text:
    TONI M. KONALD et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT 220 et al., Defendants-Appellants.
    Second District
    No. 82—496
    Opinion filed April 6, 1983.

      Fay Hartog-Rapp and Everett E. Nicholas, Jr., both of Robbins, Schwartz, Nicholas, Lifton and Taylor, Ltd., of Chicago, for appellants.
    Larry H. Allen, of Burfeind & Schlickman, Ltd., of Arlington Heights, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court;

The plaintiffs, Toni M. Konald et al., brought a petition to detach certain territory from Community Unit School District No. 220 and annex that territory to Community Consolidated School District 15 and Township High School District 211, under article 7 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 7 — 01 et seq.). In concurrent decisions, the Regional Board of School Trustees of Lake County granted the petition and the Regional Board of School Trustees of Cook County denied the petition. Pursuant to the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), recodified as article 3 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.), the plaintiffs brought an administrative review action in the circuit court of Lake County challenging the denial of their petition. The defendants were the three school districts involved and the regional boards. The circuit court reversed the decision of the Cook County board, and the defendant Board of Education of Community Unit School District No. 220 appealed that order.

The issues presented for review are (1) whether the withdrawal of signatures of certain petitioners prior to the decision of the Regional Board of School Trustees of Cook County was a proper basis for denying the petition, (2) whether the decision of the Regional Board of School Trustees of Cook County was against the manifest weight of the evidence, and (3) whether petitions to detach territory under the School Code must comply with the Election Code provisions for circulation of petitions.

Section 7 — 2 of the School Code provides, inter alia, that to change the boundaries of existing school districts by detachment, a petition may be brought by two-thirds of the legal voters residing in any territory proposed to be detached. Here, there were 697 registered voters in the detachment area at the time the petition was filed, of which 534 initially signed the petition. This was a sufficient number under the statute, and the requisite number of names was on the petition at the time the Lake County regional board conducted the hearing on the petition and issued its decision in favor of detachment.

Section 7 — 2 of the School Code also provides that detachment be by “concurrent action” of (a) the county board of school trustees in which the county superintendent has supervision over the greatest portion of the detachment territory and (b) the county board of school trustees of the county in which the county superintendent of schools has supervision over the district to which the territory is proposed to be annexed. Section 7 — 6 of the School Code provides that the detachment territory hold a hearing on the petition and, after entering its final order, send a certified copy of the transcript of the hearing to any other regional board that must act. The other regional board must then “conduct a hearing as provided in this section on the transcript and either grant or deny the request in the petition.” (Ill. Rev. Stat. 1979, ch. 122, par. 7 — 6.) The Cook County regional board had supervision over the district to which annexation was sought. In compliance with section 7 — 6, the Lake County board sent to the Cook County board the transcript of the hearing conducted on the detachment petition.

During the Cook County board’s hearing on the matter, a document was submitted to the Cook County board signed by 78 of the original petitioners requesting -withdrawal of their names from the petition to detach. This would have dropped the number of signatures on the petition to detach to less than- two-thirds of the registered voters residing in the proposed detachment territory.

The order of the Cook County board denied the petition for detachment and annexation on two bases: (1) that the petition was insufficient at law in that 464 signatures were needed to validate the petition and that at the time of the hearing before the Cook County board there were only 437 valid signatures and (2) that the petition was not in the best interests of the schools and the educational welfare of the pupils would not be improved by the proposed boundary change. On administrative review, the circuit court reversed the Cook County board’s order, finding that the Cook County board acted contrary to law in accepting the evidence not determined by the Lake County board and that the Cook County board’s order was contrary to the manifest weight of the evidence.

On appeal, the defendant argues that the withdrawal of signatures deprived the Cook County board of jurisdiction to hear the detachment petition and that jurisdiction is a matter that may be raised at any time prior to a final decision. The final decision, the defendant argues, does not occur until both boards have acted, in light of the requirement of concurrent action. The plaintiffs contend that the hearing by the Cook County board should have been limited strictly to the contents of the transcript and that the petition withdrawing the 78 names was additional evidence, which the Cook County board should have been precluded from considering.

Our supreme court first articulated the general rule for the withdrawal of signatures from a petition in Littell v. Board of Supervisors (1902), 198 Ill. 205. There, the issue was whether petitioners for the organization of a new township could, after the petition had been presented to the county board, withdraw their names so as to leave it with a statutorily insufficient number of names, thereby defeating the organization, and if so at what time they must request withdrawal. The request to withdraw the names was made after the county board posted notice of the hearing. Under the applicable statute, if the petition conformed to all its requirements the county board had no discretion and had to allow it. However, the board was required to give notice before it could take any final action, in order to allow interested parties to appear at the final hearing. The supreme court found that the act of signing such petitions “may be revoked at any time before the jurisdiction of the body authorized to act has been determined by it.” (198 Ill. 205, 208.) In Littell, a determination of jurisdiction in effect was the final action of the board, since it had no discretion in deciding the matter. The court also stated:

“If all the petitioners had sought to dismiss the petition at any time before final action by the county board it would scarcely be claimed that they would not have had the right to do so. Each petitioner acts on his individual responsibility, and if he should change his mind on the question whether a new township would better serve the convenience of the inhabitants residing therein, or if he should be induced to sign it under a misapprehension or through undue influence, he ought to have the right to correct his mistake, if he does so before the rights of others have attached by the final action on the part of the board. *** To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him, at any time after it has been presented to a body authorized to act upon it, would be a harsh and unreasonable rule and also liable to work a great hardship.” (Emphasis added.) (198 Ill. 205, 210.)

The principles announced in Littell have been followed in numerous cases involving different statutory schemes for petitions. In Theurer v. People ex rel. Deneen (1904), 211 Ill. 296, the court was asked to decide whether a signature could be withdrawn from an application for a dramshop license after the application was filed and the mayor gave provisional consent to open the dramshop but before the license was issued. The court held that final action was not taken until the license was issued and cited Littell for the rule that a “petitioner [may] withdraw his name from a petition at any time prior to the time the tribunal created by law to pass upon and determine the proposition submitted by the petition has finally acted.” 211 Ill. 296, 303.

The Littell rule was also applied to allow the withdrawal of signatures from the petition for the removal of a county seat, when the request to "withdraw was made on the convening of the county court at the term at which the petition came up for hearing. (Kinsloe v. Pogue (1904), 213 Ill. 302, 305-06.) Where a petition for the organization of a drainage district was filed in court, followed by giving requisite notice and setting a hearing date, the court did not acquire general jurisdiction until it ascertained whether the petition was signed by the requisite number of property owners, and the withdrawal of names from the petition was permitted since the jurisdiction had not yet attached. (Mack v. Polecat Drainage District (1905), 216 Ill. 56, 60-61.) Similarly, even where a court must grant a petition to abolish a drainage district upon presentation of a petition signed by the required number of landowners, it is the order of court and not the presentation of the petition that abolishes the district, and names may be withdrawn after the petition is filed if done so before the order is entered. (Boston v. Kickapoo Drainage District (1910), 244 Ill. 577, 578-79.) In such a case, the board has a reasonable time to examine the petition, during which the right to withdraw is viable. Sayers v. Drainage Commissioners (1919), 214 Ill. App. 576, 580.

The request of certain petitioners to withdraw their names from a petition for the alteration of a public highway was too late when it was made after the commissioners of highways had passed upon the petition and an appeal was taken to the supervisors. (Commissioners of Highways v. Bear (1906), 224 Ill. 259, 261.) In that case, the commissioners’ action was final for the purposes of jurisdiction, and the jurisdiction could not be destroyed during the appeal. Merely meeting, noting that a petition has been filed, setting a date for hearing, and ordering that notice be given is not such final action upon which a petition to vacate a highway thus deprives the subscribers of their right to withdraw from the petition. Malcomson v. Strong (1910), 245 Ill. 166, 168.

In Commissioners of Sny Island Levee Drainage District v. Dewell (1912), 256 Ill. 126, a sufficient application for a subdrainage district was presented to the commissioners, and after the commissioners passed upon the application and filed their report recommending the establishment of the subdistrict, certain landowners were properly permitted to -withdraw their signatures, where the statute provided that the court upon hearing should pass upon the sufficiency of the application. The commissioners’ report was considered preliminary to the hearing. The court expressed the following rationale for establishing the final action as the time the requisite number of signatures on a petition must be present:

“[A] petitioner or applicant should not be permitted to speculate upon the action of the tribunal which he has assisted in putting in motion, by waiting until the tribunal has acted, and if its action is satisfactory to him to stand by its action, but if it is not satisfactory, to overturn its action by withdrawing his name from the petition or application which forms the basis of the action of the tribunal which has decided contrary to his expectations or wishes.” 256 Ill. 126, 137.

In Irmegar v. County of Tazewell (1914), 264 Ill. 172, a written petition to contest a special election was filed in circuit court, and after the time for filing contests had elapsed several petitioners sought to withdraw their names from the petition. The court held that the attempted withdrawal was untimely. The court noted that in Littell and its progeny the petitions were in no sense pleadings in a judicial proceeding in court, nor did the dismissal of the petition operate to dispose finally of the questions involved, since a new petition could thereafter be filed for the same purpose. The court distinguished the Littell rule from the rule for judicial proceedings, where jurisdiction of a court over a cause depends on the state of facts at the time the action is brought, and after jurisdiction has once vested it cannot be divested by subsequent events. 264 Ill. 172, 176.

