Frank J. Larocco, Defendant-Appellee.
    (No. 72-238;
    Fifth District
    March 8, 1973.
    Carl D. Sneed, of Herrin, for appellant.
    Paul T. Austin, of Marion, for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff appeals from a decree of the Circuit Court of Williamson County granting defendant a divorce on his counterclaim and ordering the plaintiff to convey her joint tenancy interest in the marital home of the parties to the defendant.

The plaintiff brought an action against her husband, the defendant, for divorce on the grounds of extreme and repeated mental cruelty. The defendant filed a counterclaim for divorce on the same grounds. The decree found that the plaintiff, rather than the defendant, had been guilty of extreme and repeated mental cruelty and directed her to convey to defendant her joint tenancy interest in the marital home to defendant.

The plaintiff contends that the above finding is contrary to the manifest weight of the evidence and that the court erred in directing her to quitclaim her interest in a jointly owned marital home to the defendant.

The evidence consists solely of the testimony of the plaintiff, the defendant, and the plaintiff’s daughter. The plaintiff testified that the defendant was extremely jealous, domineering, and moody; that he did not want her to work, but seldom gave her any money; that the defendant had struck her on one occasion; that she had left him a number of times because he was impossible to five with; and that he told her son, by a previous marriage, that he could no longer live with them.

The plaintiff’s seventeen-year-old daughter testified that she had seen the defendant strike her mother; that the defendant was very moody and would not talk to her or tire plaintiff for long periods of time; that the defendant would not permit her mother and herself to be alone together to talk; and that the defendant’s domineering attitude had made her mother very nervous.

The defendant testified that the plaintiff left him three times; that she frequently invited guests to the house without telling him; that the plaintiff was hot-tempered and had, on one occasion, thrown a knife at him; that she had slapped him as hard as she could with her open hand; and that after the defendant had returned from the hospital, the plaintiff stated that if the defendant had to return to the hospital, she would not go with him or drive him there.

From the foregoing, we are unable to say that the judgment of the trial court finding that the defendant was entitled to a divorce on his counterclaim is against the manifest weight of the evidence.

However, presumably pursuant to Section 17 of the Divorce Act (Ill. Rev. Stat., ch. 40, par. 18), the trial court ordered die plaintiff to quitclaim her joint interest in the marital domicile to the defendant. AI-though there is no specific finding, we presume that the trial court found that the property “equitably belonged” to the defendant as the home had been purchased entirely with his funds.

The parties were married late in life and each had been married previously. Their marriage lasted seven years before the commencement of this action. At the time they were married, the defendant owned a home in Summit, Illinois. This home was subsequently sold and the proceeds can be traced, through another home, to the present marital home at Pharoah’s Gardens Subdivision, Lake of Egypt. Title to these last two properties was placed in the name of both plaintiff and defendant as joint tenants at the direction of the defendant. The defendant stated that the plaintiff never asked him to put her name on either of the deeds, and that he had insisted on it himself.

It is undisputed that both the parties physically worked together to finish the present property, since it was only partially completed when they purchased it. They laid a tile floor, put up paneling, and insulated the upstairs. Plaintiff painted the outside. They put up guttering, installed a well and filtering system, and put in a bathroom.

In Baker v. Baker, 412 Ill. 511, our Supreme Court said at 514-515:

“* * * Property voluntarily conveyed by a husband to his wife, without fraud or coercion is presumed to be a gift, notwithstanding the fact the husband purchased the property with his own money, and the wife may hold the property against him. [Cases cited.] This presumption of fact is not conclusive but may be rebutted by proof. It can only be overcome by clear, convincing, and unmistakable evidence that no gift was intended.”

See also Peck v. Peck, 16 Ill.2d 268; Rodely v. Rodely, 28 Ill.2d 347; and Kratzer v. Kratzer, 130 Ill.App.2d 762.

There is no evidence whatsoever that a gift was not intended when the title to the property in question was placed in the names of plaintiff and defendant as joint tenants. The trial court therefore erred when it directed the plaintiff to quitclaim her interest in the marital home to the defendant.

For the foregoing reasons, that portion of the decree finding that the defendant is entitled to a divorce from the plaintiff is affirmed, and that portion of the decree directing plaintiff to quitclaim her interest in the real estate jointly owned by the parties and located at Pharoah’s Gardens Subdivision, Lake of Egypt, Williamson County, Illinois, is reversed. This case is remanded to the Circuit Court of Williamson County for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

EBERSPACHER, P. J., and CREBS, J., concur.


text:
    Rosemarie Berner, Plaintiff and Counterdefendant-Appellant, v. Jerome P. Berner, Defendant and Counterplaintiff-Appellee.
    (No. 73-1;
    Fifth District
    March 8, 1973.
    Lou Ann Dorothy, of Mt. Vernon, and John C. Reznick, of Vandalia, both for appellant.
    David Campbell, of Craig & Craig, of Mt. Vernon, for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Counterdefendant appeals from a judgment of the Circuit Court of Jefferson County granting counterplaintiff a divorce, fixing the custody of the minor children of the parties, and directing a disposition of the marital assets.

We find that no error of law appears, that an opinion in this case would have no precedential value and that the judgment of the trial court was not against the manifest weight of the evidence.

We therefore affirm the judgment of the trial court in compliance with 50 Ill.2d R. 23.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE STOUDER

text:
    Central Illinois Light Company et al., Plaintiffs-Appellees, v. Commerce Commission, Defendant-Appellant—(Alton and Southern Railroad et al., Defendants-Appellants.)
    (No. 72-110;
    Third District
    March 12, 1973.

