author: JUSTICE WILSON

text:
    RICHARD W. BASTIAN, Plaintiff-Appellee, v. THE PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.-NORMAN C. BYTTOW, Plaintiff-Appellee, v. THE PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.-JOHN GREEN, Plaintiff-Ap-pellee, v. THE PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 81 — 0569, 81 — 0863, 81 — 1060 cons.
    Opinion filed August 13, 1982.

      Stanley Garber, of Chicago (Robert R. Retke and Mary K. Rochford, of counsel), for appellants.
    Ditowsky & Contorer, of Chicago (Kenneth K. Kitkowsky, of counsel), for appellee Richard W. Bastían.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Gerald B. Mullin, of counsel), for appellee Norman C. Byttow.
    Rick Allan White, of Chicago, for appellee John Green.
   JUSTICE WILSON

delivered the opinion of the court:

This is a consolidated appeal involving three city employees who were discharged for violating the city residence requirement. The circuit court reversed the Personnel Board’s decisions in the three cases, holding the ordinance to be unconstitutionally vague. Defendant Personnel Board appeals from that ruling.

The ordinance in issue is chapter 25, section 30 of the Chicago Municipal Code, which provides:

“All officers and employees in the classified civil service of the City shall be actual residents of the City. Any officer or employee in the classified civil service of the City who shall fail to comply with the provisions of this section shall be discharged from the service of the City in the manner provided by law.” (Emphasis added.)

The factual situation in each case varies, but we need not discuss the evidence at length because the sufficiency of evidence is not material to the constitutional issue raised. The three plaintiffs, Richard W. Bastían, Norman C. Byttow, and John Green, are similarly situated with respect to the administration of the ordinance and we will describe a composite of their circumstances to provide a backdrop for our legal analysis.

All three plaintiffs were long-term city employees at the time they were discharged for violating the ordinance. Bastían and Byttow had been firemen for over 20 years and Green had worked for the water department for over 25 years. All are legally separated from their wives. Plaintiffs own, in joint tenancy with their estranged wives, homes outside of Chicago where the wives and children live. Plaintiffs spend some time at the suburban homes, to visit their children or to make repairs, and they also pay some or all of the household expenses and child support or maintenance.

Plaintiffs also rent apartments in Chicago and are registered to vote there. During their hearings before the Board, Bastían and Byt-tow offered evidence of other substantial connections to Chicago and had numerous witnesses testify in corroboration. Green’s connection in Chicago appear weaker than those of the other two plaintiffs.

Defendants’ evidence on the charges against plaintiffs consisted of investigators’ reports involving surveillances of their homes and canvasses of their neighbors. In each case, the suburban homes and the Chicago apartments were watched on several different dates in the early mornings. Evidence indicated that on more than one occasion, each plaintiff was observed leaving the suburban home in a car at approximately 6 or 7 a.m., on days that he reported for work. Investigators also testified that they did not observe plaintiffs enter or leave their Chicago apartments on the occasions that the surveillance was conducted there. The investigators further testified as to the results of canvasses they conducted of the plaintiffs’ neighbors. Typically, the investigators would testify that one or more of the suburban neighbors recognized a photograph of the plaintiff but few if any persons from the Chicago apartment building could identify the photographs.

The Personnel Board in each case ruled, without specific findings, that the evidence supported the charges. After reviewing the proceedings the trial court reversed, holding that the ordinance was unconstitutionally vague. The court further held that if the reviewing court disagreed as to the constitutionality of the ordinance, the decisions were not against the manifest weight of the evidence.

Opinion

This case illustrates how the “plain meaning” of words can be the subject of extended and exhaustive debate. Defendants argue that the term “actual resident” has a common meaning, generally understood by the public (but apparently not so clear to lawyers). Additionally, they contend that the term “residence” has acquired a definite legal meaning through the case law, and therefore puts persons on notice of what is required. To support their position that the ordinance is not constitutionally vague they cite several cases which have construed “residence” as requiring that a person have a physical presence in a particular locale plus the intent to make that place his permanent abode. (Hughes v. Illinois Public Aid Com. (1954), 2 Ill. 2d 374, 380, 118 N.E.2d 14; Miller v. Police Board (1976), 38 Ill. App. 3d 894, 349 N.E.2d 544.) They further contend that the modifier “actual” strengthens the definition by eliminating the possibility of a constructive or sham residence.

Plaintiffs recognize that the above definition of residence, which equates with “domicile,” has been employed by the courts; however, they point out that the legal definition of residence varies according to its context. A person can only have one domicile, or permanent abode, at a time; however, he may have several residences. See United States v. Stabler (3d Cir. 1948), 169 F.2d 995, 998; Reese & Green, That Elusive Word, “Residence,” 6 Van. L. Rev. 561 (1953); see also Lister v. Hoover (7th Cir. 1981), 655 F.2d 123, 128 (“With apologies to Gertrude Stein, a resident is not a resident is not a resident. Resident status necessarily varies with the state program at issue.”).

The trial court, quoting from Black’s Law Dictionary, agreed with plaintiffs that residence and domicile, though closely related, have different legal meanings and that residence is susceptible to more than one meaning. Accordingly, the court struck down the ordinance for vagueness.

We are aware of no Illinois cases to date that have squarely-considered this constitutional challenge to the ordinance. The constitutional permissibility of requiring city employees to live in Chicago is not questioned; nor is it seriously doubted that the drafters of the ordinance intended for city employees to establish permanent homes in Chicago rather than sham residences. The due process infirmity of the ordinance, however, lies chiefly in its application; the lack of standards which allows for arbitrary and discriminatory enforcement. “[A] provision not objectionable on its face may be adjudged unconstitutional because of its effect and operation.” (16 Am. Jur. 2d Constitutional Law sec. 802, at 948 (1979).) “Not only the final purpose of the laws must be considered *** but the means of its administration ”3 (16 Am. Jur. 2d Constitutional Law sec. 228, at 665 (1979).) Although an agency’s interpretation of its rules must be accorded substantial discretion (Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App. 3d 971, 320 N.E.2d 371) the legislative body cannot give an agency “power in its absolute and unguided discretion to apply or withhold application of the law or to say to whom a law shall or shall not be applicable.” (People v. Tibbitts (1973), 56 Ill. 2d 56, 59, 305 N.E.2d 152, 155.) Therefore, due process is violated if a law is so vague and standardless as to- leave the public uncertain to what is and is not prohibited (In re Serna (1978), 67 Ill. App. 3d 406, 385 N.E.2d 87) or if it does not supply sufficient guidelines to the administrative body charged with its enforcement. People ex rel. Stamos v. Public Building Com. (1968), 40 Ill. 2d 164, 238 N.E.2d 390, 397.