In People v. Peterson (1915), 192 Ill. App. 644, the appellate court in determining the validity of a license for a dramshop found that all the jurisdictional facts necessary to authorize the issuance of the license must exist when final action was taken and that until then consents to the license were revocable. An application with the required consent was filed, and following the necessary investigation, a postdated license was issued. After the license was issued, but before its effective date, certain property owners whose consent was required withdrew their consent. The court found the effective date of the license to be the legal date of the issuance, ruling that no final action could have taken place before then, and approved the withdrawal.

In People ex rel. School Directors v. Oakwood (1919), 290 Ill. 45, 48, concurrent action of multiple boards of trustees was required to create a new school district, petitioners properly withdrew their names before any action was taken, and the petitions were denied by the boards of trustees. The withdrawal could not be revoked to reinstate the names on an appeal of that decision to the county supervisor, whose only authority was to review the decision and not to entertain what would amount to an original petition.

The ability of petitioners to vacillate was addressed in Crocher v. Abel (1932), 348 Ill. 269, regarding a petition for annexing territory to a city. The court observed:

“[The Littell] rule is a necessary inference from the very nature of the right of petition and applies not merely to the petitions themselves but to withdrawals. Courts are not justified in placing any restriction upon the free action of the citizen not placed there by law and not required by good morals or propriety. We observe no reason why the signer of a petition who withdraws his signature may not change his mind a second time if he thinks he is better advised or informed about the subject. Up to the time of final action thereon he should have control of the matter as to whether or not his signature shall remain on the petition.” 348 Ill. 269, 274.

In Romine v. Black (1939), 304 Ill. App. 1, the court affirmed that the principles of Littell have general application to various petitions. The court quoted from County Court v. Pogue (1904), 115 Ill. App. 391, 399:

“ '*** Signatures to such petitions are easily obtained. Ordinarily experience teaches that in matters which do not seem closely to touch themselves, many persons sign petitions without sufficient consideration and inquiry, and if the subject after-wards becomes a matter of public discussion so that their attention is carefully drawn to the reasons for that for which they have petitioned, they often then conclude that they have been hasty in signing, or are in error, or that they do not wish the petition granted.’ ” 304 Ill. App. 1, 10-11.

In Bridgeport Township High School District No. 3—12 v. Shank (1955), 7 Ill. App. 2d 183, 191-92, concerning petitions for detachment of territory from one school district and attachment to another, the only method of invoking the power of the county board of trustees to act was by filing a petition in conformity with the statute. Therefore, it was incumbent on the board to. determine first whether the petition met the prescribed conditions. Since names had been withdrawn from the petition, the commencement or continuation of the hearing should have abated.

Recently, in Board of Education v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067, the court considered the rights of petitioners to withdraw from and reinstate names on a petition for detachment and annexation. The petition was filed September 7, 1977, with a sufficient number of signatures. Thereafter, certain names were withdrawn, and later some of the withdrawals were withdrawn. After that, in May 1978, the hearing officer heard evidence. When the trial court got the case, the legality of the petition was in question, and it was remanded to determine jurisdiction, with instructions that September 7, 1977 (the date the petition was filed), would be the date for determining the eligibility of the voters to sign and that any withdrawals, reinstatements, and additions would be counted if filed before June 1, 1978 (presumably the date of the decision, although this is not clear from the opinion). The appellate court approved of the trial court’s time frame.

These cases evidence a strong reluctance to cut off the rights of petitioners to change their minds at any point before the acting tribunal has finally disposed of the matter and the petition in accordance with its proper powers. Even where that tribunal has no discretion to determine the merits of the proposal in the petition and is compelled to act on the petition provided the petition is legally sufficient, the filing of the petition is not the point at which its sufficiency is decided. Jurisdiction over the matter in the petition does not attach at all if names are withdrawn before the sufficiency of the petition is determined. Where the administrative tribunal does have the power to decide the merits, it may not proceed with the hearing unless initially the petition is legally sufficient, and even then it may not proceed to a final order unless the requisite number of names remains in effect. Final action has been construed liberally to mean the time at which an order is legally effective and not simply the time at which a decision is reached. However, the rights of petitioners to add or withdraw their names do not continue during the time for appeal.

The interplay of final action and concurrent action has also been construed. It does not mean or imply joint action. Concurrent action is the independent action of each board, acting separately, each agreeing to the change and each having jurisdiction to act in the premises. (Heppe v. Mooberry (1932), 350 Ill. 641, 647; People ex rel. Chamberlin v. Trustees of Schools (1943), 319 Ill. App. 370, 378; Harris v. Regional Board (1980), 82 Ill. App. 3d 710, 712.) In Heppe v. Mooberry, the petitioners sought to change the boundaries of school districts. The applicable statute required the concurrent action of the boards of trustees in which the districts lay. The voters in the affected territory had to petition each board, and the respective petitions did not have to be signed by the same individual voters. Duplicate original petitions were filed with each board. The first board to rule on the petition granted it. Before its ruling, certain voters asked the second board to withdraw their names from its petition, but there was never a request to withdraw names from the petition filed with the first board. The court upheld the withdrawal, stating that “[i]f one of such boards has jurisdiction by reason of a sufficient petition and the other has not such jurisdiction by reason of not having a sufficient petition, then the action of both boards is nugatory and there can be .no legal concurrent action.” 350 Ill. 641, 647.

Heppe is distinguishable from the instant case in that it construed a different section of the School Code, each township had to be petitioned, and each held a separate hearing rather than using the same transcript, but the principles of equating final action to the action of the last board whose concurrent action is required are sound. The Heppe court cited People ex rel. McNeal v. Dick (1914), 263 Ill. 66, 68, for the following rule:

“ ‘The action of the trustees upon the petition must be concurrent. The action of each board is required. Final action of the trustees means the finished action of all the boards required to act.’ ” (Emphasis added.) (350 Ill. 641, 648.)

In People ex rel. McNeal v. Dick, the issue before the court concerned the jurisdiction of the superintendent to hear an appeal when concurrent action of two school boards was required, the first board denied the petition for consolidation of two districts, and the second board granted it. The appeal was timely only as to the second order. The court noted that, even though the action of the first board made it certain that the prayer in the petition could not be granted, final action on the petition did not occur until the last board of trustees acted. Although this case involved jurisdiction for an administrative appeal, the rationale as to when final action occurred is equally applicable for purposes of petitioners’ rights to withdraw, as adopted by the court in Heppe.

In Harris v. Regional Board (1980), 82 Ill. App. 3d 710, the appellate court construed the same sections at issue in the case at bar, in determining when an administrative decision could be reviewed. The court stated:

“Section 7 — 6 of the Code when considered in conjunction with section 7 — 2 indicates that a decision denying or granting the petition must be made by both the detaching and attaching school districts. A subsequent hearing by the attaching school district is imperative when the detaching district grants the petition for detachment.” (82 Ill. App. 3d 710, 712.)

The court concluded that the decision of each county board was necessary to constitute an administrative decision subject to review. This case, like People ex rel. McNeal v. Dick, concerns the proper time for review, but again the reasoning is pertinent to when final action occurs for purposes of freezing the names on a petition.

There was no final action in the present case at the time the request to withdraw was made, since the Cook County board had not yet reached its decision. The plaintiffs’ theory that the request to withdraw was new evidence and uncognizable on that basis is incorrect. The withdrawal issue was independent of the hearing on the merits and the presentation of evidence. It went rather to the very power of the Cook County board to conduct a hearing and reach a decision. The plaintiffs’ complaint that they had no prior notice that the withdrawals would be presented is not buttressed by any showing of prejudice from the lack of notice and does not afford a basis for overturning the Cook County board’s decision. The request to withdraw was properly submitted prior to the final decision. The plaintiffs do not suggest that the request itself was defective other than in its being presented after the Lake County board’s decision. Since the withdrawal was timely, the petition before the Cook County board was legally insufficient, and the board had no authority to act further on the petition in that form. Therefore, the decision of the trial court in reversing the Cook County board was erroneous. We therefore do not reach the other issues presented.

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

Judgment reversed.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
      In re D.A., a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. D.A., Respondent-Appellant.)
    Second District
    No. 82—535
    Opinion filed May 3, 1983.
    G. Joseph Weller and Paul Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Respondent, D.A., appeals from a dispositional order of the circuit court of Du Page County committing her to the Department of Corrections, Juvenile Division, after she had been previously adjudged to be a delinquent minor and made a ward of the court. The adjudication that she was a delinquent minor was based on a finding that respondent had committed the offense of arson by setting fire to a building of the Camelot Care Center located in Palatine, Illinois, in violation of section 20 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1(a)).

Respondent raises the following issues on appeal: (1) whether the finding that respondent committed arson must be reversed because the State failed to present evidence, independent of respondent’s admissions, to prove the corpus delicti of the offense; (2) whether the finding of delinquency must be reversed because the State failed to properly allege and prove venue; and (3) whether the State’s failure to name the respondent’s legal guardian, Sarah Bassett, supervising probation officer, Juvenile Division, Du Page County Probation Office, as a respondent in the supplemental petition violated the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) and deprived the court of jurisdiction. Since we find the first issue to be dis-positive, we will not discuss the others and will only set forth the facts necessary for the resolution of the first issue.

Respondent was found to be a minor otherwise in need of supervision (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 3) and was adjudged to be a ward of the court on March 19, 1982. On April 2, 1982, she was granted supervision for one year and placed in the Camelot Care Center pending permanent foster placement. On May 20, 1982, the State filed a supplemental petition seeking to have respondent found to be a delinquent minor. The supplemental petition alleged, inter alia, that respondent committed the offense of arson in that on or about May 7, 1982, respondent, by means of fire, knowingly damaged a building of the Camelot Care Center.