      William J. Scott, Attorney General, of Chicago, and Westervelt, Johnson, Nicoll & Keller, of Peoria, (John H. Doeringer, of counsel,) for appellants.
    C. V. O’Hern, of Peoria, for appellees.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Alton and Southern Railroad, together with forty five other railroads (hereinafter railroads) filed a petition with the Illinois Commerce Commission on August 26, 1968, requesting that the Commission permit an increase in Illinois intrastate rates. The Commission granted the petition and rehearing and reconsideration was requested by four electrical utilities, Central Illinois Light Co., Central Illinois Service Co., Illinois Power Co. and Electrical Energy Inc., hereinafter referred to as the intervenors. After the petitions of the intervenors for rehearing were finally denied by the Commission on September 17, 1969, the intervenors commenced this action in the Circuit Court of Peoria County seeking review of the Commission’s order. The railroads moved for dismissal of the action claiming the time for seeking judicial review had expired and the motion to dismiss the action was granted by the Circuit Court of Peoria County. On review to the Illinois Supreme Court at the instigation of the intervenors, the judgment of the Circuit Court of Peoria County was reversed in Central Ill. Light Co. v. Commerce Com., 47 Ill.2d 257, 265 N.E.2d 154, and remanded to the Circuit Court for further proceedings. Such further proceedings were held resulting in a judgment of the Circuit Court that the order of the Commission was invalid and the cause was remanded to the Commission for further proceedings. The judgment of the court holding the Commission’s order invalid has been appealed to this court by the railroads and the Commission.

On June 24, 1968, at the request of the nation’s railroads the Interstate Commerce Commission granted a general interim 3% rate increase in interstate freight rates. Requests for additional increases were postponed for further consideration but were later granted in January, 1969.

In August, 1968, forty six railroads doing an intrastate freight business in Illinois petitioned the Illinois Commerce Commission seeking approval of their tariff schedule 259A which represented increases in intrastate freight rates similar to those approved for interstate freight rates by the Interstate Commerce Commission in June, 1968. Tariff schedule 259A was approved finally on September 17, 1969 and is the only order subject to this appeal. Later, the railroads in a subsequent proceeding, sought approval of then tariff schedule 259B representing increases similar to those allowed in the final order of the Interstate Commerce Commission in January, 1969. The order of the Illinois Commerce Commission approving tariff schedule 259B is the subject of another appeal pending in this court in case number 72-111 and although involving similar questions it will be dealt with separately.

The first assignment of error urged by appellants is that the intervenors had no standing to seek review of the Commission’s order since such order is not reviewable as such. According to the appellants, parties dissatisfied with a general rate order are required to institute administrative proceedings questioning the reasonableness of a particular rate or category of rates. In support of this contention appellants cite the construction of Federal statutes containing similar provisions as applied in Atlantic City Electric Co. v. United States (1969), 306 F.Supp. 338, (because of an equal division of the Court this case was affirmed without opinion in Atlantic City Electric Co. v. United States (1970), 91 S.Ct. 259, and (1971), 91 S.Ct. 579.)

We believe the intervenors do have standing to seek judicial review of the Commission order for several reasons. First and foremost we believe the prior Supreme Court case (Ill. Central Light Co. v. Commerce Com., 47 Ill.2d 257, 265 N.E.2d 154) is res judicata on this issue. The absence of any standing on the part of the intervenors to maintain the legal action could and should have been urged as an additional reason supporting the action of the trial court in dismissing the complaint for judicial review. The failure of the appellants to raise such issue before the Supreme Court at a time when the resolution of such issue was appropriate now precludes them for questioning the right of the intervenors to maintain the action.

Additionally we believe the language of section 72 (Ill. Rev. Stat. 1969, ch. 111⅔, par. 72) authorizes the judicial review sought by the intervenors. In so far as is pertinent said section provides, “Within 30 days after the service of any order or decision of the Commission * * * any person or corporation affected by such rule, regulation, order or decision may appeal to the circuit court * * The statute authorizing judicial review makes no distinction between the types of action of the Commission which may be reviewed. This issue does not appear to have been raised in any prior Illinois case apparently because the language of tire statute is so broad that problems were not thought to exist. In Village of Apple River v. Commerce Com., 18 Ill.2d 518, 165 N.E.2d 329, for example, numerous municipalities sought review of a Commission order increasing telephone rates even though such municipalities made no claim concerning the unreasonableness of a particular rate or rate category.

The railroads and Commission on this appeal argue the order included sufficient findings to justify the result and the trial court erred in holding to the contrary. In seeking to have the order of the Commission set aside, the intervenors made two basic but related contentions. First, the order of the Commission did not make sufficiently specific findings of fact and second, the Commission failed to determine and reflect in its order necessary factors relating to the propriety of Illinois intrastate freight rates i.e. rate base of assets used in connection with intrastate freight, the income and expenses attributable to intrastate freight transportation and finally the rate of return attributable to assets devoted to intrastate freight transportation.

The principle regarding review of orders of the Illinois Commerce Commission are well settled. It is sufficient to say that the order of the Commission should be deemed prima facie true and correct, the legislative expertise of the Commission should be given substantial deference and finally the order of the Commission should be approved unless unsupported by evidence or contrary to some rule of law. Illinois Bell Telephone Co. v. Commerce Com., 414 Ill. 275, 111 N.E.2d 329.

The increased intrastate freight rates were sought by or on behalf of forty six railroads. Financial data and exhibits relating to the operations of fifteen of the railroads were presented before the Commission, a major portion of such evidence being presented by Halpin, a cost witness employed by the Western Railroad Traffic Association. The evidence relating to this group of fifteen railroads concerned systemwide operations without segregation of interstate operations from intrastate operations. This group of railroads represented 90 percent of the total mileage operated in the State of Illinois by all Class 1 and Class 2 line haul carriers.

Evidence was given concerning data, including index numbers relative to the revenue, expenses, net income and ton-miles of freight handled for fifteen of the railroads herein for the first half of the years 1966, 1967 and 1968. As found by the order of the Commission, “The net railway operating income for these selected railroads fell from $226,289,055 in the first half of 1966 to $119,194,098 in the first half of 1968. Based on the index of 100 for the 1966 figure, the index for 1968 is 52.67.” The decreases in net operating income were analyzed in terms of their relationship to increased labor costs, increased payroll taxes, increased cost of material and increased local taxation. Of the foregoing factors except for local taxation, the other increased costs were applicable to the operation of the railroads generally and had no particular application to either interstate or intrastate operations. Three major railroads (included in the group of fifteen discussed before) presented evidence describing their rates of return in 1967 on allocated portions of their Illinois properties. The method of allocating the carriers’ Illinois investments and expenses was to use a revenue apportionment as between state and interstate traffic revenue.

The basic contention of the interveners is that there is neither finding of fact nor evidence of the value of assets used or useable in intrastate freight transportation by the three railroads which made any effort to reflect Illinois intrastate operations in their financial statistics. Furthermore, according to the intervenors, even if there was evidence of the Illinois rate base respecting such three railroads there was no such evidence regarding the other twelve railroads which furnished data only on systemwide operations or for the other thirty one railroads which presented no financial information.