With respect to the vagueness of the ordinance, we find persuasive Justice Simon’s reasoning in his dissenting opinion in Miller v. Police Board (1976), 38 Ill. App. 3d 894, 349 N.E.2d 544. In Miller the majority of the court upheld the Police Board’s decision to discharge the plaintiff, a 20-year veteran, for violating the residency ordinance (which at that time did not contain the modifier “actual”). The Miller majority’s opinion was based on the manifest weight of the evidence issue and the court specifically held that the constitutional issue had been waived because it was raised for the first time in plaintiff’s petition for rehearing. Justice Simon’s dissent is worth reading in its entirety. First, he stated that “the wording of the police department rule on which Lieutenant Miller’s discharge was based [is] too vague and indefinite to deal adequately with a police officer who • maintains two homes, one of which is outside Chicago and within easy commuting distance.” (38 Ill. App. 3d 894, 901, 349 N.E.2d 544, 550.) He further pointed out that the word “reside” is synonymous with live, dwell, abide, stay, or lodge, and that it could not be seriously disputed that the plaintiff officer was “dwelling, staying or lodging” at his Chicago apartment. Furthermore, the residency requirement of the police department “was adopted for purposes entirely different than the residence determinations in the cases relied on by the majority,” which dealt with inheritance rights, divorce, and the right to public aid. “None of those cases hold that a person may not regularly and frequently absent himself from his. domicile or residence in the State of Illinois or in any city in the State.” 38 Ill. App. 3d 894, 901, 349 N.E.2d 544, 550.

Justice Simon further discussed the variety of meanings that the word “residence” may have and noted that the purpose of requiring police officers to live in Chicago did not prevent a police officer from maintaining a second home outside the city. Justice Simon further commented that even the presence of an officer’s wife with him in Chicago does not guarantee that they would not spend much of their time in a second home outside the city and that as he read the majority opinion, “there is no way an officer could reside in Chicago within the meaning of the rule unless his wife and children also lived in Chicago, except if he was separated from his wife.” (38 Ill. App. 3d 894, 902.) Finally, Justice Simon concluded that “[a] public employee is entitled to have the rules of conduct applicable to him defined so that they are clear on their face without the need to refer to case law. For that reason, I believe that unless redrafted to notify police officers in a precise manner which clearly explains what elements the Police Board will look to in determining where a police officer resides and under what circumstances an officer may use a second home outside the city, the rule is incapable of fair enforcement.” 38 Ill. App. 3d 894, 901, 349 N.E.2d 544, 551.

We adopt Justice Simon’s reasoning on this issue. We do not believe that the modifier “actual” cures the term “resident” of the problems outlined above. Even if the ordinance were redrafted to substitute domicile for residence, the practical problem of whether a city employee could own a suburban home for his family would remain unclear. Moreover, the domicile of a person’s family is only one of the relevant factors, since it is possible for one to be domiciled apart from one’s spouse or children. Choike v. City of Detroit (1980), 94 Mich. App. 703, 707-08, 290 N.W.2d 58, 60.

In addition to, or perhaps because of, the vagueness problem, the administration of the residency rule becomes crucial. Defendants deny the need for specificity in setting out the standards for enforcement; they urge us to leave the administration of the ordinance to “the integrity and common sense” of the Personnel Board members whose interpretation may be judicially reviewed for correctness on a case-by-case basis. Plaintiff Byttow’s motion to supplement authority includes a number of Personnel Board decisions involving other firemen who were charged with violating the residency ordinance. They persuasively demonstrate how inconsistently this ordinance has been enforced. Of seven men who were found guilty of violating the ordinance, none were discharged from the fire department. The Personnel Board dismissed the charges against one man, despite its certification of the hearing officer’s finding that the Department had presented evidence which supported the charges. Another man, who admitted spending at least three nights a week in Oak Lawn with his wife and children, received a 30-day suspension. Three more men received 60-day suspensions. The hearing officer in one of the latter three cases had recommended discharge. In the second case, retention was recommended and in the third case, the hearing officer cited some mitigating factors (long service, good work record, attempts to move to Chicago) and recommended a “substantial period of suspension.” In each of the above cases the Personnel Board simply imposed the suspensions without explanation. In the seventh case, the fireman was a six-year employee whose wife and family resided in Midlothian. The fireman’s rent-free dwelling in Chicago was in the basement of a friend’s house and he had no furniture or clothing in Chicago. He admitted spending most of his off-duty time in Midlothian. The Personnel Board adopted the hearing officer’s recommendation to discharge the fireman. Following a rehearing, however, the Board reinstated him despite the hearing officer’s finding that “nothing presented at rehearing refutes the evidence previously presented sustaining respondent’s violation of the residency rule. The evidence presented at best mitigates the offense and demonstrates a good faith effort in respondent’s part to comply, admittedly belatedly, with the Fire Commissioner’s residency ultimatum of August of 1979. *** Accordingly, I recommend that the previous order discharging respondent be reversed * * * >>

An eighth case, included in plaintiff Green’s brief, is a Personnel Board decision that a firefighter did not violate the ordinance. In that case, as in the present ones, department investigators observed the firefighter in the early morning hours at the suburban home of the wife (who was not legally separated from him.) A canvass of the three neighbors at the Chicago address of the firefighter yield no positive identification of the respondent. The firefighter in that case had one car registered in the suburb. His Chicago apartment was a 10' x 20’ room with no kitchen facility. The only clothing that an investigator found at the apartment was one blazer. The Personnel Board dismissed the charges, finding no violation of the ordinance.

After reading the other Personnel Board decisions contained in the record we are at a loss to find any reasoned basis of distinction between the plaintiffs’ situation and the cases involving the firefighters who were not discharged. The ordinances on its face provides that those who violate it shall be discharged, yet in the above cases, the most severe sanction was a 60-day suspension. The plaintiffs did not violate the ordinance “more” than did the suspended firefighters; indeed, Bastían and Byttow in particular appear to have presented sufficient evidence to refute the charges, if there had been a proper standard by which to measure the evidence. We believe that the Personnel Board, in determining future residency cases, must be guided by something other than a mystic discernment of the city employee’s “intent.” “The uncertainty in a statute which will amount to a denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute, but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved ***.” (16 Am. Jur. 2d Constitutional Law sec. 818, at 992 (1979).) We hold that chapter 25, section 30 of the Chicago Municipal Code is unconstitutionally vague because it lacks enforceable standards. Additionally, we find that it was applied in such a way as to violate plaintiffs’ right to due process of law.

Because of our disposition of this case we need not address the other issues raised by plaintiffs, with the exception of Bastian’s cross-appeal for attorney fees under section 1988 of the United States Code. (42 U.S.C. sec. 1988 (1976).) He reasons that he proved the elements of a civil rights action pursuant to 42 U.S.C. sec. 1983 (1976), which requires a showing that defendants acted under color of statute and violated plaintiffs’ civil rights. Bastían argues that defendants’ treatment of him was motivated at least in part by “1. a political element, the firing of plaintiff because of his earnings, the plaintiff having reached the top of the salary schedule, and 2. retribution for participation in a strike.” Further, he cites newspaper articles included in the record which carry stories regarding the dual residency of certain mayoralty appointed, high ranking officials who allegedly are virtually “exempt” from compliance with the residence requirements.

In response to Bastian’s contentions, we initially note that he is not automatically entitled to attorney fees as the prevailing party under section 1988. Award of such fees is clearly within the trial court’s discretion, as the statute expressly provides. Furthermore, the allegations that plaintiff’s discharge was in retribution for a strike is not borne out in the record; nor is there verification that he and others were discharged “to rid the city of highly paid career service employees.” We will not speculate as to the veracity of these charges and conclude that the trial court’s refusal to grant plaintiff attorney fees was not an abuse of discretion.