The State called Emil Jensen, a fire investigator for the village of Palatine, as a witness at the adjudicatory hearing on this matter. He testified that on May 7, 1982, at approximately 9:45 a.m., he was called by telephone to investigate a fire, which had occurred that day, in a building of the Camelot Care Center. He stated that he examined the building and determined that the fire had originated in a second floor bathroom. He was not asked about, and did not testify to, the cause of the fire. He was not asked to render an opinion whether the fire was knowingly set by some person or not.

Jensen stated that he had a conversation with respondent on May 7, 1982, during his investigation of the fire. He testified that respondent told him that at approximately 9 o’clock that morning she and the other residents of the building went out to the car to go to the dentist. Respondent told him that she forgot her coat and that she went back into the building to get it. She said she was in the building for three or four minutes, then returned to the car. She and the others then left for the dentist. Respondent told him that she had not seen smoke or fire in the building at that time and that she knew everyone else was out of the building waiting to go to the dentist or to school.

The State called Tina Schweikhardt as a witness. She testified that she had had a telephone conversation with respondent on May 13 or 14, 1982, in which respondent said, “Yeah, ha, ha, I set Camelot on fire.” Schweikhardt further testified that after this conversation she received a letter, which she recognized as being in respondent’s handwriting. This letter was admitted into evidence.

The letter was dated “5-9-82” and contained the following passage:

“I’m at another Group home called Keritas. You’re gonna laugh when you hear why! I set Camelot on fire!! I made sure nobody was in our cottage & I set a box of Kotex on fire in the bathroom closet! I said I was just going back in to get my purse (they were waiting in the van) & that’s when I did it. Then when we got back, the place was burned down & the fire department was there. $500,000 in damage, plus all the records were burned up. SAD! I acted like I was shocked. The fire dept, thinks it was caused by the curling iron! HA HA.”

This letter was signed with respondent’s first name. Respondent’s mother also testified that this letter was in respondent’s handwriting.

Other witnesses testified at the adjudicatory hearing but their testimony is not relevant to the resolution of the issue of the proof of corpus delicti raised by respondent.

In order for a conviction based upon a confession to be sustained, the confession must be corroborated. (People v. Willingham (1982), 89 Ill. 2d 352, 358-59, 432 N.E.2d 861.) Two reasons for this requirement are commonly given: (1) that confessions are unreliable if coerced and (2) that for various psychological reasons individuals “confess” to crimes that either have never occurred or for which they are not legally responsible. People v. Dalton (1982), 91 Ill. 2d 22, 29, 434 N.E.2d 1127.

' The corroboration requirement is satisfied by proof of the corpus delicti. (People v. Willingham (1982), 89 Ill. 2d 352, 359, 432 N.E.2d 861.) In order to have proved the' corpus delicti in this arson case, the State must have proved: (1) that the burning of a building occurred and (2) that someone was criminally responsible for that burning. (People v. O’Neil (1960), 18 Ill. 2d 461, 463, 165 N.E.2d 319; People v. Lueder (1954), 3 Ill. 2d 487, 489, 121 N.E.2d 743; People v. Aponte (1977), 45 Ill. App. 3d 1030, 1035, 360 N.E.2d 424.) Respondent does not. dispute that the State proved that a building had been burned. She argues that the State failed to present any evidence that anyone was criminally responsible for the fire.

Some evidence, exclusive of the confession, which tends to show that a crime has occurred, must be presented in order to establish the corpus delicti, and the trustworthiness necessary, to corroborate a confession. (People v. Willingham (1982), 89 Ill. 2d 352, 358, 432 N.E.2d 861.) While this independent evidence, apart from the confession, need not establish beyond a reasonable doubt that an offense has occurred, it must tend to prove that an offense has been committed by someone. (People v. Willingham (1982), 89 Ill. 2d 352, 361, 432 N.E.2d 861.) If independent evidence tending to show that a crime has occurred exists, then a confession may be considered along with this independent evidence to establish beyond a reasonable doubt that the crime has occurred. (People v. Willingham (1982), 89 Ill. 2d 352, 361, 432 N.E.2d 861; People v. Barkenlau (1982), 105 Ill. App. 3d 785, 787, 434 N.E.2d 856.) Thus, the issue here is whether the State presented evidence, independent of respondent’s admissions, which tended to prove that someone was criminally responsible for the fire at the Camelot Care Center. If such independent evidence was presented, then respondent’s admissions may be considered, along with this evidence, in determining whether the corpus delicti of arson has been proved beyond a reasonable doubt.

The record discloses that the State, inexplicably, failed to introduce any evidence which tends to prove that someone was criminally responsible for the fire. Jensen, the fire investigator, testified only that the fire originated in the second floor bathroom. He did not testify that the fire appeared to have been deliberately started. In fact, he was never asked his opinion of the cause of the fire nor was he asked whether the fire was of human origin. No other witnesses testified as to the cause of the fire. Where the independent evidence tends to establish only that a building burned, and there is nothing, save the confession alone, which tends to corroborate the element that some person knowingly fired the building, the corpus delicti has not been proved. People v. Lueder (1954), 3 Ill. 2d 487, 489-90, 121 N.E.2d 743; People v. Hougas (1968), 91 Ill. App. 2d 246, 249-50, 234 N.E.2d 63.

Jensen also testified that respondent told him she was in the building around 9 a.m. and that everyone else was outside. However, respondent’s mere presence at the scene of the fire, sometime before the fire, without other facts, is not evidence which tends to show that someone was criminally responsible for the fire. See People v. Hougas (1968), 91 Ill. App. 2d 246, 250, 234 N.E.2d 63.

The State cites People v. O’Neil (1960), 18 Ill. 2d 461, 165 N.E.2d 319, where the court upheld a conviction for arson though “the location of the fire [did] not in and of itself necessarily suggest arson.” (18 Ill. 2d 461, 464-65, 165 N.E.2d 319.) However, O’Neil is distinguishable from this case. There the corroborating facts included defendant’s attempt, several days after the fire, to enter the locked basement where the fire had originated. Defendant not only confessed but showed police the exact origin of the fire and completely reenacted its occurrence. He also threatened suicide. The court held that these facts were sufficient corroboration of the confession, and that together with the confession they established the corpus delicti. No corroborating facts were present here. The State has completely failed to present any independent evidence which tends to establish that anyone was criminally responsible for the fire.

In addition, the State maintains that the delinquency adjudication based upon respondent’s admissions can be upheld if independent evidence corroborates these admissions. However, a similar argument was rejected in People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861, wherein our supreme court held that while corroborating evidence that tends to confirm the circumstances related in the confession may be considered in determining whether the corpus delicti is sufficiently proved, this does not obviate the requirement that either some independent evidence, or the corroborating evidence, tend to establish that a crime occurred. (89 Ill. 2d 352, 360, 432 N.E.2d 861; see McCormick, Evidence sec. 158, at 346-47 (2d ed. 1972).) There is no evidence in this record, absent respondent’s admission, that anyone was criminally responsible for the fire.

For the foregoing reasons the order of the circuit court of Du Page County is reversed.

Reversed.

LINDBERG and 'VAN DEUSEN, JJ., concur.


author: JUSTICE RIZZI

text:
    DEBRA RAE WOLINSKY, Plaintiff-Appellant, v. JOSEPH L. KADISON et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—335
    Opinion filed March 30, 1983.
    Rehearing denied May 26, 1983.

      Law Firm of Martin E. Litwin, of Chicago (Alan Michael Katz, of counsel), for appellant.
    Pretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Robert Marc Chemers and Joseph B. Lederleitner, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

In a three-count amended complaint, plaintiff, Debra Rae Wolinsky, sought damages from defendants, the Ambassador House Condominium Association, its board of directors individually and as the board, Eugene Matanky & Associates, Inc., and Eugene Matanky & Associates Management Corporation, the companies employed to manage the condominium, and Andra Addis, an employee of the management companies. All defendants except Eugene Matanky & Associates, Inc., moved to dismiss the complaint for failure to state a cause of action. The trial court dismissed the complaint. We affirm in part and reverse and remand in part.

In count I of her amended complaint, plaintiff alleged that she owned unit 4D in the Ambassador House Condominium and that she was a member in good standing of the association. She further alleged that in late August 1978, she contracted to purchase unit 21F in the same condominium, and in early September she contracted to sell unit 4D. In late September, the board notified plaintiff that it was exercising its right of first refusal with regard to unit 21F, and the seller of unit 21F then terminated its contract with plaintiff. Plaintiff also alleged that the board had knowledge of the contents of the association’s bylaws and that in exercising its right of first refusal, the board acted without the affirmative vote of two-thirds of the total ownership of the common elements as required under the bylaws.

Count II of plaintiff’s complaint is predicated upon a violation of the Chicago condominium ordinance which provides, inter alia: “No person shall be denied the right to purchase or lease a unit because of race, religion, sex, sexual preference, marital status or national origin.” (Municipal Code of Chicago 1978, ch. 100.2, par. 100.2 — 4.) Plaintiff alleged that defendants violated the ordinance because the board exercised the right of first refusal on the basis of the condominium management’s report to the board that plaintiff is an unmarried female who would occupy unit 21F with her children.

In count III, plaintiff realleged most of the allegations of count I and further alleged that defendants acted with wilful and wanton disregard for the bylaws of the condominium association. Plaintiff attached to the complaint a copy of her contract with the owner of unit 21F and a copy of the association’s bylaws.