Referring to the exhibits of the railroads four, five and fifteen, which were respectively the financial data of Chicago & Eastern Illinois, Chicago, Burlington & Quincy and Illinois Central Railroads, incorporated by reference in the order of the Commission, the order of the Commission observes;

“The Illinois rates of return of these railroads as shown by the aforesaid exhibits were, in 1967, respectively: less than 0, .26% and 2.66%. These aforesaid exhibits are properly admitted into this case and may be considered along with other indicative items to assist this Commission in determining if there is a need on the part of the railroads for additional revenue from intrastate traffic to enable them to realize a fair return on such traffic.
The evidence shows that the systemwide rate of return of the Illinois Central was 2.56% before the application of Ex Parte 259 increases (referring to increases approved by Interstate Commerce Commission applicable only to interstate freight rates) and is expected to be 3.81 after such increases. This would indicate, at least for the Illinois Central Railroad:
1. That its interstate and intrastate rates of return were substantially identical before application of the Ex Parte 259 increase.
2. That its Illinois intrastate rate of return (2.66%) is substantially less than its systemwide rate of return (3.81) after such increase.
3. That since the interstate and intrastate rates of return were within .1 of 1% of each other before the interstate increase, if the same increase authorized in interstate commerce is now authorized in intrastate rate of return would logically not be much different from the 3.81% interstate rate of return.”

Concededly the foregoing recital in the order of the Commission was based in large measure on the financial data supplied in the three exhibits by the three railroads together with accompanying testimony explaining the financial data. However the intervenors insist that the method or formula utilized in such computations is unsound and so improper that any findings based thereon are legally insufficient.

The formula employed by each of the three railroads was substantially the same. The exhibits and supporting testimony respecting each railroad was presented by different cost accountants employed by the respective railroads. W. J. Hardlannet, Manager of Cost & Economic Analysis of the Illinois Central Railroad, testified extensively on several occasions concerning the financial data of the Illinois Central including the methods of computation used. In the brief of the intervenors his method of computation is referred to as the “Hardlannert formula” and his explanation of the formula is clear even though for reasons hereinafter noted intervenors deny that such a formula has any probative value.

Taking the Illinois Central financial data as an example, there is a computation of the railroad’s total revenue separated by states. The total revenue of the railroad from Illinois business is shown as well as the division of such total revenue between intrastate and interstate business. In its accounting procedures, revenues from Illinois interstate business constituted 24.17 percent of the total Illinois business. This ratio was then applied to Illinois expenses and Illinois assets in order to determine net income from Illinois intrastate business and the value of Illinois intrastate assets.

As may be concluded from the method of computation both expenses and value of assets are allocated in accord with and dependent upon the revenue attributable to Illinois intrastate business. As is pointed out by the intervenors if revenues from Illinois intrastate business are increased then expenses and the value of assets are also increased thereby distorting both the net income computation, rate base and return. Limitations of such a method of computation were admitted by Hardlannert but he nevertheless believed the method of allocation produced results of substantial probative value. As was pointed out by the witness, increases in interstate revenue also produced increases in interstate expenses and rate base when the formula was applied thus tending to neutralize distortion.

It is not necessary to either approve or disapprove the Hardlannert formula as it may be applied in every case. We believe with respect to the issues before the Commission the computations tended to have probative value in determining the Illinois net income from intrastate business and the rate base related thereto. Such evidence is sufficient to support the findings of the Commission and the result based thereon.

The degree of accuracy required in the methods of accounting used depend in large measure on the degree of specificity of the conclusions they purport to support. So far as the general increase in freight rates is concerned in the instant case it does not appear that there is any claim or determination that the increased rates sought by approval of schedule 259A were sufficiently large as to provide the railroads with a reasonable rate of return. Although the railroads were seeking to increase revenues and improve their financial condition the only result of the increase was to reduce but not eliminate the previous unreasonableness of the rate of return. Where the issue arises as to whether particular rates of return either present or prospective are critical issues it well might be that the method of allocation employed in this case might be considered insufficiently precise to justify a particular result. Most cost accounting involves unique methods, some arbitrary assumptions, and produce results subject to varying degree of error. Even though in the instant case both the railroads and the intervenors are subject to state regulation and the application of the Utilities Act it would appear that there are some aspects of accounting practice which are peculiar to each. As observed in Iowa-Illinois Gas & Elec. Co. v. Commerce Com., 19 Ill.2d 436, 167 N.E.2d 414, "The power to make rates, of necessity, requires the use of pragmatic adjustments which may be called for by the particular circumstances.” In the foregoing case the Court mentions different methods which might be utilized in allocating revenue, expenses and assets with respect to electrical generating and transmission facilities in different states although part of the same system. The method of allocation was not an issue in the case since the principal objection to the Commissions order was that of the electric utility claiming inadequate consideration of reproduction costs of the facilities.

This brings us to the next major contention of the intervenors namely that even if the evidence might tend to support the order granting increased rates to the three railroads presenting detailed evidence on intrastate operations, such evidence is insufficient to justify approval of the tariffs applicable to the freight rates of the other rail carriers. It does not appear that this question has been previously considered by the courts of our state even though we believe there have been previous general rate increases applicable to all intrastate rail carriers in the absence of financial information concerning the operations of each carrier affected.

The Commission found, “Exhibit 3 indicates that the Illinois Central was in a comparatively good financial position in 1968, the Chicago and Eastern Illinois in a deficit situation and the Chicago, Burlington & Quincy somewhere between the other two. The aforesaid 3 railroads may be deemed fairly representative of all Illinois railroads.” Intervenors expressed doubts that the three railroads may be considered representative but their major argument is that the propriety of rate increases for the three railroads or for the group of fifteen railroads can not be extended to support a result applicable to all forty six railroads.

While the resolution of this issue may not be free of doubt it is our conclusion that the principle of representativeness or similarity may be applied to support the broader aspect of the Commissions order. This conclusion is based in large measure on the nature of the issue involved, the variety of factors and interdependent relationships which must be considered in railroad rate cases and the lack of any substantial benefit either to the public or to customers of the railroad in requiring further refinement of the evidence.