For the reasons enumerated above, we hold that the municipal ordinance is unconstitutional because it lacks definite standards for equitable enforcement. Alternatively, the ordinance was unconstitutionally applied to plaintiffs. We affirm the trial court’s judgment reversing the Personnel Board’s discharge of Bastían, Byttow, and Green and remand the cause for further proceedings.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.

      The trial court alternatively found that the Board decisions were not against the manifest weight of the evidence.

      For example, Green was the only one who had checking and joint savings accounts in the suburb where his wife lived, and he also had two automobiles registered to that address. His Chicago apartment, unlike the ones rented by Bastían and Byttow, was a $60-a-month furnished room without a telephone, refrigerator or oven.

      It is curious that the drafters did not substitute “domiciliary” for “actual resident," especially since the ordinance, which originally used “resident,” was later amended by the addition of the adjective “actual.”

      Discriminatory administration of laws may also be analyzed as a violation of the equal protection clause of the fourteenth amendment. If a. law operates- unequally so-that any particular person of a class is singled out for the imposition of burdens not imposed upon or borne by all of the class the law may violate both due process, and equal protection. (See 16 Am. Jur. 2d Constitutional Law secs. 802, 803, 817 (1979).) Generally, however, there must be demonstrated an element of intentional or purposeful discrimination against a particular class of persons for an equal protection violation to be established. 16 Am. Jur. 2d Constitutional Law sec. 803 (1979)..

      Ironically, Black’s Law Dictionary includes the following definition of domicile: “The permanent residence of a person or the place to which he intends to return even though he may actually reside elsewhere.” (Emphasis added.) (Black’s Law Dictionary 435 (5th ed. 1979).)
      In an opinion letter to an official of the Office of Housing and Buildings, Department of Local Government Affairs, the Attorney General interpreted a residency provision which provided that a Commissioner of the Chicago Housing Authority “shall be a resident of the area of operation of the Authority ***.” (Ill. Rev. Stat. 1971, ch. 671k, par. 3.) The Attorney General noted the confusion that has resulted from failing to distinguish the terms “domicile” and “residence” and concluded that plural residences were permitted under the statute as long as the Commission “intends in good faith that his residence within the Authority’s area of operation is to be his official residence.” After listing some factors to help determine a person's intent with regard to a residence, the Attorney General concluded that “a Chicago Housing Authority Commissioner may maintain any number of residences or abodes both within and without Illinois, and he may choose one of these residences as his official residence. An additional residence outside the area of operation of the Authority is only one of the many factors to be considered in verifying a person’s residence under the Act and of itself does not negate his expressed intent. This is true especially in view of the fact that no definition, guidelines or limitations are set out in the Act.” Attorney General’s Opinion Letter to Robert J. Lehnhausen, file No. NP — 312, June 30, 1971.

      Of course, the administrative agency’s ultimate factual finding of a person's domicile or permanent residence will be based on that person’s intent. The agency’s decision, however, must be supported by competent evidence, and the city has the burden of proving that an employee has not complied with the residency requirements. See Choike v. City of Detroit (1980), 94 Mich. App. 703, 708, 290 N.W.2d 58, 60-61.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    BOARD OF TRADE OF THE CITY OF CHICAGO, Plaintiff-Appellee, v. DOW JONES & COMPANY, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 1378
    Opinion filed August 17, 1982.

      Lawrence Gunnels, of Reuben and Proctor, of Chicago, and Robert Sack, Thomas C. Morrison, and Robert P. Lobue, all of Patterson, Belknap, Webb and Tyler, of New York, New York, for appellant.

      James M. Amend, Robert G. Krupka, and Donald W. Rupert, all of Kirkland and Ellis, of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Board of Trade of the City of Chicago (the Board) brought a declaratory judgment action in the circuit court of Cook County seeking a declaration that its proposed stock market index contract, which is based on the stock market index and averages devised and published by defendant Dow Jones & Company, Inc. (Dow Jones), would not violate any proprietary rights of Dow Jones. After a bench trial, the court held that the proposed actions of the Board would violate no rights of Dow Jones. On appeal, Dow Jones contends that: (1) the trial court erred by placing the burden of proof on Dow Jones; (2) the circuit court should have declined to hear the case; (3) the trial court’s decree requires correction; (4) the contract between the parties, which is termed a “subscription agreement,” does not authorize the Board’s proposed use of the Dow Jones Averages; (5) the Board is guilty of unfair competition under the law of New York and Illinois; (6) the Board is guilty of a violation of section 43(a) of the Lanham Act; (7) the Board is guilty of contributory trademark infringement; and (8) the Board is guilty of common law misappropriation.

The Board of Trade of the City of Chicago is a not-for-profit, non-stock membership corporation created in 1859 pursuant to a special charter from the Illinois legislature. The corporation was organized for the purpose of maintaining an exchange for the trading of commodity futures contracts. The Board is the oldest and largest, such exchange in the United States, and today the Board offers a wide variety of contracts in agricultural products, precious metals and financial instruments. The business of the Board, and all trading on its exchange, is conducted at the Board of Trade building on Jackson Boulevard in Chicago. The activities of the Board, and of all other commodity exchanges in the United States, are regulated by the Commodities Futures Trading Commission (CFTC), a Federal agency. The CFTC must approve any futures contract which is traded on an exchange, and no exchange may trade in a contract until the CFTC has designated it as a contract marketfor that contract.

Dow Jones is a Delaware corporation with its principal office in New York City. It is primarily a news gathering and publishing organization. Dow Jones publishes the Wall Street Journal, Barron’s and the Asian Wall Street Journal, and operates several wire services which transmit financial news to subscribers by means of ticker tape, computer linkups and the like. The Dow Jones activity which is relevant to this case is its computation of the Dow Jones Averages, in particular the Dow Jones Industrial Average. Dow Jones has been producing and publishing a price average of industrial stocks since 1896. The average has encompassed the stock issues of 30 separate highly capitalized industrial companies since 1928. The identity of the firms whose stocks make up the average has changed from time to time over the years. The selection of stocks used to compute the average is arrived at through the use of considerable financial expertise and experience and is based on Dow Jones’ determination of which stocks are likely to reflect the overall activity of the stock market in their individual fluctuations in price. The Dow Jones Industrial Average is computed by adding together the current prices of the 30 constituent stocks and dividing the total by a number called the “divisor.” The purpose of the divisor is to retain continuity in the overall average. The divisor is adjusted to account for changes in per-stock value which are caused by technical factors such as stock splits or stock dividends. The use of the divisor keeps the average within a range of numbers which is recognizable as the “Dow Jones Average” to the public. The divisor, list of stocks and method of calculating the average are all made public by Dow Jones. Dow Jones itself computes the value of its index once a day. Licensees of Dow Jones compute the value of the index on a “real time” basis throughout the day and disseminate that information via television, tape and electronic readouts to a large number of subscribers, including banks, brokerage houses, securities exchanges and commodities exchanges. The Board is a subscriber to such a service and, pursuant to that subscription, it displays the “real time” Dow Jones Average on its trading floor in order to aid its traders in making investment decisions. It is undisputed, as are most of the facts in this case, that the Dow Jones Averages have achieved high public regard as a source of information about the current performance of the stock market.