In determining whether a motion to dismiss a complaint was properly allowed, well-pleaded facts and reasonable inferences which can be drawn therefrom must be accepted as true. (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145, 404 N.E.2d 1104, 1107.) The complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to relief. (Saldana v. American Mutual Corp. (1981), 97 Ill. App. 3d 334, 336, 422 N.E.2d 860, 862.) Plaintiff argues that the dismissal of her complaint was improper because her complaint stated a cause of action for (1) unreasonable restraint on alienation; (2) violation of the bylaws of the condominium association, which she characterizes as a breach of fiduciary duty; (3) violation of the antidiscrimination section of the Chicago condominium ordinance; and (4) wilful and wanton misconduct.

In response to plaintiff’s argument that she stated a cause of action for unreasonable restraint on alienation, defendants first contend that plaintiff lacks standing to complain about the board’s exercise of the right of first refusal. Defendants maintain that the restraint on alienation here only involved the rights of the owner of unit 21F to sell that property and that as a prospective purchaser, plaintiff had no interest in unit 21F. We disagree.

In determining whether a party has standing, the primary focus is upon the personal stake in the outcome of the controversy of the person seeking adjudication of a particular issue. (Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253, 371 N.E.2d 881, 883.) Thus, the person seeking to invoke the jurisdiction of the court must have some real interest in the cause of action. (Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253-54, 371 N.E.2d 881, 883.) The standing doctrine is not meant to preclude a valid controversy from being litigated, but rather, to preclude persons having no interest in the controversy from bringing suit. (Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 670, 358 N.E.2d 688, 691.) Where the person most directly affected actually has no interest in the controversy, courts have been more liberal in allowing persons indirectly affected to bring suit. Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 670, 358 N.E.2d 688, 691.

Here, plaintiff has a substantial, real interest because she was unable to purchase the unit for which she had contracted. Moreover, the seller of unit 21F, the party who, according to defendants, would have standing to bring an action for unreasonable restraint on alienation, actually has no interest here since under the condominium declaration, the association as purchaser would be bound to the same terms as plaintiff proposed. Under these circumstances, we believe that plaintiff alleged facts which indicate sufficient interest to withstand a motion to dismiss.

Defendants next turn to the substance of plaintiff’s action for unreasonable restraint on alienation, and they argue that the right of first refusal exercised here is a reasonable restraint. Plaintiff contends that a right of first refusal is an unreasonable restraint on alienation when exercised, as it was here, to exclude current members of the association. In other words, plaintiff argues that the restraint here is unreasonable as applied. We believe that plaintiff adequately stated a cause of action under this theory.

A board must exercise a right of first refusal reasonably upon consideration of the prospective purchaser’s qualifications in light of the economic and social reasons which justify the restraint itself. (See Logan v. 3750 North Lake Shore Drive, Inc. (1974), 17 Ill. App. 3d 584, 590, 308 N.E.2d 278, 283.) Thus, a requirement that the right of first refusal be exercised reasonably must be implied. (See Mowatt v. 1510 Lake Shore Drive Corp. (7th Cir. 1967), 385 F.2d 135, 137.) The criteria for testing the reasonableness of an exercise of this power by a condominium association are (1) whether the reason for exercising the right of first refusal is rationally related to the protection, preservation or proper operation of the property and the purposes of the association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner. See Laguna Royale Owners Association v. Darger (1981), 119 Cal. App. 3d 670, 683-84, 174 Cal. Rptr. 136, 144.

Defendants argue that plaintiff’s membership in the association does not “confer greater rights” on plaintiff, and that plaintiff stepped out of her role as a member of the association and acted merely as a member of the public when she decided to purchase unit 21F. We find no merit in either contention. Moreover, even if we were persuaded by defendants’ arguments, the reasonableness requirement still applies to defendants’ actions. Since plaintiff alleged her membership in the association and the board’s exercise of a right of first refusal on the unit she had contracted to purchase, we conclude that plaintiff’s complaint stated a cause of action for unreasonable restrain on alienation.

Next, plaintiff argues that her complaint was improperly dismissed since it stated a cause of action for violation of the bylaws of the association, which she characterizes as a breach of fiduciary duty. Plaintiff contends that defendants breached their fiduciary duty when they exercised a right of first refusal without first obtaining the requisite affirmative vote of the ownership. Article I, section 6 of the bylaws provides:

“The affirmative vote of not less than two-thirds (%) of the total ownership of the Common Elements is required in order to approve any of the following proposed action: (1) merger or consolidation of the Association; (2) sale, lease, exchange, mortgage, pledge or other disposition of all, or substantially all of the property and assets of the Association; and (3) the purchase or sale of land or Units on behalf of all Unit Owners.”

Defendants argue that the bylaws do not specifically refer to the right of first refusal, and therefore they are inapplicable here. According to defendants, the association's rights and powers emanate from the recorded declaration of condominium ownership. Paragraph 19B of the declaration details the notice procedures regarding “sale, leasing or other alienation” and then provides:

“During the period of twenty (20) days following receipt by the Board of such written notice, the Board, on behalf of all remaining Unit Owners, shall have the first right and option to purchase or lease such Unit (or to cause the same to be purchased or leased by the designee or designees, corporate or otherwise, of the Board) upon the same terms and conditions as stated in the aforesaid notice received by the Board.” (Emphasis added.)

We find no merit in defendants’ contention.

When a controversy arises as to the rights of a unit owner in a condominium, we must examine any relevant provisions in the condominium enabling statute, consider the declaration, and study the bylaws and attempt to reconcile the three (Dulaney Towers Maintenance Corp. v. O’Brey (1980), 46 Md. App. 464, 465-66, 418 A.2d 1233, 1235.) We must construe the declaration, bylaws and statute as a whole. (See Tiffany Plaza Condominium Association, Inc. v. Spencer (Fla. App. 1982), 416 So. 2d 823, 826.) Looking first to our condominium enabling statute, we see no reason to treat the bylaws as inferior to the declaration. The Condominium Property Act sometimes refers to the declaration or the bylaws as the place where a particular provision may be found. (See, e.g., Ill. Rev. Stat. 1977, ch. 30, par. 315.) In addition, the Act provides that the administration of every property shall be governed by bylaws. (Ill. Rev. Stat. 1977, ch. 30, par. 317.) We believe that the exercise of a right of first refusal is, at least in some respects, an administrative matter. Thus, we see no reason why the declaration and bylaws here should not be read together to require an affirmative two-thirds vote of the total ownership of the common elements before the board can exercise its right of first refusal in order to purchase a unit on behalf of all remaining unit owners. We believe that the “on behalf of” language in the declaration presupposes some method for determining how the members want the board to act on their behalf. In this case, the method implicit in the declaration is made explicit in the bylaws which require a two-thirds vote. We therefore conclude that under the declaration and the bylaws here, the two-thirds vote requirement applies to the association’s exercise of the right of first refusal.

Having determined that under the declaration and bylaws here the two-thirds vote requirement applies to the exercise of a right of first refusal, we next address plaintiff’s argument that her complaint stated a cause of action for violation of the bylaws. Specifically, plaintiff maintains that the declaration and the bylaws delineate the scope of the board’s authority and that each board member “has a fiduciary duty to implement the will of the members of the association without exceeding its bounds.” It is plaintiff’s contention that by alleging her membership in the association and the board’s failure to comply with the bylaws, she stated a cause of action based upon defendants’ breach of a fiduciary duty owed to her as a member. We agree.

A fiduciary relationship exists where there is special confidence reposed in one who, in equity and good conscience, is bound to act in good faith with due regard to the interests of the other. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 72, 424 N.E.2d 1253, 1259.) We believe that all condominium association officers and board members become fiduciaries to some degree when they take office. (See P. Rohan and M. Reskin, Condominium Law and Practice sec. 10A.06 (1982); Hyatt & Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L. Rev. 915 (1976).) Because the association officers and board members owe a fiduciary or quasi-fiduciary duty to the members of the association, they must act in a manner reasonably related to the exercise of that duty, and the failure to do so will result in liability not only for the association but also for the individuals themselves. (See Hyatt & Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L. Rev. 915, 946 (1976).) We believe that a board’s proper exercise of its fiduciary or quasi-fiduciary duty requires strict compliance with the condominium declaration and bylaws. Therefore, when the declaration or bylaws provide procedures to govern board action, those procedures should be followed. (See Bramson v. Beau Monde, Inc. (Fla. App. 1982), 415 So. 2d 761 (where the court held that since the board of directors of a condominium association did not comply with the requirements of the condominium declaration, the association’s acquisition of property was ultra vires and therefore void); cf. St. Francis Courts Condominium Association v. Investors Real Estate (1982), 104 Ill. App. 3d 663, 669, 432 N.E.2d 1274, 1277 (where the court held that an attempted amendment to a condominium declaration was ineffective because the procedures set forth in the condominium act and the condominium declaration were not followed).) Here, by virtue of the declaration and bylaws, the board owed a duty to all members of the association to obtain a two-thirds affirmative vote of the ownership of the common elements before exercising a right of first refusal. Since plaintiff alleged that defendants exercised a right of first refusal without first obtaining the requisite affirmative vote of the ownership, we conclude that plaintiff stated a cause of action for breach of a fiduciary duty and that count I of her amended complaint was improperly dismissed.

We next address plaintiff’s contention that count II of her amended complaint stated a cause of action for violation of the Chicago condominium ordinance, which prohibits discrimination with regard to the purchase and lease of condominium units. (Municipal Code of Chicago 1978, ch. 100.2, par. 100.2 — 4.) Plaintiff alleged that the board exercised its right of first refusal because plaintiff is an unmarried female who would occupy unit 21F with her children. Thus, plaintiff seeks damages for discrimination on the basis of her sex and her marital status. Discrimination on either ground is explicitly prohibited by the ordinance. We therefore believe that plaintiff’s allegations bring her within the scope of the ordinance.