It requires only a cursory consideration of the problems involved in railroad rate determination to conclude that the general rule which requires that a public utility such as a railroad receive or is entitled to receive a reasonable return on its investment can not be applied to railroads in the same manner it is applied to other utilities. Railroads are not only in competition with one another but also with many other forms of transportation which during the last forty years have completely changed the position of the railroads. (King v. United States (1952), 344 U.S. 254, 97 L.Ed. 301, 73 S.Ct. 259). The general principle of monopoly pricing which railroad regulatory bodies were initially established to restrain has lost much of its effect and no longer do increases in rates automatically result in a proportionate increase in revenues. For example if the C&EI which is operating at a deficit, were alone to increase its freight rates there is no assurance that either in the short run or the long run that such an increase would result in increased revenue. Alternative methods of transportation are available to some extent either by using other railroads or other modes of transportation. Thus the situation of most railroads is interrelated and what affects the rates and revenues of one or some of the railroads directly affects the conditions of others.

Any increase in rates for service is usually sought and approved because it tends to increase the revenues of the utility and if appropriate a need therefore must be shown measured in terms of reasonable return. Even though an order of the Commission authorizes a general rate increase it is still subject to the requirement of the reasonableness in relation to the adequacy or excessiveness of return. Consequently we do not believe a Commission order is improper merely because it may produce a general increase in revenue. The total revenue must still comply with the requirement of reasonableness under the generally applicable rules. We believe the evidence tends to show that the general increase on freight rates will not produce revenues in excess of reasonable rates of return and consequently the order of the Commission is not improper. In this connection it should be noted that the order of the Commission specifically disclaims that its order determines the reasonableness of any particular rate or rate category.

It is our conclusion that there are sufficient findings in the order of the Commission to support the result reached by the Commission and that such findings are supported by sufficient evidence. Accordingly we believe the Circuit Corut of Peoria County erred in vacating the order of the Commission and the judgment of such court is reversed and the order of the Illinois Commerce Commission is confirmed.

Judgment reversed.

DIXON and SCOTT, JJ., concur.


text:
    Central Illinois Light Company et al., Plaintiffs-Appellees, v. Commerce Commission, Defendant-Appellant—(Alton and Southern Railroad et al., Defendants-Appellants.)
    (No. 72-111;
    Third District
    March 15, 1973.
    William J. Scott, Attorney General, of Chicago, and Westervelt Johnson, Nicoll & Keller, of Peoria, (John Doeringer, of counsel,) for appellants.
    C. V. O’Hern, of O’Hern, O’Hern & Wombacher, of Peoria, for appellees.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The Alton and Southern Railroad together with forty four other railroads (hereinafter referred to as railroads) sought approval of tariff schedule 259B by the Illinois Commerce Commission, the schedule representing a general increase in Illinois intrastate freight rates. Tariff schedule 259B superseded 259A the general increase in rates of from 3 to 7 percent included those previously authorized by the Commission in its approval of 259A on September 17, 1969. The objectors to the approval of 259B, four electric utility companies, (Central Illinois Light Co., Central Illinois Service Co., Illinois Power Co. and Electrical Energy Inc.) hereinafter referred to as intervenors, sought judicial review of the Commission’s order approving tariff schedule 259B. The Circuit Court of Peoria County vacated the order of the Commission and remanded the cause for further proceedings. The railroads and Commission have appealed such judgment.

This is a companion case to another case involving the same parties (Central Illinois Light Co. v. Commerce Com., ante, p. 370, in which we reviewed and reversed the judgment of the Circuit Court of Peoria County regarding the order of the Commission approving tariff schedule 259A. In the earlier case as in the instant case the trial court vacated tire order of the Commission and it was our holding in reversing the judgment of the trial court that the order of the Commission was proper.

In June, 1968, the Interstate Commerce Commission approved an interim general increase in interstate freight rates. The approval of a similar rate increase was sought with respect to intrastate rates in Illinois as represented by tariff schedule 259A reviewed in the earlier case previously referred to.

The Interstate Commerce Commission in January, 1969, granted approval of a permanent and increased general freight rate respecting interstate freight rates and approval of similar rates applicable to intrastate rates was sought by the railroads in its petition for approval of tariff schedule 259B. This latter schedule was approved by the Illinois Commerce Commission in June of 1970. The judgment of the Circuit Court of Peoria County vacating such order is the subject of this appeal.

This appeal raises substantially the same legal issues as were presented and reviewed in our earlier opinion. (Central Ill. Light Co. v. Commerce Com., ante, p. 370.) Again the controversy between the parties involves the probative value of the testimony of expert witnesses and exhibits, the sufficiency of such evidence to support the findings of the Commission and finally the sufficiency of the findings to support the result reached by the Commission in approving the general intrastate freight rate increases.

Although the testimony presented by the railroads and the intervenors was more extensive and in greater detail, the nature of the evidence presented by the railroads was similar to that presented in the former case. Financial data concerning systemwide operations of fourteen railroads doing most of Illinois’ intrastate freight business was presented for the full years 1966, 1967 and 1968. This group of fourteen railroads is the same group referred to as fifteen railroads in the former case a merger having occurred between two of the railroads included in the group. In addition to analyzing such data in terms of changes in gross revenue, expenses and net revenue there were also comparisons of these factors in terms of ton miles. There was evidence of the financial operations of four of the group of fourteen railroads which showed a summary of freight revenue derived from Illinois business divided between interstate and intrastate operations. Expenses and Illinois rate base were allocated in proportion to revenues and projections were made based on the estimated effect of the increased revenues sought.

In addition to presenting testimony concerning freight rates for coal and the profile of the coal transportation business as viewed by costs witnesses employed by the intervenors, the interveners also presented the testimony of Gerald W. Fauth, Jr., an independent transportation cost consultant. Fauth, in his capacity as expert, criticized the method of accounting, allocation and interpretation of the witnesses testifying in behalf of the railroads and offered interpretations and opinions of his own including some figures extrapolated from findings of the Interstate Commerce Commission. His testimony is however not substantially inconsistent with the testimony offered by the railroads or with the findings of the Commission.