The events leading up to this litigation began in February 1980 when the Board submitted a proposal to the CFTC which asked that it be designated as a contract market for several new futures contracts which were to be based on indices composed of groups of stocks listed on the New York Stock Exchange. The indices were formulated entirely by the Board after two years of research and labor. In December 1981, the CFTC entered into a jurisdictional agreement with the Securities and Exchange Commission. Part of that agreement allowed the CFTC to permit trading on stock market index contracts only if the contracts , were based on widely known and well established stock market indices. This agreement effectively precluded CFTC approval of a contract based on any new indices, including the indices which had been devised by the Board.

The Board approached Dow Jones with a proposal that would have paid between $1 million and $2 million yearly to Dow Jones in return for its sponsorship of a contract based on its index. Dow Jones turned down the proposal for the asserted reason that it determined that any connection on its part with the speculative field of futures trading would damage its image as an advocate of conservativism in investment policy. Other prominent stock market indices, notably Standard & Poor’s 500 and the Value Line Index, were licensed by their publishers to commodity futures exchanges for the purpose of trading a contract based on those indices at about the time that the parties here were negotiating.

On February 26, 1982, the Board submitted a proposal to the CFTC asking that it be designated as a contract market for a stock market index futures contract that would be based on the Dow Jones Industrial Index and Average. The contract would be called the Chicago Board of Trade Stock Market Index (CBT Index). The proposal specifies that the CBT Index is identical to the Dow Jones Industrial Index and Average. The contracts are to be settled four times a year, and the value of the CBT Index will be calculated only on the last day of each of those trading periods. The value of the contract is $50 times the value of the index (i.e., the average) on the last day of trading, with “longs” (buyers) and “shorts” (sellers) settling the contracts through an exchange of certified promissory notes for the appropriate sum. Because the value of the CBT Index will be calculated only when the contracts are to be settled, the “spot” value of the contracts during the trading period will be ascertainable only through reference to the current Dow Jones Average. On May 13, 1982, the CFTC designated the Board as a contract market for the CBT Index contract.

While the Board’s proposal was pending before the CFTC, the Board filed this action in the circuit court of Cook County, seeking a declaration that its proposed contract would violate no proprietary rights of Dow Jones in the index and averages. On June 4, 1982, the trial court issued a 27-page opinion, holding that the burden of proof in the declaratory judgment action should be on Dow Jones; that Dow Jones has a property right and a valuable interest in the Dow Jones Index and Averages and a wrongful use of that property is actionable at law and in equity; and that the Board’s proposed use of the averages was not a misappropriation of Dow Jones’ property and therefore the Board was free to offer its CBT Index contract for trading. The court made this ruling conditioned on the use of a disclaimer on the CBT Index contract disavowing any association with or sponsorship by Dow Jones.

Dow Jones’ first contention on appeal is that the trial court erred in determining that the burden of proof in the action should be placed on Dow Jones despite the fact that it was the nominal defendant in the declaratory judgment action. In allocating the burden of proof to Dow Jones, the trial court relied on Caley v. Manicke (1961), 29 Ill. App. 2d 323, 173 N.E.2d 209, rev’d on other grounds (1962), 24 Ill. 2d 390, 182 N.E.2d 2096, which stated:

“The general rule is that the burden of proof rests on the party who has the affirmative of the issue, as determined by the pleadings, and the usual test employed to determine on which side the burden of proof lies, is to ascertain which party would be entitled to a verdict if no evidence were offered.” 29 Ill. App. 2d 323, 327.

As the trial court noted, what is generally termed “the burden of proof” has two aspects: (1) the burden of producing evidence as to a particular matter; and (2) the burden of persuading the trier of fact as to the existence of the fact asserted. The burden of producing evidence, which is sometimes called the burden of going forward, shifts from party to party during the course of a trial, but the burden of persuasion is always firmly allocated to one of the parties and does not shift. (Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 639, 333 N.E.2d 50; see McCormick, Evidence sec. 336, at 784 (2d ed. 1972).) The trial court held that both of these burdens belonged to Dow Jones. The trial court stated that “[ejven though Dow Jones is the defendant it has the affirmative issue. It must establish that certain of its proprietary rights in its Averages will be violated by the Board’s proposed activity.”

The pleadings in this case show the Board praying for a declaration that “[b]y offering the commodity futures contract described in paragraph 4, the Board of Trade will not violate any legal or proprietary right of Dow Jones.” Dow Jones’ answer sets forth several proprietary rights which allegedly will be violated by the Board’s actions.

It is true that Dow Jones has the affirmative of the issue as it is framed by the Board. It has sometimes been said that a party is not required to prove a negative averment. (See Williams v. Franks (1973), 11 Ill. App. 3d 937, 939, 298 N.E.2d 401.) However, allowing the presence of a negatively phrased averment in a complaint to shift the burden of persuasion to the other party places “an entirely undue emphasis on what is ordinarily purely a matter of choice of forms.” (McCormick, Evidence sec. 337, at 786 (2d ed. 1972).) The ease of devising a positive phrasing of the issue is demonstrated in the paragraph of the Board’s complaint which states that “this action *** seeks a declaration of the right of the Board of Trade to proceed to offer a commodity futures contract, as described below, without interference by Dow Jones.” Our supreme court has stated:

“The burden of proof does not depend upon the form of the proposition. The weight of authority is, that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation [citation] for that particular fact is essential to his case.” Abhau v. Grassie (1914), 262 Ill. 636, 638, 104 N.E. 1020.

The supreme court has also stated that the allocation of the burden of proof of a negative averment “must depend on its own peculiar circumstances. Where it is as easy for the plaintiff to prove the negative as it is for the defendant to disprove it, then the burden of proof must rest upon the plaintiff.” Hooper v. Talbot (1931), 343 Ill. 590, 593, 175 N.E. 783.

The Board of Trade has clearly sought relief in this action. It is asking for a declaration, binding on Dow Jones, that it has the right to trade the CBT Index contract. In its complaint, it made the sweeping averment that its proposed course of action would violate no proprietary rights of Dow Jones. Insofar as it is helpful to contemplate what the result of this action would be “if no evidence were offered,” it is clear that the Board would not be entitled to its declaration on the basis of the pleadings.

The trial court noted that Dow Jones has filed a complaint in the United States District Court for the Southern District of New York which sets forth as grounds for relief many of the matters which Dow Jones raised as defenses in the instant case, and that counsel for Dow Jones stated before that court that the true posture of the case is that Dow Jones is the complaining party in the entire course of this litigation. It may be that Dow Jones is the complaining party in some aspect of the extensive litigation between itself and the Board, but it seeks no affirmative relief here. The Board has taken the initiative in this court and the trial court by seeking a declaration of its right to do what it proposes. The facts in the instant case, though voluminous, are uncomplicated, and consist of information that was relatively accessible to both parties. The averments of the Board’s complaint are as easily proven by the Board as they are disproven by Dow Jones. We hold that the burden of persuasion should have been allocated to the Board.