Defendants maintain that plaintiff failed to state a cause of action under the ordinance because defendants did not refuse to allow plaintiff to purchase unit 21F but merely prevented the seller from selling unit 21F to plaintiff by exercising the right of first refusal. We find no merit in defendant’s contention. The antidiscrimination section of the ordinance provides: “No person shall be denied the right to purchase or lease a unit because of race, religion, sex, sexual preference, marital status or national origin.” (Municipal Code of Chicago 1978, ch. 100.2, par. 100.2 — 4.) Plainly, by exercising a right of first refusal, a condominium association prevents a prospective purchaser from buying a unit. We therefore believe that if a right of first refusal is exercised so that a prospective purchaser is unable to purchase a unit because of his or her race, religion, sex, sexual preference, marital status or national origin, the ordinance has been violated.

Having concluded that the ordinance would apply to the right of first refusal if it was exercised on the basis of plaintiff’s sex or marital status, we next consider whether plaintiff had a cause of action for damages under the ordinance. The ordinance provides:

“*** The rights, obligations and remedies set forth in this chapter shall be cumulative and in addition to any others available at law or in equity. The Department or any prospective purchaser, purchaser or owner of a unit may seek compliance of any provision of this chapter, provided, however, that only the Department may enforce the provisions of Section 100.2— 11 [providing for certain penalties for violations]. In any action brought to enforce any provision of this chapter except Section 100.2— 11 the prevailing plaintiff shall be entitled to recover, in addition to any other remedy available, his reasonable attorney fees. ***” (Municipal Code of Chicago 1978, ch. 100.2, par. 100.2- 10.)

We believe that the broad provision that the remedies under the ordinance be cumulative and in addition to other remedies reflects a legislative intent that actions for damages be available for violations of any section of the ordinance, including the antidiscrimination section. (Cf. Marshall v. Kansas City (Mo. 1962), 355 S.W.2d 877, 882-83 (where the court noted that a Kansas City ordinance clearly disavowed “any intent or purpose to create an action for damages by expressly providing that the ordinance ‘shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination’ ”).) We conclude that plaintiff adequately stated a cause of action in count II of the amended complaint, and therefore count II was improperly dismissed.

We next address plaintiffs contention that count III of the amended complaint stated a cause of action for wilful and wanton misconduct. In count III, which was directed against all defendants except the association, plaintiff realleged most of count I and added that the defendants acted with wilful and wanton disregard for the bylaws of the condominium association. Defendants argue that since the allegations are identical to those in count I, “the dichotomy in conduct required for the distinction between charges of negligence and wilful and wanton misconduct” has not been met. We disagree.

In order to withstand a motion to dismiss, a plaintiff need not set forth evidence which may well be derived from discovery subsequent to the filing of the complaint. (See Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 459, 438 N.E.2d 1194, 1196.) Since the determination of whether conduct was wilful and wanton requires close scrutiny of the facts of each case, mirror allegations of wilful and wanton misconduct may be sufficient to state a cause of action. (See O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 468-69, 415 N.E.2d 1015, 1018; Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 458-59, 438 N.E.2d 1194, 1196.) No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) We believe that in count III plaintiff sufficiently described the actions of the board members and sufficiently informed them of her claim that the actions were intentional or taken with reckless disregard of her rights. We conclude that plaintiff adequately alleged that the board members were guilty of wilful and wanton misconduct.

However, as to defendants Addis and Eugene Matanky & Associates Management Corp., we believe that count III was properly dismissed. The factual allegations in count III, accomplished through the incorporation of most of the factual allegations of count I, do not refer to these defendants or to any action taken by them. These defendants and their acts were only described in count II of the complaint, and count II was not incorporated in count III. We cannot overlook this defect in count III by referring to other counts not expressly incorporated therein. (See Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 458, 438 N.E.2d 1194, 1196.) Plaintiff requests as an alternative to dismissal that she be granted leave to amend her complaint, but she does not specify any basis for amendment, and we therefore decline to exercise our discretion to allow count III to be amended under Supreme Court Rule 366(a)(1). 87 Ill. 2d R. 366(a)(1).

For the foregoing reasons, that portion of the judgment dismissing count III of plaintiff’s amended complaint against defendants Addis and Eugene Matanky & Associates Management Corp. is affirmed. That portion of the judgment dismissing counts I and II and dismissing count III against defendant board members is reversed, and the cause is remanded for further proceedings.

Affirmed in part and reversed and remanded in part.

McGILLICUDDY, and WHITE, JJ., concur.

      Although plaintiff states in her brief that defendants violated the Chicago Fair Housing Ordinance (Municipal Code of Chicago 1974, ch. 198, par. 198.7B — 3), we only consider the antidiscrimination section of Chicago’s condominium ordinance, for that was the only ordinance set forth in plaintiffs amended complaint.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE DAVIS, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2444
    Opinion filed May 10, 1983.

      James J. Doherty, Public Defender, of Chicago (Robert D. Glick, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O’Malley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

In a jury trial, defendant, Wayne Davis, was found guilty of rape, deviate sexual assault, armed robbery and unlawful restraint. The trial court held that the deviate sexual assault conviction merged into the rape conviction and sentenced defendant to serve 30 years in the Illinois Department of Corrections for rape and 20 years for armed robbery, the sentences to run concurrently On appeal, defendant contends that he was deprived of his statutory right to a speedy trial and his constitutional right to counsel of his own choice. For the reasons which follow, we reverse defendant’s convictions and remand the cause for a new trial.

I

Defendant first contends that he was denied his statutory right to a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5.) The speedy trial statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) Any delay occasioned by the defendant temporarily tolls, for the time of the delay, the 120-day period within which defendant must be tried. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f); People v. Williams (1981), 94 Ill. App. 3d 241, 247, 418 N.E.2d 840.) No other delay, whether caused by the State or by the court, will toll the running of the statutory period. People v. Neideffer (1975), 25 Ill. App. 3d 819, 822, 324 N.E.2d 46.

The record discloses that defendant was arrested on June 23, 1980, for offenses which were alleged to have taken place on June 12, 1980. Defendant was indicted on July 2, 1980 (indictment No. 80— 4507) and, on July 15, 1980, his case was assigned to Judge Thomas J. Maloney for trial. Six days later, on July 21, 1980, defendant filed a motion for substitution of judges (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a)), which Judge Maloney denied on August 12,1980.

Defendant’s speedy-trial argument focuses on the 237-day period from August 12, 1980, the date on which Judge Maloney denied defendant’s motion for substitution, to April 6, 1981, when, pursuant to a supervisory order issued by the Illinois Supreme Court on March 26, 1981, Judge Maloney transferred defendant’s case to Judge Arthur J. Cieslik. Defendant contends that Judge Maloney erred in denying his motion for substitution and that, as a result, all of Judge Maloney’s subsequent actions in the case, including the continuances he granted, were void. Defendant submits that if the continuances were unauthorized, then none of the delays during this 237-day period properly may be attributed to him. We cannot agree.

Where a motion for substitution of judges is filed within 10 days after the case has been placed on the judge’s trial call, the right to substitution is absolute. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a); People v. Peter (1973), 55 Ill. 2d 443, 458, 303 N.E.2d 398.) Upon the filing of a motion which is in compliance with the statute, the trial judge loses all power and authority over the case except to make the necessary orders to effectuate the substitution, and denial of the motion constitutes reversible error. (People v. McGlothen (1962), 26 Ill. 2d 392, 394, 186 N.E.2d 319; People v. Kostos (1961), 21 Ill. 2d 451, 455, 173 N.E.2d 469.) If a substitution motion is erroneously denied, all proceedings subsequent to the order of denial are void. (People v. Thomas (1978), 58 Ill. App. 3d 460, 463, 374 N.E.2d 795; People v. Ethridge (1966), 78 Ill. App. 2d 299, 304, 223 N.E.2d 437.) In our judgment, it is unnecessary to decide whether Judge Maloney improperly denied defendant’s motion for substitution on August 12, 1980, because it is clear from our examination of the record that defendant was not ready for trial before any judge between August 12, 1980, and April 6,1981.

In determining whether the 120-day period has been tolled, the proper test is whether an act of defendant in fact caused or contributed to the delay. (People v. Shields (1974), 58 Ill. 2d 202, 204, 317 N.E.2d 529.) Furthermore, “[a] reviewing court must carefully examine the surrounding facts and circumstances to prevent a mockery of justice either by technical evasion of the right to a speedy trial by the State, or by discharge of a defendant by a delay in fact caused by him.” People v. Bevis (1980), 89 Ill. App. 3d 344, 346, 411 N.E.2d 1123.

In the instant case, Judge Maloney charged defendant with virtually all of the continuances which he granted between August 12, 1980, and April 6, 1981, because defense counsel repeatedly stated that they were not ready for trial. Although counsel did object to charging defendant with several of these continuances on the ground that defendant was not properly in Judge Maloney’s courtroom, they never informed Judge Maloney that defendant was prepared immediately to proceed to trial before another judge. Nothing in this record supports defendant’s argument that the delay in bringing him to trial was caused by the denial of his motion for substitution of judges. Rather, the delay occurred because defendant was not ready for trial. Thus, since defendant’s own lack of preparedness prevented his being tried at an earlier date, we conclude that his right to a speedy trial was not violated.

II

Defendant next contends that he was denied his constitutional right to counsel of his own choice when Judge Cieslik removed Judith Halprin as his counsel and appointed the public defender in her place. The following facts are pertinent to our analysis of this issue.