Without detailing either the evidence or the findings of the Commission we believe it is sufficient to say that the effect of the increases approved will only reduce the unreasonableness of the existing low rate of return and further that there was no expectation or intention that the increased freight rates will produce net rates of return approaching the cost of borrowed money. Accordingly what we have said in our earlier decision in Case Number 72-110 is equally applicable to the issues presented on this appeal and requires resolution of the issues in favor of the Commissions order.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is reversed and the order of the Illinois Commerce Commission is confirmed.

Judgment reversed.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Attwood, Defendant-Appellant.
    (No. 72-104;
    Third District
    March 12, 1973.

      James Geis, of Defender Project, of Ottawa, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, William Attwood, pleaded guilty to the charge of misdemeanor theft in the Circuit Court of Rock Island County and received a sentence of one year in the state penal farm.

On this appeal defendant argues that prior to the acceptance of his guilty plea the court failed to comply with Supreme Court Rule 402. (Ill. Rev. Stat. 1971, ch. 110A, sec. 402.) Several aspects of Rule 402 have been argued on this appeal but we believe it necessary to discuss only those sections of the rule relating to admonishment of the defendant as to the possible penalty and whether the plea was voluntary.

Defendant was initially charged with felony theft and counsel was appointed to represent him. On the 17th day of November, 1971, as a preliminary matter, a hearing was held regarding the value of the property stolen and the owner of the property testified that the value of such property was $150. Since the value of the property was not in excess of $150 the offense was a misdemeanor rather than a felony. On the following day the charge was reduced to misdemeanor theft and the defendant and his counsel represented to the court that a plea had been bargained for which provided for one year sentence to the state penal farm, for the dropping of another felony charge and for the continuance of defendant’s probation on another charge. The terms of the plea bargain were concurred in by the trial court and there is no dispute but. that the plea bargain was carried out in accord with its terms.

After the fact of a plea bargain had been revealed to the trial court and before acceptance of defendant’s plea the trial court made some efforts to comply with Supreme Court Rule 402. However it appears from the record that the trial court made no inquiry to determine whether defendant’s plea was voluntary as required by Supreme Court Rule 402 (b) or that he advised the defendant of the possible penalty for the offense of misdemeanor theft.

As the court indicated in People v. Garcia, 8 Ill.App.3d 542, Rule 402 (b) contemplates not merely ascertaining whether the defendant agreed with the terms of the plea bargain but also requires the court to ascertain that the plea is not the result of other improper conduct. We believe the observations in the Garcia case are equally applicable to the facts of this case.

As indicated earlier the trial court did not make any reference to the potential penalties which could be imposed and the only reference to any penalty so far as the record is concerned is the statement by defendant’s attorney, “Your Honor, I might further advise that I told Mr. Attwood that the least penalty that can be imposed for misdemeanor theft is a year in an institution other than the penitentiary and $500.00 fine, or both, is that correct, Mr. Attwood?” Not only does the record fail to indicate that the trial judge advised the defendant of the penalty but to the extent that a penalty is referred to at all it is erroneously described. The failure to admonish the defendant regarding penalties is such that we can not determine whether defendant’s plea bargain was affected thereby.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is reversed and the cause is remanded to such court with directions that defendant be permitted to plead anew.

Judgment reversed and remanded.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
      In re Interest of Timmy Carson, a Minor, Appellant.
    (No. 72-25;
    Third District
    March 13, 1973.
    James Geis, of Defender Project, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb, (James Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the circuit court of McDonough County adjudicating Timmy Carson, age 10, a delinquent, following a hearing on a petition which alleged the theft of money in the amount of $150 by Timmy Carson. By the terms of the order, Timmy Carson was placed in the custody of the Department of Children and Family Services. The sole issue presented for determination arises from a contention asserted by appellant that under existing statutes, a minor under the age of 13 years may not be adjudicated a delinquent.

Under section 2 — 2 of the Juvenile Court Act (which superseded the Family Court Act) it is provided, in part, that a delinquent boy is “* * * one who prior to his 17th birthday has violated or attempted to violate * * # any federal or state law or municipal ordinance.” (Ill. Rev. Stat. 1971, ch. 37, sec. 702 — 2.) It is also pointed out that under section 6 — 1 of the Criminal Code of 1961 it is provided that “no person shall be convicted of any offense unless he had attained his 13th birthday at the time the offense was committed.” (Ill. Rev. Stat. 1971, ch. 38, sec. 6 — 1.) It is likewise noted that the Committee Comments indicated that one of the purposes of the Act was to raise the minimum age of criminal capacity and its effect was to establish that “criminal capacity shall not be deemed to exist below the age of thirteen.” (Smith-Hurd Ill. Annot. Statutes, ch. 38, § 6 — 1, Committee Comments, pp. 322-323.) On the basis of the Committee Comments, appellant argues theoretically that the two statutory provisions must be read together. Appellant reasons that since a child under the age of 13 years lacks criminal capacity, he, therefore, cannot “violate” or “attempt to violate” a law as set forth in section 2 — 2 of the Juvenile Court Act and as a consequence cannot be adjudged a delinquent. On the basis of this theory it is contended by appellant that only minors between the ages of 13 and 17 can be adjudged delinquent. We do not agree with the contention of respondent or with the necessary corollary to such contention that the Juvenile Court Act has no application to juveniles under the age of 13. It is obvious that this would produce an absurd result and one which is completely dispelled when the precise language of section 6 — 1 is read and when the Juvenile Court Act and Committee Comments relied upon are read completely. Ill. Rev. Stat. 1971, ch. 37, secs. 701 — 1 through 708 — 4.

It is apparent that delinquency proceedings have a protective and rehabilitative, rather than a penal, purpose, and are based on the concept that minors below the age of 17 do not in all instances possess the same capacity to appreciate the consequences of their actions as do adults. To achieve this objective, the Juvenile Court Act, and proceedings thereunder, are designed to provide an alternative to criminal prosecution and the severe penalties ensuing when the acts amounting to the alleged delinquent conduct would amount to a crime if charged as against an adult. (In re Urbasek, 38 Ill.2d 535, 537.) In addition to the logical and reasonable understanding to be derived from the provisions of the Act, the legislature, by provisions of section 2 — 2, 2 — 7(3) and 2— 7(5), has made it clear that minors under age 13 are embraced by and subject to the Juvenile Court Act, and it is also clear that section 6 — 1 of the Criminal Code was not intended to provide otherwise.