The trial court also held that the burden of producing evidence should fall solely upon Dow Jones. As has been previously noted, the burden of producing evidence shifts from party to party during the course of a trial. That burden, however, is initially assigned to the party who pleaded the existence of the fact to be proven. (See McCormick, Evidence sec. 336, at 784; sec. 338, at 791-93 (2d ed. 1972).) The Board’s complaint alleges that the Board has “a right to trade,” while Dow Jones’ answer alleges rights that will be violated by the Board. The burden of producing evidence on these allegations should have been shared at least to some extent by the parties. We find that the trial court erred in assigning the entire burden of producing evidence to Dow Jones.

Dow Jones also contends that the trial court erred in finding that the subscription agreement between the parties authorized the Board’s proposed use of the Dow Jones Index and Averages. The subscription agreement entitles the Board to receive the Dow Jones News Service at prevailing monthly rates, and to use the information received from the service. Under that contract, the Board agrees not to redistribute the news service for 24 hours after its receipt, to install and maintain Dow Jones equipment for the transmission of the service and to allow Dow Jones to inspect the transmission and display equipment. The information provided by the news service includes new items from Dow Jones and other press associations, and the current Dow Jones Averages from Dow Jones and its licensees. The agreement introduced into evidence is a standard Dow Jones form contract which was executed on April 24, 1978, for a term of three years, which term automatically renews itself.

It is clear from the face of the agreement that Dow Jones is contracting to sell informational services to its subscribers, who may use the information provided they do not redistribute it for 24 hours after its receipt. The Board contends that its use of the averages as a trading vehicle is within the “uses” contemplated by the agreement.

It is undisputed that the current agreement, or one like it, has been in effect for many years. Under the agreement, Dow Jones has transmitted financial information to the Board which the Board has displayed to its customers. Assuming that the word “use” in the contract creates an ambiguity which justifies judicial construction, the actual conduct of the parties under the contract makes it clear that the “use” contemplated when the contract was entered into was “use” of the service as information. The courts will adopt a reasonable construction of a contract which is placed on the contract by the conduct of the parties. (Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 81, 195 N.E.2d 137.) Where there is doubt concerning the construction to be afforded a contract, the interpretation which parties by their acts under the contract have given it has weight and will be controlling provided that the plain meaning of the contract is not contradicted. (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 973, 393 N.E.2d 1269.) In the instant case, the use of the Dow Jones News Service by the Board has been as an informational service only for all the years that the contract has been in force. The construction of the contract by the parties negates the contention that the use of the averages as a trading vehicle is authorized by the contract. This conclusion is supported by the fact that stock market index contracts are the newest innovation in the relatively young field of financial futures trading. This use of the averages became a commercial possibility only recently, and such use could not have been part of the bargain when the contract was formed. We find that the trial court erred in finding that the subscription agreement authorizes the Board to use the Dow Jones Averages as the basis for the CBT Index contract.

Dow Jones urges several other points of error as grounds for reversal; however, the dispositive body of law in this case is the common law doctrine of misappropriation. The parties base their theories concerning this body of law upon the law of Illinois, New York, and other jurisdictions. It should be noted at the outset that misappropriation is a species of unfair competition. Unfair competition is a tort (Data Cash Systems, Inc. v. JS&A Group, Inc. (N.D. Ill. 1979), 480 E Supp. 1063, 1071), and the law of the State with the most significant relationship to the parties and to the relevant occurrence governs the action. (Ingersoll v. Klein (1970), 46 Ill. 2d 42, 45, 262 N.E.2d 593.) Dow Jones, a Delaware corporation headquartered in New York, has offices and a registered agent in Illinois. It transmits its averages into Illinois directly and through licensees, where the Board proposes to make use of them as the basis of the CBT Index contract. The Board does business solely in Illinois, and the contract will be traded exclusively in Blinois. Illinois has the most significant relationship of any State to the parties and to the Board’s proposed activities and, therefore, Illinois law properly governs this action.

The doctrine of misappropriation is recognized in Illinois. (See Capitol Records, Inc. v. Spies (1970), 130 Ill. App. 2d 429, 434, 264 N.E.2d 874.) However, any discussion of the doctrine must make repeated reference to the law of other jurisdictions, particularly New York, where the doctrine has been most fully delineated.

The doctrine was first enunciated by the United States Supreme Court in the case of International News Service v. Associated Press (1918), 248 U.S. 215, 63 L. Ed. 211, 39 S. Ct. 68. In that case, the defendant news service received reports pertaining to World War I, which were transmitted over a “wire” by the plaintiff. Defendant copied the news stories and transmitted them to its subscribing newspapers on the west coast for publication. The defendant argued that the plaintiff lost the right to control the uses made of its news stories by virtue of the plaintiff’s wide public dissemination of the stories, and that it had the same right as any purchaser of a newspaper containing the stories to communicate the information in the stories to others. The court stated that the rights of the defendant to use the information provided by the plaintiff should not be gauged by the rights of the plaintiff as against the general public, but should be evaluated by a consideration of the rights of the plaintiff and the defendant, competitors in the news business, as between themselves. (248 U.S. 215, 239, 63 L. Ed. 211, 221, 39 S. Ct. 68, 72.) The court further stated that the transmission of the stories for commercial use by the defendant involved the implicit admission that:

“it: is taking material which has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as his own is endeavoring to reap where it has not sown ***. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; ***. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business.” 248 U.S. 215, 239-40, 63 L. Ed. 211, 221, 39 S. Ct. 68, 72-73.

The court went on to describe the new species of unfair competition that it had created:

“[Defendant's conduct differs from the ordinary course of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainant’s goods as its own.” 248 U.S. 215, 242, 63 L. Ed. 211, 222, 39 S. Ct. 68, 73.

As the Board points out, the majority of the cases applying the misappropriation doctrine involve direct competition between the parties, an element which is missing in the instant case. However, it has been stated that:

“The modern view as to the law of unfair competition does not rest solely on the ground of direct competitive injury, but on the broader principle that property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement.” Metropolitan Opera Association, Inc. v. Wagner-Nichols Recorder Corp. (Sup. Ct. 1950), 199 Misc. 786, 796, 101 N.Y.S.2d 483, 492, aff'd (1951), 279 App. Div. 632, 107 N.Y.S.2d 795.

In the Metropolitan Opera case, the defendant was engaged in the practice of recording performances of the plaintiff opera company from the radio and manufacturing and selling phonograph records of those performances. The opera association licensed the exclusive right to make and sell recordings of its performances to Columbia Records, also a plaintiff in the case. Although the defendant was in direct competition solely with Columbia, the court found the defendant guilty of unfair competition as to both plaintiffs. As to the opera company, the court held that the defendant was unjustifiably interfering with its contract with a third party (199 Misc. 786, 803, 101 N.Y.S.2d 483, 498), as well as violating the opera company’s right to control its name and reputation (199 Misc. 786, 797-98,101 N.Y.S.2d 483, 494-95).