Shortly after July 15, 1980, defendant’s family retained Rick Halprin and Judith Halprin to represent him. On April 7, 1981, Judith Halprin moved to withdraw as counsel because she had not received her fee. Judge Cieslik denied this motion but appointed Halprin to represent defendant because she had been serving as his counsel for the previous nine months.

Prior to trial, Halprin persisted in rearguing motions on which Judge Cieslik had already ruled. When Judge Cieslik threatened to hold her in contempt if she continued with this conduct, Halprin accused him of “intimidating” her. Before the parties began selecting a jury on July 15, 1981, Judge Cieslik denied Halprin’s motion for leave to question prospective jurors during voir dire. During jury selection, Halprin repeatedly renewed her motion, stating that the judge’s questioning of the prospective jurors did not permit her to evaluate properly their qualifications to serve as jurors.

Judge Cieslik admonished Halprin to make no references which would “pollute this jury” and ordered her to raise only in sidebar discussions matters which did not concern the jury. Halprin then moved to withdraw as counsel because of “intimidation.” The court denied this motion. When Halprin continued to complain of her inability under the circumstances to select jurors, Judge Cieslik warned her that if she made one more similar comment in front of the jury he would declare a mistrial and hold her in contempt. After the next two jurors were tendered to her, Halprin said, “Then with our apologies to the jury based on our necessarily limited information, [defendant] will excuse Mr. Keane and Mr. Weinstein.” Judge Cieslik excused the two jurors, immediately called a conference in his chambers and cited Halprin for contempt because she had ignored his repeated warnings. Thereupon the case was continued to the following day, July 16, 1981, at which time Judge Cieslik stated that he was granting Halprin’s earlier motion to withdraw and removed her as defendant’s attorney. The court then fined Halprin $1,000 for contempt of court. In imposing this punishment, Judge Cieslik commented that Halprin had breached her duty to the court on several occasions and that he had endured “much abuse” from her.

Judge Cieslik again informed Halprin that he was removing her from the case. Halprin objected on the ground that her motion to withdraw was not a “standing request” but had been made only in response to the court’s earlier rulings. When Halprin disclaimed any intention of requesting leave to withdraw, Judge Cieslik replied that he was going to remove her because she not “competent enough” and did not have “enough experience” to conduct herself properly and to provide defendant with an adequate defense. Although Halprin argued that only the defendant could terminate the attorney-client relationship, Judge Cieslik responded that since he had appointed Halprin, he had the authority to remove her once he determined that she could not “properly defend this defendant, ***.” Judge Cieslik informed defendant that he had removed Halprin and was appointing the public defender in her place. Defendant acknowledged that he understood the court’s actions and did not offer any objections. Judge Cieslik then declared a mistrial and continued the case to August 25, 1981.

On August 25, 1981, defendant asked Judge Cieslik to reappoint Halprin because the public defender did not have the “best intentions in my case.” Judge Cieslik denied this request, stating that the court had appointed her and had “the right to revoke that appointment at any time it sees fit because of the conduct of the attorney.” Defendant replied that if the court would not reappoint Halprin, he wanted to defend himself. Judge Cieslik ordered two assistant public defenders to serve as defendant’s advisers but warned defendant that all decisions, questions, arguments and objections had to be made by the defendant himself. Defendant said that he understood and desired to represent himself. On August 26, 1981, trial commenced with defendant proceeding pro se.

The right to counsel guaranteed by the sixth and fourteenth amendments of the Federal Constitution, by article I, section 8 of the Illinois Constitution, and by section 113 — 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3) includes the right to be represented by counsel of one’s own choice. (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116.) Defendant contends that this right was violated here when the trial court removed Halprin as defendant’s court-appointed attorney.

In the instant case, Judge Cieslik expressed the view that since Halprin was no longer serving as retained counsel but had been appointed by the court to represent defendant, he therefore had the authority to remove her for incompetence even over the objections of both Halprin and the defendant. To subscribe to this view would, in our judgment, give rise to an impermissible distinction between indigent and nonindigent defendants:

“*** [W]e must consider whether a court-appointed counsel may be dismissed, over the defendant’s objection, in circumstances in which a retained counsel could not be removed. A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary; it involves not just the [casual] assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. [Citation.] It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.” Smith v. Superior Court (1968), 68 Cal. 2d 547, 561-62, 440 P.2d 65, 74, 68 Cal. Rptr. 1, 10. Accord, McKinnon v. State (Alaska 1974), 526 P.2d 18, 22; Harling v. United States (D.C. App. 1978), 387 A.2d 1101; English v. State (1969), 8 Md. App. 330, 336-37, 259 A.2d 822, 826.

We agree with the rationale of these cases and believe that for purposes of removal by the trial court, a court-appointed attorney may not be treated differently than privately retained counsel.

In the instant case, Judge Cieslik removed Halprin not, as the State has argued in its brief, as a sanction for contempt, but because he concluded that she was inexperienced and could not competently conduct a defense. “The defendant’s constitutional right to counsel entitles him both to effective assistance by counsel and to counsel of his own choosing. Typically, both corollaries coexist symbiotically.” (People v. Johnson (1979), 75 Ill. 2d 180, 185, 387 N.E.2d 688.) Here, however, where Judge Cieslik had determined that defendant’s choice of counsel was not providing defendant with competent representation, one had to be sacrificed. The trial judge could not force the defendant to accept counsel other than counsel of defendant’s own choosing. (People v. Johnson (1979), 75 Ill. 2d 180, 185.) Defendant’s right to counsel of his own choice required that he be allowed to make a voluntary, knowing and understanding waiver of the right to competent counsel in order to receive the representation of his choice. People v. Johnson (1979), 75 Ill. 2d 180, 185-86.

In Johnson, the trial judge concluded that defendant’s retained counsel was incompetent. The judge called both defendant and his attorney into chambers and, on the record, he advised defendant of the reasons why he believed defendant’s counsel was incompetent; that defendant had a right to counsel of his own choice and, if defendant could not afford an attorney, to have one appointed for him by the court; that it was not feasible to call in standby counsel or assistant counsel; that defendant could continue with his present counsel but if he did, defendant would be deemed to have waived his right thereafter to assert incompetency of his counsel; and that if defendant wished to obtain new counsel, the judge would declare a mistrial so that defendant could obtain such new counsel. The trial judge then determined that defendant understood his rights and his alternatives. The defendant elected to proceed with his original attorney. The Illinois Supreme Court approved this procedure and held that defendant had voluntarily, knowingly and intelligently waived his right to competent counsel. People v. Johnson (1979), 75 Ill. 2d 180, 183-87.

In the instant case, had Judge Cieslik followed a procedure similar to that approved by the supreme court in Johnson, defendant could have made a voluntary, knowing and intelligent choice either to proceed with Halprin and waive the issue of competent counsel or to terminate his relationship with her and seek new counsel. Whatever choice defendant may have made, he could not thereafter reasonably have complained that he had been denied his constitutional right to the assistance of counsel. However, by virtue of the trial court’s actions in this case, defendant was denied the opportunity of making this choice. Under these circumstances, we believe the court erred in removing Halprin as defendant’s court-appointed counsel. Accordingly, we reverse defendant’s convictions and remand the cause to the circuit court of Cook County for a new trial.

Reversed and remanded.

DOWNING, P.J., and HARTMAN, J., concur.

      The mittimus reflects that defendant also received concurrent 30-year sentences for both deviate sexual assault and unlawful restraint. No sentence for unlawful restraint appears in the transcript of the sentencing hearing.

      Since the filing of a motion for substitution of judges temporarily suspends the 120-day period (People v. McClure (1979), 75 Ill. App. 3d 566, 570-71, 394 N.E.2d 833), defendant has not added to this 237-day period the 22 days between July 21, 1980, the date on which the substitution motion was filed, and August 12, 1980, when the motion was denied.

      Because of an illness, Rick Halprin was not able to represent defendant at trial.

      Although no appeal of the contempt citation is before us, we express our strong disapproval of tactics employed by any trial counsel that tend to impede or disrupt orderly court proceedings.

      Judge Cieslik removed Halprin before he determined what sanction he would impose on the contempt citation. After he fined her, he added, “*** and as I had indicated you will also be discharged of your duties and obligations to this defendant because it’s the opinion of this court, for purposes of the record, that you are not competent enough and you do not have enough experience to properly conduct yourself and to give this defendant a proper defense in this case.”
      On August 25, 1981, Judge Cieslik informed defendant that he had removed Halprin because “*** her conduct was such that I felt you could not get a fair trial, ***.” In urging defendant to accept the appointment of the public defender’s office, the judge told defendant that if “I felt that either one of these gentlemen could not properly represent you, I would do the same thing I did with reference to Miss Halprin.”
      On August 26, 1981, Judge Cieslik stated: “I found her [Ms. Halprin] in contempt of this court and I excused her of her obligations because I felt you deserved better representation than she was giving you.” “*** [Y]our case was *** of such a magnitude that you deserved something better.”
      In open court, Judge Cieslik explained to defendant’s uncle on August 26, 1981, that “*** after I saw her in operation and I questioned her on how much experience she had with reference to this matter, it was my feeling, and I maintain that feeling, that she was not qualified to handle the defense of your nephew.”