In the Committee Comments upon which appellant relies, the Committee first discusses the statutory provisions which were being superseded by section 6 — 1, and the construction which had been placed upon those provisions. The comments then continue with the following language:

“In approaching the redraft of these provisions the Committee sought to accomplish two purposes: first, the raising of the minimum age of criminal capacity; second, the elimination of the presumption of incapacity thereby withholding from the jury an unsatisfactory and uncongenial task. The solution arrived at is the simple proposition providing that criminal capacity shall not be deemed to exist below the age of thirteen. Persons falling in this category and committing acts which would otherwise be criminal thus fall within the exclusive cognizance of the Family Court (now Juvenile Court) to be treated according to the provisions of the Family Court Act (now Juvenile Court Act).” Smith-Hurd Annot. Stat, ch. 38, §6 — 1, pp. 322-323. (Emphasis added.)

The final sentence of the Comments quoted above, it is noted, is consistent with sections 2 — 7(3) and 2 — 7(5) of the Juvenile Court Act, which provide, in effect, that a minor under the age of 13 may never be subjected to criminal prosecution, but must be treated exclusively under the Juvenile Court Act.

In the full context of the Committee Comments and the express language of section 6 — 1, which provides that no person under age 13 shall be “convicted” of any offense, we believe that the legislative intention is clearly manifest that it was the objective of that section to prevent the conviction of children under the age of 13 years. It was not intended thereby to remove such children from the application and remedial benefits of the Juvenile Court Act. On the contrary, it is children of tender ages who need and would benefit most from the guidance and supervision contemplated by the Juvenile Court Act.

The courts have observed that a general rule of statutory construction indicates that the spirit and dominating purpose of an enactment prevails over the letter thereof in ascertaining and giving effect to the intention of the legislature. (People ex rel. Barrett v. Thillens, 400 Ill. 224; People v. Gibbs, 413 Ill. 154.) This rule, we believe has specific application to the issue before us. In view of the legislative intent consistently manifested by sections 2 — 7(3) and 2 — 7(5) of the Juvenile Court Act and by section 6 — 1 of the Criminal Code, to the effect that conduct of children under age 13 is to be dealt with exclusively under the Juvenile Court Act, it necessarily follows that section 2 — 2 must be read in light of that intent and in conformity with the dominating purpose of both Acts insofar as children under the age of 13 are concerned. It is, therefore, clear that it does not matter that a boy under such age lacked capacity to “violate” or “attempt to violate” a law or ordinance as set forth in section 2 — 2. It is sufficient if his conduct would have amounted to a crime or attempted crime so as to subject him to conviction had he possessed criminal capacity. Any other construction would not be in the best interest of the juvenile himself.

The judgment of the circuit court of McDonough County adjudicating appellant as a delinquent is accordingly affirmed.

Judgment affirmed.

STOUDER and DIXON, JJ., concur.


text:
      In re Interest of Danny Carson, a Minor, Appellant.
    (No. 72-26;
    Third District
    March 15, 1973.

      Steve Hurley, of Defender Project, of Ottawa, for appellant.
    Henry Sintzenich, State’s Attorney, of Macomb, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Appellant, Danny Carson, 14 years of age, was adjudicated a delinquent following a hearing in the circuit court of McDonough County. He was committed to the custody of the Department of Corrections, Juvenile Division.

The jurisdictional provision relating to the issue before us, Section 2 — 2 of the Juvenile Court Act, provides that a delinquent boy is one who prior to his 17th birthday, has violated, or attempted to violate, any federal or state law or municipal ordinance. (Ill. Rev. Stat. 1971, ch. 37, sec. 702 — 2.) To bring the appellant within the scope of such Section the delinquency petition alleged “that said minor is a Delinquent Minor-as defined in Illinois Revised Statutes, ch. 37, sec. 702 — 2, in that on Thursday, September 16, 1971, he was apprehended after he had attempted to pass a bad check in the amount of $53 in Blandinsville, Illinois, on Monday, September 13, 1971, to knowingly obtain by deception, control over the property of another and with the intent to deprive the owner permanently of said property, which is a violation of Chapter-38, sec. 8 — 4(a) of Illinois Revised Statutes, 1969.” Prior to the hearing thereon, counsel for appellant made a motion to dismiss tire petition on the ground that it did not allege the commission of a crime, and it is first contended on this appeal that the trial court erred in denying such motion.

We believe that the basic issue here is controlled by the United States Supreme Court case of Application of Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428. In the view we take of the instant case, we see little purpose in discussing the arguments contained in the respective briefs relating to this issue other than to observe that the arguments dwell on the proposition of whether the crime alleged to have been attempted by appellant should have been charged as theft under Section 16 — 1(b) of the Criminal Code of 1961, or as a deceptive practice under Section 17 — 1(d) thereof. (See: Ill. Rev. Stat., 1971, ch. 38, secs. 16 — 1(b) and 17 — 1(d); People v. Samples, 80 Ill.App.2d 182; People v. Greene, 92 Ill.App.2d 201.) This argument or controversy, we believe, serves to fortify the conclusion we reach. It is the pubfic policy of this State that a court guards carefully the rights of minors, and, to this end, a court wül even intervene of its own motion and take note of legitimate and substantial errors in proceedings involdng minors even though the minors were represented by counsel. (27 I.L.P. Minors, § 73, p. 56; Muscarello v. Peterson, 20 Ill.2d 548; Clarke v. Chicago Title & Trust Co., 393 Ill. 419.) Appropriate objection was in fact made by attorney for appellant in the court below. With the objective in mind of maximum protection for a minor, it is our opinion that the delinquency petition in this case should have been dismissed for its failure to sufficiently inform the appellant of the crime, or of the delinquent act, under which the jurisdiction of the court was being invoked.

Speaking in Application of Gault (1967), 387 U.S. 1, 18 L.Ed.2d 529, 18 S.Ct. 1428, the Supreme Court of the United States has held that due process of law gives a juvenile the right to notice of the charges against him, and that in order to permit the preparation of a defense and such investigation as may be necessary, the charge must set forth with particularity the misconduct upon which the delinquency petition was based and such notice must be given a reasonable time prior to the hearing on such petition. In the present case, the petition informs appellant that appellant’s misconduct was an attempt to commit a crime under Section 8 — 4(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 8 — 4(a)) but the crime purported to have been attempted is not described either with certainty or particularity. There is no indication as to why the check allegedly attempted to be passed was a ‘Trad check”, nor does it appear who executed the check, or to whom it was attempted to be passed. As a matter of fact, as we have indicated, it is contended by appellant that the petition attempts to allege the crime of deceptive practice without showing intent to defraud, while the State argues that it alleged a crime of theft. Aside from these specific deficiencies, in our judgment the petition fails to follow the standards recommended in the Gault case and is consequently uncertain and insufficient to constitute proper notice of the misconduct with which appellant was being charged.