There can be no question but that the name and reputation of Dow Jones figures heavily in the Board’s plans. The Board can gain CFTC approval for a stock market index contract only if the contract is based on a widely known and well established stock index. When the Board became aware that the index which it had devised could not be used as the basis for its contracts, it approached Dow Jones in order to secure Dow Jones’ sponsorship of the contracts. When Dow Jones rejected this offer, the Board proposed the CBT Index. The CBT Index is based directly on the Dow Jones Index and must in all events perform identically to the Dow Jones Index. The “spot” value of the CBT Index can be ascertained only from the “real time” Dow Jones value displayed on the trading floor of the Board of Trade. Although the contract itself ■will not use the trade name “Dow Jones,” except to disclaim any connection with that company, the value of the contract at any particular time during the trading period will be ascertained by traders by reference to the Dow Jones Average. It is clear that the trading public will be entirely aware that trading the CBT Index contract is the same as trading a Dow Jones Index contract, and whatever aura of reliability, respectability, or expertise would adhere to a Dow Jones contract, if one existed, will adhere to the CBT Index contract, with or without the use of the Dow Jones name.

Not every commercial use of the ñamé and reputation of another is an actionable misappropriation. In National Football League v. Governor of the State of Delaware (D. Del. 1977), 435 F. Supp. 1372, the State of Delaware was conducting a lottery called “Scoreboard” which essentially required players to bet on the final scores of N.F.L. games. The court held that there was no actionable misappropriation in the use of the N.F.L. scores as the basis of the lottery. (435 F. Supp. 1372, 1378-80.) The court reasoned that although one has a right to reap the profits of one’s business without interference, this right does not preclude others from profiting from the demand for “collateral” services created by the popularity of that business. (435 F. Supp. 1372, 1378.) The court also stated that the N.F.L.’s claim that the State was appropriating the N.F.L.’s “good will” or “reputation” was, in that case, simply another way of saying that the lottery was profiting from a demand to gamble on the outcome of N.F.L. games that the popularity of those games had created. (435 F. Supp. 1372, 1378.) The crucial distinction between that case and the case before us is that the product which the Board seeks to sell is not as “collateral” to the business of Dow Jones as the lottery was to the business of the N.F.L. The N.F.L. is in the business of presenting professional football contests of a high caliber to fans of that sport who watch the games in person or through the media. The games, not the scores, are the product that the N.F.L. offers for sale. The coflection and dissemination of the scores is performed by the news media, and the N.F.L. does not “produce” those scores in any meaningful sense.

Dow Jones is in the business of collecting and tabulating financial information on companies which are carefully selected based on Dow Jones’ financial expertise and acumen. That information is filtered through a “divisor” of Dow Jones’ invention, and by that process the raw figures which were originally collected are freed from distortions which reflect factors other than the objective economic performance of the stocks in the index. Finally, Dow Jones is in the business of disseminating the resultant average to investors. The use of the Dow Jones Index as the basis for the CBT Index contract is a far cry from the use of football scores as the basis for a lottery. Traders in the contract are not merely “betting” on the index “numbers.” The Board asserts that institutional investors and others will use the CBT contract as a “hedge,” that is, to manage the risk in their stock portfolios. The strong correlation of the Dow Jones Average to the general pattern of stock market activity is essential to the usefulness of the CBT Index contract as a hedging device, and it is that correlation which will give “hedgers” confidence in the contract. That correlation exists solely as a result of Dow Jones’ expertise, and has garnered considerable good will and respect for Dow Jones in the minds of the public. If a less reliable index and average were used, the CBT Index contract would be no more than a gambling device and would not gain CFTC approval. Thus, the Board’s use of the Dow Jones Averages is not a “collateral” service or product which utilizes the good will of Dow Jones in an attenuated fashion. The use of the Dow Jones Averages is not aimed at appealing to that segment of the public which is interested in the activities of Dow Jones. The contract is intended to appeal to the customers of the Board who are interested in trading stock market index futures, and the contract is designed to give those traders the sense of confidence that knowing that the contract is identical to a “Dow Jones contract” will surely produce.

Recently, the United States District Court for the Southern District of New York, Judge Milton Pollack presiding, granted Standard & Poor’s Corporation’s request for a preliminary injunction to prevent Commodity Exchange, Inc. (Comex) from trading in its proposed “Comex 500” contracts. (Standard & Poor’s Corp., Inc. v. Commodity Exchange, Inc. (No. 82-2545, S.D.N.Y. May 13, 1982), 14 Sec. Reg. & L. Rep. 976, aff’d (2d Cir. 1982) 683 F.2d 704.) The Comex 500 contract was based on Standard & Poor’s 500 (S&P 500) Stock Index. The holding in that case was the subject of extensive analysis by the trial court, and that case has been thoroughly briefed in this court. The facts of that case can be summarized as follows. Beginning in 1979, Comex entered into negotiations with Standard & Poor’s (S&P) in order to obtain a license to trade stock market index contracts based upon the S&P 500. S&P ultimately granted a license to trade in such a contract to the Chicago Mercantile Exchange. In December 1980, Comex applied to the CFTC for designation as the contract market for the Comex 500 contract. In the application, Comex referred to the “Comex 500” and the “S&P 500” interchangeably. Comex never proposed to calculate or use its own index of 500 stocks, instead stating that its contract was to be quoted in terms of and settled on the basis of the current quotation for the S&P 500. Prior to the CFTC ruling on the contract, Comex published a brochure featuring S&P’s name prominently and stating that the Comex 500 was to be settled based on the S&P 500. The court found that Comex planned to use the S&P name and reputation in a way that would cause confusion as to the sponsorship of the contract, and that Comex’ proposed use of the S&P 500 was a misappropriation of S&P’s property without authority from and over the objection of S&P.

The trial court, in the instant case, found that the S&P case was distinguishable for four reasons: (1) Unlike Dow Jones, S&P does not make the method by which its index is calculated completely public. Although the list of stocks in the index and the general formula for computing the average are public knowledge, the “real time” calculations of the index by S&P’s licensees depend on the input of confidential information provided by S&P. The court found that this factor makes it impossible to calculate the S&P Index without the “direct participation” of S&P, while the Dow Jones Index may be calculated without any secret information from Dow Jones; (2) The name of the Comex 500 contract is perilously close to the S&P 500 trademark. In the instant case, the Board’s contract was to make no use of the Dow Jones name, although the disclaimer required by the trial court will have the effect of placing Dow Jones’ name on every contract; (3) Comex never disclaimed an association with S&P. Instead, it tried to create the impression that the contract was sponsored by S&P. The Board does and will continue to disclaim any association with Dow Jones; and (4) Comex used the S&P name to promote the contract, while the Board will make no promotional use of the Dow Jones name.

The distinctions drawn by the trial court as to the differing use by the two exchanges of the trademarks and trade names of the index producers are significant. The absence of the Dow Jones name from the Board’s promotional materials and the use of an unambiguous disclaimer of sponsorship clearly make the Board’s planned activity less egregious than Comex’. The use of the disclaimer may obviate any possible confusion as to the sponsorship of the contract, although this court has noted that a disclaimer does not adequately protect the rights of the complaining party if the connection inherent in the product itself is sufficiently strong. (See N.F.L. Properties, Inc. v. Consumer Enterprises (1975), 26 Ill. App. 3d 814, 819, 327 N.E.2d 242; N.F.L. Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App. 3d 820, 824, 327 N.E.2d 247.) However, the misappropriation complained of in this case is not a misappropriation of Dow Jones’ name, but of the property right of Dow Jones in its averages and the good will and public respect attendant to them.