      The State’s reliance on People v. Lewis (1981), 88 Ill. 2d 129, 160, 430 N.E.2d 1346, and People v. Cox (1961), 22 Ill. 2d 534, 537, 177 N.E.2d 211, for the proposition that an indigent defendant does not have an unqualified right to counsel of his own choice is misplaced. In each case, the supreme court rejected defendant’s claim that he had the right to select the attorney to be appointed for him by the court. (People v. Lewis (1981), 88 Ill. 2d 129, 160-61; People v. Cox (1961), 22 Ill. 2d 534, 536-37.) That is not the right defendant asserts here. Defendant sought only to keep the attorney the court previously had appointed for him. In Smith v. Superior Court (1968), 68 Cal. 2d 547, 561-62, 440 P.2d 65, 74, 68 Cal. Rptr. 1, 10, the Supreme Court of California held that the “general principle that an indigent defendant who requests counsel must be satisfied with the court’s selection and is not entitled to demand that a different counsel be appointed,” was “obviously inapplicable” to the situation where the attorney who had been removed “was himself the counsel appointed by the court *** to represent [defendant] in these proceedings, and [defendant] is demanding not to change that appointment but only to enforce it.”

        People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767, is likewise inapposite. In Spurlark, the appellate court held that the trial court was justified in appointing an attorney to represent defendant over defendant’s objections where his retained attorney was continuously unavailable for trial for more than two years. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 198.) Cases decided both before and after Spurlark have been concerned with a defendant using his right to counsel of his choice to avoid going to trial. (See People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116; People v. Washington (1968), 41 Ill. 2d 16, 20, 241 N.E.2d 425; People v. Guice (1979), 83 Ill. App. 3d 914, 918, 404 N.E.2d 261, where the court found that defendant had no intention of obtaining counsel and was attempting to use her right to counsel “as a tactical device to prevent her case from ever being brought to trial.”) None of these cases is applicable here.


author: PRESIDING JUSTICE WILSON

text:
    ROBERT M. WOLTERS et al., Plaintiffs-Appellants, v. J. THOMAS JOHNSON, Director of Revenue, et al., Defendants-Appellees.
    First District (5th Division)
    No. 82-0199
    Opinion filed May 6, 1983.

      Robert M. Wolters, of Chicago, for appellants, pro se.

    Tyrone C. Fahner, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiffs, Robert M. and Eleanor Lee Wolters, husband and wife, filed a complaint in the circuit court of Cook County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) to obtain judicial review of a decision rendered by the Illinois Department of Revenue (Department), affirming the denial of refunds to plaintiffs as joint taxpayers for State income tax paid on money disbursed as alimony in tax years commencing after December 31, 1973, through December 31, 1976. The circuit court affirmed the Department’s decision. Plaintiffs’ timely appeal followed. On appeal, plaintiffs contend that: (1) the money disbursed as alimony was received by them as a nontaxable trust; (2) inclusion of alimony in both payor’s (ex-husband) and payee’s (ex-wife) taxable incomes constitutes double taxation; and (3) payment of State income tax on those earnings used to meet alimony obligations is inequitable. For the reasons that follow, we affirm the circuit court’s decision.

Pursuant to the divorce settlement agreement entered into by and between plaintiff-husband and his former wife, Alice G. Wolters, dated May 15, 1973, plaintiff-husband agreed to make bimonthly payments of alimony and child support to his former wife. In tax years commencing after December 31, 1973, through December 31, 1976, plaintiffs deducted alimony paid to Alice Wolters from their joint State income tax returns. Each year, the Department refused to process the returns as filed and treated plaintiffs’ alimony deduction as a mathematical error. As a result, plaintiffs filed claims for refund contending that, pursuant to section 2 — 203(a)(2)(I) of the Illinois Income Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 1 — 101 et seq.) (the Income Tax Act), and article IX, section 3(a) of the Illinois Constitution, they had a right to deduct the husband’s alimony payments from Illinois base income. The Department denied the claims for refund and plaintiffs’ timely protests followed.

Opinion

The first issue before this court is whether the money disbursed as alimony was received by plaintiffs as trustees of a nontaxable trust or whether it was received by them as taxable income.

In support of their position that the money paid as alimony was actually the res of a nontaxable trust, plaintiffs cite Hanley v. Kusper (1975), 61 Ill. 2d 452, 337 N.E.2d 1, for the proposition that the creation of a trust to avoid income taxes is sanctioned by the Illinois Supreme Court. By relying on Hanley, plaintiffs have overlooked the fact that the existence of the trust itself must be established before the purpose of the trust becomes relevant. It is our opinion that plaintiffs have failed to establish this prerequisite.

It is unclear from the record whether plaintiffs were pleading the existence of an express trust or an implied trust. Thus, we will address the requirements of each to the extent necessary. An express oral trust of personal property is valid if the acts or words relied on to create the trust are so unequivocal as to lead but to one conclusion. If the evidence is doubtful or capable of reasonable explanation upon any other theory, it is not sufficient to establish an express oral trust. (Price v. State (1979), 79 Ill. App. 3d 143, 148-49, 398 N.E.2d 365.) In the pending case, plaintiffs present the following argument for the existence of an express oral trust:

“The decree of divorce between taxpayer, Robert M. Wolters, and his ex-wife required taxpayer to pay stated sums to his ex-wife from money that taxpayer was to receive in the future. Such money was earmarked for the ex-wife by the court, and taxpayer had no beneficial interest whatsoever in it. It was therefore a trust fund, and not properly taxed as income by the Department of Revenue.”

It is our opinion that the aforementioned argument consists of nothing more than a series of unsubstantiated conclusory statements and that the terms of the settlement agreement are readily capable of an alternative explanation. Although plaintiff-husband has a legal obligation to pay stated sums to his former wife as alimony and support, the agreement does not mandate that this obligation be met by future income. In fact, plaintiffs admit that the obligation to pay exists whether or not plaintiff-husband is receiving any income at all. Thus, the obligation can reasonably be met by drawing on accumulated savings, selling stock or other valuable property, procuring loans, or even by drawing on the income or savings of plaintiff-husband’s current wife. Moreover, neither the divorce court nor plaintiffs established separate bank accounts or took any other action to “earmark” particular funds for payment as alimony. Thus, we find that the acts and words relied on by plaintiffs to create a trust do not unequivocally demonstrate the requisite intent.

Similarly, plaintiffs have also failed to establish the existence of an implied trust, either as a resulting trust or a constructive trust. By definition, a resulting trust is imposed by operation of law to effectuate the intent of the parties. (In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 943, 441 N.E.2d 158.) As discussed, plaintiffs have not demonstrated that the requisite intent existed. Finally, a constructive trust arises when there is a breach of a fiduciary relationship or when fraud is proved. (Williams v. Teachers Insurance & Annuity Association (1973), 15 Ill. App. 3d 542, 546, 304 N.E.2d 656.) Clearly, neither element is at issue in the pending case.

Furthermore, even if all elements necessary to create a trust had been established by plaintiffs, the corpus of the trust would not have escaped taxation as income to plaintiffs. The rule that income is not taxable until realized has never meant that a taxpayer who has fully enjoyed the benefit of the economic gain represented by his right to receive income, can escape taxation because he did not actually receive the money himself. (United States v. Kirby Lumber Co. (1931), 284 U.S. 1, 76 L. Ed. 131, 52 S. Ct. 4 (taxpayer liable for income tax on earnings paid directly to his creditors); Corliss v. Bowers (1930), 281 U.S. 376, 74 L. Ed. 916, 50 S. Ct. 336 (taxpayer-settlor liable for income earned by a revocable trust even though income was paid directly to the beneficiaries).) In the landmark decision, Helvering v. Horst (1940), 311 U.S. 112, 85 L. Ed. 75, 61 S. Ct. 144, the United States Supreme Court expressed the underlying rationale behind Kirby and Corliss:

“The taxpayer has equally enjoyed the fruits of his labor or investment and obtained the satisfaction of his desires whether he collects and uses the income to procure those satisfactions, or whether he disposes of his right to collect it as the means of procuring them.
* * *
The power to dispose of income is the equivalent of ownership of it.” 311 U.S. 112, 117-18, 85 L. Ed. 75, 78-79, 61 S. Ct. 144, 147.

Thus, the key factors in the determination of income tax liability on earnings are control over the money and readily realizable economic benefit derived from that control. (Rutkin v. United States (1952), 343 U.S. 130, 137, 96 L. Ed. 833, 838, 72 S. Ct. 571, 575.) In the case at bar, plaintiffs clearly had control over the distribution of their earnings. Under their direction, a portion of their earnings was paid to Alice Wolters. Although plaintiff-husband was legally obligated to make those payments, the choice was still his. He alone exercised control over his earnings and derived the immediate benefit of not being penalized for failure to meet that obligation. In that respect, the alimony obligation is no different than any other contractual obligation. For example, when a mortgage payment is automatically paid to the mortgagor every month out of funds in the mortgagee’s bank account, those earnings used to pay the mortgage do not escape income tax liability to the mortgagee. The mortgagee may not have actually seen the funds, he may not even have written the mortgage check, but he does have ultimate control over the funds and could stop making mortgage payments any time. Accordingly, we conclude that because plaintiffs had control over their earnings and derived an economic benefit from that control, their earnings were taxable as realized income.

In the alternative, plaintiffs argue that if the money paid by them as alimony is considered to be income, it is not properly taxable as income to both plaintiff-husband and his former wife because to do so would result in double taxation, which is expressly prohibited by article IX, section 3(a) of the Illinois Constitution. In particular, plaintiffs focus on the word “individuals” as it appears in section 3(a) and argue that it refers to plaintiff-husband and his former wife collectively, not singly. Therefore, imposition of an income tax on each of them for the selfsame income (alimony) is double taxation on individuals.