Other errors relating to the admission of evidence and the weight of the evidence have been urged as further grounds for reversal but need not be considered at this time. While the desirability of guidance of appellant by the Department of Corrections may be suggested by the record in this case, our determination of this case must be governed by the standards expressed in the Gault case. For the reasons stated, we conclude that the petition should have been dismissed on appellant’s motion. We, therefore, reverse both the adjudicatory order and the dispositional order entered by the circuit court of McDonough County.

Orders reversed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Albert Spicer, Defendant-Appellant.
    (No. 72-136;
    Third District
    March 15, 1973.
    Steve Hurley, of Defender Project, of Ottawa, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This was a proceeding by indictment against Ronald Albert Spicer, the defendant, charging him with the offense of burglary. He entered a plea of guilty to the charge and on Jan. 12, 1972, was sentenced by the Circuit Court of Rock Island County for a term of 2 to 4 years.

The defendant first contends that he was not properly admonished upon his guilty plea as to the maximum penalty possible.

In November 1971, after indictment and after a preliminary hearing the case was set down for trial. In December defendant’s counsel made a motion to withdraw which motion was not then ruled upon. On Jan. 6, 1972, defendant was given a one-week continuance in order to employ another attorney. He was unsuccessful and on Jan. 11 he appeared with his original attorney. A jury was selected, sworn and excused for the day. After the jury had been excused the court was notified that defendant wished to change his plea from not guilty to guilty and a signed jury waiver and plea of guilty was handed to the judge. After determining defendant’s age and extent of schooling (3 years of college) the court advised the defendant that he had the right to proceed with the jury and defendant indicated he understood.

The court inquired into the facts of the crime and then asked the defendant if the facts as recited by the State’s Attorney were as the defendant understood them to be and defendant said they were.

Defendant was then asked if he was entering the plea of guilty because in his own mind he believed he was guilty. He replied that he did so believe.

The judge then inquired as to whether there had been any plea negotiations. There had been, and the court was advised that the defendant was on parole and if his parole was revoked it would be necessary to spend about 3 years in the penitentiary; that an agreement had been reached; that as part of a plea bargain, the State would recommend a 2 to 5 year sentence to ran concurrently with any time assessed as a result of revocation of parole. Defendant agreed that this was his understanding of the agreement.

After some further colloquy the court asked the defendant if he was satisfied with his counsel. The defendant replied that he was not, that the only reason he had plead guilty was because he believed he couldn’t get another lawyer appointed, that he believed he would be found guilty if he was represented by his attorney and that he didn’t think he was guilty.

The court thereupon withdraw its previous acceptance of defendant’s plea and declared that the case would proceed before the jury in the morning.

The next morning defendant advised the court that he wished to plead guilty again. The court again asked the defendant if he believed he was guilty and the defendant replied in the affirmative. The defendant was then asked to tell the court what happened concerning the commission of the offense charged and the defendant proceeded to give a detailed account of how he willingly participated in the commission of the burglary.

The defendant was asked if it was his desire to persist in his plea of guilty to which he replied that it was. Another waiver of jury and plea of guilty was signed by the defendant. As a result of further plea negotiations the agreement had been reduced to 2 to 4 years concurrent with any time assessed as a result of revocation of parole. The defendant indicated that he understood the new agreement.

The court asked defendant if he was now satisfied with the representation that he had received from his attorney and he replied that he was. The court then accepted the plea and sentenced the defendant exactly according to the terms and conditions of the agreement.

Supreme Court Rule 402, S.H.A. ch. 110A, sec. 402 provides,
“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to defendant. The court shall not accept a plea of guilty without first, by addressing tire defendant in open court, informing him of and determining that he
understands the following:
# * #
(a) the minimum and maximum sentence prescribed by law, including when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.
# # #
(d) Plea discussions and Agreements. When there is a plea discussion or a plea agreement, the following provisions, in addition to the preceding paragraphs of this rule, shall apply:
# # # «

The Code of Criminal Procedure of 1963 also contains in sections 113-4(c) and in 115-2(a)(2) a requirement that the maximum penalty should be explained to the defendant. Section 115-2( a) is an abbreviated form of former section 732 of Chapter 38.

As early as 1906 in the case of Krolage v. People, 224 Ill. 456, the court construed the section of the Criminal Code, which then provided, “In cases where the party pleads ‘guilty’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; * * to require an explanation of the length of time the accused might be sentenced to the penitentiary.

The requirement of Krolage continued to be the law and was codified by the Criminal Code of 1963 where it remains. Supreme Court

Rules have contained a requirement since their inception. The Rules are intended to provide a procedure which will eliminate any doubt that accused understands the nature of the charge and its consequences. People v. Mackey, 33 Ill.2d 436; People v. Mace, 79 Ill.App.2d 422; People v. Stevens, 68 Ill.App.2d 265.

The substance of the requirement is that a defendant must understand his rights and the limits of his exposure to punishment. (People v. Eads, 2 Ill.App.3d 411, 272 N.E.2d 293.) The object is to inform the defendant of the consequences of his plea of guilty and to give him the right to withdraw his plea of guilty if, after having heard the consequences he desires to be tried by a jury. People v. Kontopoulos, 26 Ill.2d 388; People v. Wilke, 390 Ill. 598; People v. Evans, 45 Ill.2d 265.

The record here is devoid of any reference by the trial court as to the minimum and maximum sentence prescribed by law. How can there then be substantial compliance? The substance of the requirement is that a defendant must understand the limits of his exposure to punishment. Notice of both the minimum and maximum sentence prescribed by law is based on the assumption that notice of both will give the defendant a realistic picture of what might happen to him. (Committee Comments, S.Ct. Rule 402.) The fact that the plea of guilty was a negotiated plea has been held not to remove the case from the rule. People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548.