The trial court’s finding that there is no appropriation of the Dow Jones Averages because the Board can and will compute the averages itself creates a distinction without a difference between the actions of the Board and Comex. At the close of trading in each CBT Index contract, the Board, through the Chicago Board of Trade Clearing Corporation, will tabulate the stock prices of the companies comprising the CBT Index on that date, which will be the same companies comprising the Dow Jones Index on that date. The Board will apply the CBT divisor in use on that date, which will be the Dow Jones divisor in use on that date. The final figure will be the closing value of the CBT Index, which will be the closing value of the Dow Jones Index on the last trading day. The fact that this type of mechanical calculation could not be performed using the S&P 500 is not the point. The value of the Comex 500 contract is the closing value of the S&P 500 on the last day of trading; the value of the CBT Index contract is the closing value of the Dow Jones Index on the last day of trading. The CBT Index, by the terms of its CFTC approval, must be identical to the Dow Jones Index in all of its features at all times. During the trading period, traders can refer to the “real time” value of the Dow Jones Index and know to a certainty that the “spot” value of their contracts is identical to the value of that index without the slightest deviation. The fact that the Board is willing and able to perform a rote calculation of the index value four times a year does not make the index and average its creation or its property, and that occasional calculation does not make the CBT Index and Average any less the Dow Jones Index and Average.

It should be noted that there is another distinction between the S&P case and the instant case. S&P is a party to a licensing agreement with the Chicago Mercantile Exchange under which that exchange trades in an “S&P 500” contract. Dow Jones has entered into no such agreement with an exchange for the use of its averages. The fact that an appropriation of a property right, if permitted, would interfere with the contractual relations of the owner of the property right and a third party has been considered a significant factor in some cases applying the misappropriation doctrine. (See New York World’s Fair 1961-1965 Corp. v. Colour Picture Publishers, Inc. (1964), 21 App. Div. 2d 896, 896-97, 251 N.Y.S.2d 885, 886; Metropolitan Opera Association v. Wagner-Nichols Recorder Corp. (S. Ct. 1950), 199 Misc. 786, 795-96, 101 N.Y.S.2d 483, 498, aff’d (1951), 279 App. Div. 632, 107 N.Y.S.2d 795; Madison Square Garden Corp. v. Universal Pictures Co. (1938), 255 App. Div. 459, 466, 7 N.Y.S.2d 845, 850.) In the instant case the existence or nonexistence of a license between Dow Jones and another exchange is not a determinative factor. It is clear from the arrangements made between other index producers and other exchanges, and from the offer made by the Board to Dow Jones, that there is a valuable market for any license that Dow Jones might care to grant for trading in a Dow Jones Index contract. Dow Jones has chosen not to avail itself of this market. A party which is free to deal is free not to deal. An existing licensing agreement with a third party which would be hampered or impaired by the Board’s activities would add another species of tortious conduct to this case, but would add nothing to the analysis of whether or not the property of Dow Jones is being misappropriated by the Board.

The trial court found that Dow Jones has a proprietary interest in its averages, and that finding is undisputed by the parties. The Board’s proposed use of the Dow Jones Index and Averages under the name of “the CBT Index” is closely analogous to what has been described as “reverse passing off,” that is, an appropriation of the product while disclaiming its source. (See Smith v. Montoro (9th Cir. 1981), 648 F.2d 602, 606.) Whether the occasional calculation of the value of the index by the Board is enough to prevent the use of the Dow Jones Index from being a “reverse passing off” which is actionable under section 43(a) of the Lanham Act need not be determined by this court. The Board’s conduct is within the boundaries of the doctrine of misappropriation. That doctrine will extend to protect the complaining party from unfair competition or trade practices regardless of how novel or ingenious those practices are. (Madison Square Garden Corp. v. Universal Picture Co. (1938), 255 App. Div. 459, 467, 7 N.Y.S.2d 845, 852.) The doctrine is “adaptable and capacious” and has been described as “encompassing any form of commercial immorality.” (Standard & Poor’s Corp. v. Commodity Exchange, Inc. (2d Cir. 1982), 683 F.2d 704, 711, quoting Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting System, Inc. (2d Cir. 1982), 672 F.2d 1095, 1105, cert. pending (U.S. May 14, 1982), 50 U.S.L.W. 3936.) The controlling question in a misappropriation case is whether the commercial practice at issue is fair or unfair. Fisher v. Star Co. (1921), 231 N.Y. 414, 427,132 N.E. 133,137.

The facts in the instant case amply demonstrate that the appropriation of the Dow Jones Index and Averages by the Board for use as a trading vehicle is unfair. We hold that the Board’s proposed actions are a misappropriation of the Dow Jones Index and Averages.

For the reasons expressed herein, the judgment of the circuit court of Cook County is reversed.

Reversed.

DOWNING and HARTMAN, JJ., concur.

        Dow Jones & Co. v. Board of Trade (S.D.N.Y. 1982), 539 F. Supp. 190. On June 22, 1982, the district court dismissed all of Dow Jones’ claims except its claim for copyright infringement. On July 16, 1982, that court denied Dow Jones’ request for a preliminary injunction which would have prevented the Board’s use and dissemination of a list of the stocks comprising the CBT Index. The court stressed that whether the Board’s use of the averages or the trading of the index contracts were actionable under any theory other than copyright infringement were questions left to the courts of Illinois.

      Good will is recognized as a business asset, and it figures significantly in the valuation of a business. (See White v. White (1981), 98 Ill. App. 3d 380, 383-84, 424 N.E.2d 421; see also Annot., 48 A.L.R. 3d 430, 479, sec. 12(b) (1973).) Harm done to the good will of a business has been recognized as a proper element of consequential damages in actions sounding in contract (Stott v. Johnston (1951), 36 Cal. 2d 864, 871, 229 P.2d 348, 352), and in tort (see Lowrey v. Dingmann (1957), 251 Minn. 124, 128, 86 N.W.2d 499, 502). When a business is sold, its good will can be transferred along with its other assets. (See Mohawk Maintenance Co. v. Kessler (1981), 52 N.Y.2d 276, 283, 419 N.E.2d 324, 328-29.) It follows that, in some circumstances, the good will of a business can be appropriated to another’s use, and a wrongful appropriation of that property right is actionable. Cf. Mohawk Maintenance Co. v. Kessler (1981), 52 N.Y.2d 276, 284-85, 419 N.E.2d 324, 329 (holding that the seller of a business implicitly transferred a property right in the firm’s good will to the buyer, and that the seller could not then impair that right by actively soliciting the customers of his former business). Accord, Ranft v. Reimers (1902), 200 Ill. 386, 394, 65 N.E. 720.


author: JUSTICE BARRY

text:
    THE PEOPLE ex rel. RONALD BURBANK, Petitioner-Appellant, v. JAMES R. IRVING, Chairman, Illinois Prisoner Review Board, et al., Respondents-Appellees.
    Third District
    No. 81-397
    Opinion filed August 24, 1982.

      Ronald Burbank, for appellant, pro se.