It is a well-established rule of construction that words in a statute may be defined by common usage, by previous judicial construction, and by legislative intent. (People v. Williams (1967), 79 Ill. App. 2d 56, 59-60, 222 N.E.2d 915.) However, the controlling element must be the meaning intended by the lawmakers. (Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489, 494, 140 N.E.2d 687.) Further, once the Illinois Supreme Court has construed an act of the legislature, that construction becomes, in effect, a part of that law and any change in the construction is a matter for the legislature. Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456, 283 N.E.2d 465.

In the pending case, we find evidence of legislative intent as well as prior judicial construction determinative of the meaning of “individuals” as it appears in article IX, section 3(a) of the Illinois Constitution. In Lake Shore Auto Parts Co. v. Korzen (1971), 49 Ill. 2d 137, 273 N.E.2d 592, rev’d on other grounds sub. nom Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001, the Illinois Supreme Court addressed the issues of construction and validity of article IX — A of the constitution, which abolished the personal property tax by valuation levied against individuals. In construing the phrase “as to individuals,” the supreme court adopted the meaning set forth in Senate Joint Resolution No. 67, which stated:

“SENATE JOINT RESOLUTION NO. 67 RESOLVED BY THE SENATE OF THE SEVENTY-SIXTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, THE HOUSE OF REPRESENTATIVES CONCURRING HEREIN, that, in adopting Joint Resolution No. 30, which submits to the electors of this State a constitutional amendment prohibiting the taxation of personal property by valuation as to individuals, it was the intention of this General Assembly to abolish the ad valorem taxation of personal property owned by a natural person or by two or more natural persons, and that, by the use of the phrase ‘as to individuals,’ this General Assembly intended to mean a natural person, or two or more natural persons as joint tenants or tenants in common.” 49 Ill. 2d 137, 140.

While we recognize that article IX — A concerned ad valorem taxation of personal property instead of income tax, we find the legislature’s intent that “individuals” refers to one natural person or two or more natural persons with joint legal interests and liabilities applicable to the construction of the term in article IX, section 3(a). Under the law, there are certain transactions by which the obligations and privileges of two or more single persons merge into one collective whole, resulting in joint interests and liabilities. Joint tenancy is, of course, one such transaction and joint tax returns are another. In both, the individuals comprising the joint relationship take on the liabilities of the whole. By contrast, two or more natural persons who have not been legally “joined” remain singly obligated. In the case at bar, plaintiff-husband and his former wife severed their joint relationship through divorce, and, therefore, are to be treated as individual natural persons, with separate and distinct obligations under the law. They are no longer a collective unit as plaintiffs would have us believe.

In making our determination to adopt the Lake Shore court’s construction of “individuals,” we rely on several presumptions which historically have been used by the judiciary as aids in construction: (1) the legislature intended all provisions of a particular law to be construed as a whole (see Highcrest Management Co. v. Village of Woodridge (1978), 60 Ill. App. 3d 763, 766-67, 377 N.E.2d 315); (2) the several provisions of a law are to be consistent and harmonious (People ex rel. Community High School District No. 281 v. Hupe (1954), 2 Ill. 2d 434, 448, 118 N.E.2d 328); (3) the legislature intended to enact an effective body of law (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 117, 390 N.E.2d 835); and (4) the legislature did not intend to enact a law which has unjust or absurd consequences (People v. Bournes (1977), 55 Ill. App. 3d 237, 240, 370 N.E.2d 1230).

First, presuming that the legislature intended the constitution to be read as a whole and that all parts thereof are to be harmonious, we find that the legislature’s expressly stated meaning for the commonly used term, “individuals” as it appeared in article IX — A must be applied to all provisions of the constitution. Thus, the term logically and appropriately means a single natural person or two or more natural persons with joint interests and liabilities.

Second, presuming that the legislature intended to enact an effective law, it would not have intended plaintiffs’ literal meaning of “individuals” as it appears in the constitutional provision which serves as the Income Tax Act’s enabling clause. For example, section 2 — 201(a) of the Income Tax Act states, in part, “A tax measured by net income is hereby imposed on every individual *** for each taxable year *** on the privilege of earning or receiving income in or as a resident of this State.” (Ill. Rev. Stat. 1979, ch. 120, par. 2 — 201(a).) Pursuant to the definition of “income” set forth by the United States Supreme Court in Helvering v. Horst (1940), 311 U.S. 112, 117-18, 85 L. Ed. 75, 79, 61 S. Ct. 144, 147, the money received by plaintiff-husband and then paid to his former wife as alimony was income to both recipients, individually. Once alimony is classified as income, it falls within the scope of section 2 — 201(a) of the Income Tax Act and is taxable to “every individual” who receives it. The same dollars that are received as income to one individual and taxed as income do not escape further taxation when those same dollars again represent income to a subsequent individual. (See Welch v. Henry (1938), 305 U.S. 134, 83 L. Ed. 87, 59 S. Ct. 121 (the receipt of dividends by a corporation is an event which may constitutionally be taxed even though the corporate income which is their source has also been taxed).) As the foregoing illustrates, plaintiffs’ interpretation of “individuals” as used in the constitution’s enabling clause would create gross ambiguity and uncertainty in the Income Tax Act. Moreover, plaintiffs’ literal interpretation is directly contradictory to the general definitional provisions of the Income Tax Act, creating even further ambiguity. For example, section 15 — 1501(b)(1)(B) of the Income Tax Act states, in pertinent part:

“(b) Other definitions. (1) Words denoting number, gender, and so forth, when used in this Act, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof:
* * *
(B) Words importing the plural include the singular; ***.” m. Rev. Stat. 1979, ch. 120, par. 15-1501(b)(l)(B).

Finally, we presume that the legislature did not intend to enact a law which had unjust or absurd consequences. In this regard, we firmly believe that to adopt plaintiffs’ interpretation would result in an absurd and inequitable construction. For example, the sentence upon which plaintiffs focus also refers to corporations (plural in the statute). Thus, adopting plaintiffs’ rationale, if corporation A uses its taxable income to pay a debt owed to corporation B, the money received by corporation B cannot be taxed as income because it was already taxed as income to corporation A. Or, considered that the money paid to an individual’s doctor, lawyer, etc., from that individual’s income is not taxable to those recipients because it has already been taxed as income to the payor. Without question, such consequences can be characterized as unjust and absurd. Accordingly, we hold that the amount paid by plaintiff-husband and received by his former wife as alimony was properly taxable as income to each individual.

We next address plaintiffs’ contention that it is unfair to assess an income tax on money that simply passes through their hands. In this regard, plaintiffs further argue that money paid as alimony is not now taxed as income on State income tax forms and never should have been. Plaintiffs admit, however, that this change had nothing to do with a change in Illinois tax law. Rather, the mainstay of plaintiffs’ argument is the 1977 amendment to the Federal income tax forms (Pub. L. 94 — 455), which altered the computation of adjusted gross income for Federal tax purposes. Prior to 1977, alimony was an itemized deduction from adjusted gross income on Federal tax forms. For tax years commencing after December 31, 1976, alimony is a deduction from gross income. This change in Federal tax computation directly affected the State tax liability of Illinois taxpayers for two reasons: (1) adjusted gross income as it appears on Federal tax forms is the starting point upon which Illinois tax liability is computed, and (2) the Income Tax Act does not contain a deduction for alimony payments. Thus, prior to 1977, alimony was included in taxable income for Illinois income tax purposes even though it was not so included for Federal income tax purposes.

It is axiomatic that deductions and exemptions are privileges created by statute as a matter of legislative grace (Balla v. Department of Revenue (1981), 96 Ill. App. 3d 293, 295, 421 N.E.2d 236), and taxpayers are not entitled to deductions unless clearly allowed by statute. (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502, 513, 410 N.E.2d 828.) Moreover, to the extent that federally allowed deductions enter into the computation of State tax liability, they are relevant under the Income Tax Act. However, this interrelationship does not create a parallel set of Illinois deductions. 81 Ill. 2d 502, 510.

For these reasons, we concur with the often-cited legal principle that whether or not an exemption is to be permitted is a matter for legislative consideration, not judicial determination. (Kawitt v. Mahin (1971), 49 Ill. 2d 73, 77, 271 N.E.2d 35.) Accordingly, because the Income Tax Act did not provide for a deduction of alimony payments from income during the years in question, we affirm the order of the circuit court of Cook County.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Section 2 — 203(a)(2)(I) (Ill. Rev. Stat. 1979, ch. 120, par. 2 — 203(a)(2)(I)) provides for the following modification in adjusted gross income:
      “(I) An amount equal to all amounts included in such total which are exempt from taxation by this State either by reason of its Constitution or by reason of the Constitution, treaties or statutes of the United States.”

      Because we do not find any evidence of a written trust agreement, we will confine our discussion to an express oral trust.

      We find plaintiffs’ attempt to support their trust agreement by distinguishing between permanent alimony and temporary alimony ineffective. First, plaintiffs conclude, without legal support, that they are obligated to pay “permanent alimony.” Second, because permanent alimony has been defined as a portion of a husband’s estate (Walter v. Walter (1914), 189 Ill. App. 345, 348), plaintiffs conclude that it is not taxable because “[s]urely an estate is not taxable as current income.” Again, plaintiffs offer no legal support for yet another legal conclusion. Finally, after informing the court that “income” and “estate” impose differing degrees of tax liability, plaintiffs state that “the ‘estate’ from which the ex-wife was to be paid could be nothing more than future ‘income’ to be received by the ex-husband.” Thus, plaintiffs argue, future income should not be taxed as income because it is, in reality, part of the husband’s estate which, in our case, has been put in trust.

      Article IX, section 3(a) of the Illinois Constitution states in pertinent part:
      “A tax on or measured by income shall be at a non-graduated rate. At any one time there may be no more than one such tax imposed by the State for State purposes on individuals ***.”