Having determined that the Rule was not complied with, we must also determine the effect of non-compliance. As near as we can determine it has always been held that when the Circuit Court did not comply with the statute or its progeny mies the defendant’s guilty plea must be set aside and his case remanded for another hearing at which he may plead anew. (Krolage v. People, 224 Ill. 456; People v. Rusk, 348 Ill. 218, 222; People v. Medley, 112 Ill.App.2d 279; People v. Veccio, 267 N.E.2d 27.) The Supreme Court of the United States has adopted this procedure for Federal practice, McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418. Accordingly, the judgment of the Circuit Court of Rock Island County is reversed and the cause is remanded to such court with directions that defendant be permitted to plead anew.

Reversed and remanded.

STOUDER, P. J., and ALLOY, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul C. “Podo” Hill, Defendant-Appellant.
    (Nos. 11388, 11797 cons.;
    Fourth District
    March 7, 1973.

      Rehearing denied April 10, 1973.

    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-Appellant Paul C. “Podo” Hill was convicted, on his plea of guilty, of the crimes of attempt murder, aggravated assault and ag-. gravated battery. He was granted probation. The convictions were affirmed by this Court on direct appeal. (People v. Hill, 77 Ill.App.2d 463, 222 N.E.2d 555.) In his order admitting defendant to probation on October 25, 1965, the trial judge fixed the period of probation at five years, and as a condition directed that defendant serve six months in the Illinois State Farm at Vandalia. Rond was fixed in the sum of $2500 and mittimus was stayed until October 27, 1965. Defendant failed to surrender himself to service the six months sentence at Vandalia, failed to report to the Probation Officer, and in contravention of the probation order, fled the State of Illinois. A petition to Revoke Probation was filed. Thereafter defendant was arrested in Tampa, Florida by Federal Authorities on a Federal Unlawful Flight Warrant, released on bond to secure his court appearance in that State but failed to appeal. A Petition for Interstate Rendition had been approved by the Governor of Illinois and Extradition Warrant secured from the Governor of Florida. On February 7, 1968, defendant was arrested on the Federal Warrant in Rartonville, Illinois, and he was then delivered to the Sheriff of Sangamon County.

Defendant was represented by appointed counsel and, after being properly admonished, confessed the allegations of the Petition to Revoke. The trial judge then heard evidence in aggravation and mitigation and sentenced defendant to an indeterminate term of 10 to 15 years in the penitentiary on March 11, 1969.

On November 14, 1969, defendant filed pro se a “Motion to Vacate Judgment, Under Ill. Rev. Stat. Ch. 110, Sec. 72.” In this motion defendant attempted to argue evidence which, he claimed would have proven that he acted in self-defense in shooting the victim of the crime and other matters which were of no relevance in view of his plea of guilty. He also complained, in essence, that his convictions on all three charges was improper since each was based upon the same conduct. Counsel was appointed, hearing had on defendant’s motion which was denied on February 10, 1970. Notice of appeal was filed and counsel appointed to prosecute the appeal.

On October 26, 1970, defendant filed, pro se, a Post-Conviction Petition. In the Post-Conviction Petition defendant again urges that he was improperly convicted on all three of the offenses charged and assigns, as reason for this contention, the same grounds urged in the Motion to Vacate. In addition, he argues that the Court “improperly considered evidence of defendant’s acts in violating terms of his probation in pronouncing sentence.”

In view of the fact that the Motion to Vacate and the Post-Conviction Petition present essentially identical issues, with the exception noted, the two appeals have been consolidated.

The State concedes that defendant’s convictions for aggravated battery and aggravated assault should be reversed.

During the hearing in aggravation and mitigation evidence was submitted to the trial judge concerning other criminal activity of the defendant which apparently occurred after defendant’s conviction in the instant case. These cases involved charges of bail bond jumping in the instant case, possession of dangerous drugs and bail bond jumping in the latter case. On the same day, March 11, 1969, defendant pleaded guilty to each of these charges before the same judge who imposed sentence in this case. We do not know in what order this occurred. On the Possession of Dangerous Drugs charge, defendant was sentenced to six months incarceration to run concurrently with the 10 to 15 year sentence here complained of and to a one year sentence, (also concurrent, on the bail jumping charge in connection with the possession charge, and to 3 to 5 years, also concurrent, on the bail jumping charge in connection with the case here being reviewed.) All sentences were imposed following pleas of guilty. Certain other charges were dismissed. Defendant’s record also discloses that he received a bad conduct discharge from the Navy, that he had served three years and two months in the penitentiary at Menard for involuntary manslaughter. In the instant case, defendant had shot a man during an argument in a bar. Counsel who represented defendant in the instant case on March 11, 1969, also represented him in all of the other cases which were disposed of on that date, testified that “all matters were to be clear and disposed of so that when Mr. Hill left the courtroom, there would be no other charges remaining against him.”

The record is also clear that defendant’s attorney had negotiated with the State’s Attorney concerning disposition of all charges pending against him and that the State’s Attorney was going to recommend the 10 to 15 year sentence which the Court, in fact, imposed. Defense counsel testified “I did not accept the prosecutor’s recommendation, and argued against it, I never agreed to it. I told Mr. Hill what the recommendation would be, and explained to him that it could be greater or less, but he was aware of what the recommendation was.” Defendant was possessed of this information prior to confessing the violation of the terms of his probation.

The Post-Conviction Act is limited to those errors which are of constitutional magnitude, and the statute providing for hearing in aggravation and mitigation does not confer any constitutional rights. (People v. Wilbourn, 48 Ill.2d 187, 190, 268 N.E.2d 418.) Contentions identical to those urged here were determined by the Supreme Court in People v. Sluder, 40 Ill.2d 559, 561, 240 N.E.2d 666, in the following language: “The dominant issue raised by the defendant is the propriety of the sentence imposed upon him which, he contends, was based upon serious crimes said to have been committed by him while he was on probation, rather than the offense to which he had pleaded guilty # * *. But the sentence imposed is within statutory limits prescribed for the offense to which defendant had pleaded guilty, and this issue does not involve a constitutional question.”

We accept and approve the confession of error by the People and, accordingly, defendant’s convictions for aggravated assault and aggravated battery are reversed. The conviction for attempt murder and the sentence imposed are affirmed.

Reversed in part, affirmed in part.

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