    Tyrone C. Fahner, Attorney General, of Springfield (Imelda R. Terra-zino, Assistant Attorney General, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

. In 1970 the petitioner, Ronald Burbank, was found guilty of murder and was sentenced to an indeterminate term of 100 to 150 years’ imprisonment ■ following a jury trial in the circuit court of Cook County. He was convicted of participating in an aborted armed robbery in which his partner had shot and killed the victim. The petitioner has since served his minimum sentence, with allowance for statutory good time credits, in the Department of Corrections Sta-teville Correctional Center in Joliet and has applied for parole before the Prisoner Review Board four times, all of which have been denied.

Because the petitioner received his indeterminate sentence, which exceeded 20 years, prior to the effective date of the 1977 act amending the Unified Code of Corrections, the Prisoner Review Board was not authorized to set a fixed parole date. (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—2.1(b).) Therefore the petitioner had to first fulfill the requirements of section 3 — 3—3(a) to become eligible for parole. (Ill. Rev. Stat. 1979, ch. 1003 — 3—3(a).) Upon becoming eligible in June 1978, he applied for parole, but the Board denied his request, basing its decision on “the very serious nature of your committing charge, murder, and your extremely lengthy sentence of 100 to 150 years.” One year later the Board rejected his second request for parole, finding that parole would deprecate the serious nature of his offense. (Ill. Rev. Stat. 1979, ch. 38, par. 1003 — 3—5(c)(2).) The Board added, however, that the petitioner would be a “more positive candidate” for parole were he to complete successfully a work release program and recommended that the Department of Corrections transfer him to that program. The petitioner’s application for work release through a community correctional center was approved by the Institutional Classification Committee, but the Department of Corrections, which operates the program, rejected the application and the Prisoner Review Board’s recommendation, reasoning that further observation in a minimum security setting was necessary before it would consider transferring the petitioner to a community correctional center. He then exhausted his administrative remedies without success. In February 1980 the Board rejected the petitioner’s third application for parole, citing the same reason as the previous rejection, to prevent the deprecation of the seriousness of the offense. Later in 1980 the petitioner reapplied for work release, but his application was denied by the transfer coordinator for the Department of Corrections. The reasons given for the denial were the petitioner’s lengthy sentence, the seriousness of the offense, protests from the State’s Attorney and others, and the three prior denials by the Prisoner Review Board. In February 1981, the Board rejected the petitioner’s fourth application for parole, this time saying his release would deprecate the seriousness of the offenses “for which you were convicted, murder [and] armed robbery ***.” In June 1981 the petitioner filed the instant pro se petition for habeas corpus in the circuit court of Will County seeking his discharge from the custody of the Department of Corrections. His petition contained essentially the following four allegations: that the system of prisoner release violated the petitioner’s rights to due process; that the Board acted arbitrarily and capriciously when it denied parole based on the seriousness of the offense because such a reference was “boiler plate” language that was vague and insufficient; that the Board abused its discretion in denying his fourth request for parole because it based its decision in part on an offense which the petitioner was neither charged with nor convicted of; and that the Department of Corrections abused its discretion in refusing to accept the Board’s recommendation that the petitioner participate in a work release program. He alleged that had the Board acted properly and placed him on parole, his sentence would have been terminated by the time the instant habeas corpus action was filed. The circuit court dismissed his petition finding that he had failed to state a cause of action. He appeals from that dismissal, and we affirm.

At common law the writ of habeas corpus was a-highly prerogative form of relief designed for the purpose of effecting the speedy release of persons who are illegally deprived of their liberty. The proceeding is not a corrective one, and, where other proceedings are available and effective, habeas corpus relief will not be favored. (39 Am. Jur. 2d Habeas Corpus sec. 18 (1968).) The primary and, ordinarily, the only question involved in habeas corpus proceedings is one of jurisdiction — namely whether the particular order, judgment, or process whose validity is attacked comes within the lawful authority of the court making or issuing it. If a court determines that the petitioner has been illegally deprived of his liberty, it will order the only remedy authorized, his immediate release from custody.

The specific authority of Illinois courts to grant discharges in ha-beas corpus proceedings has been carefully prescribed in sections 21 and 22 of the Habeas Corpus Act. (Ill. Rev Stat. 1979, ch. 65, pars. 21, 22.) Section 21(2) provides that a court shall not discharge a person who is held in custody by virtue of any circuit court, unless the time during which such party may be legally detained has expired. Section 22(2) authorizes discharge where, though original imprisonment was lawful, yet by some act, omission, or event which has subsequently taken place, the party has become entitled to his discharge. Our supreme court has repeatedly held that a court has jurisdiction in a habeas corpus proceeding only when the original judgment of conviction was void, or where something has happened since its rendition to entitle the prisoner to immediate release. Moreover, where the legality of the original imprisonment is not challenged, the inquiry is ordinarily limited to determining whether the maximum term for which the defendant was sentenced has expired or has been lawfully terminated. People ex rel. Castle v. Spivey (1957), 10 Ill. 2d 586, 141 N.E.2d 321.

In applying these strictly obeyed jurisdictional precepts of the Habeas Corpus Act to the instant case, we must affirm the dismissal of the petition because our law is well settled that the decision to grant parole to a prisoner who has not yet served his maximum sentence is not a subsequent act, omission, or event entitling him to discharge. For the same reason, we find that the Department of Corrections’ refusal to place the petitioner in a work release program did not entitle him to habeas corpus discharge. Accordingly, his petition failed to state a cause of action. Although the petitioner has vigorously and cogently presented his contentions before the circuit court and this court, he has labored under the misapprehension that habeas corpus relief which is available in the Federal courts (28 U.S.C. sec. 2241 et seq. (1976)) is identical to Illinois habeas corpus proceedings and has relied on numerous Federal cases in this State setting. In a Federal habeas corpus proceeding, the district court in United, States ex rel. O’Connor v. MacDonald (N.D. Ill. 1978), 449 F. Supp. 291, noted the relatively narrow scope of the Illinois Act in comparison to the Federal habeas corpus law in holding that an Illinois prisoner, who claimed that the Prisoner Review Board’s denial of parole was unconstitutional, had not failed to exhaust his State judicial remedies when he failed to seek discharge first under our Habeas Corpus Act:

“The question whether in a particular case an Illinois prisoner has an available post-conviction remedy is an old and troublesome one. [Citations.] For a case like the one at bar, sections 1003 — 3—1 et seq. of the Uniform Code of Corrections which govern Parole Board rulings, do not provide for judicial review. Moreover, it is fair to say that Illinois courts display an unwillingness to make state remedies available to prisoners. [Citation.] Whether common law certiorari, a well known Illinois procedure, see Goodfriend v. Board of Appeals of Cook County, 18 Ill. App. 3d 412, 305 N.E.2d 404 (1973), is available to a prisoner like petitioner, is a subject that has not attracted the attention of legal scholars, practicing lawyers, or Illinois judges.” United States ex rel. O’Connor v. MacDonald (N.D. Ill. 1978), 449 F. Supp. 291, 295 n.2.

Aside from the rather disparaging tenor of MacDonald, we concur with its conclusion that the Illinois Habeas Corpus Act does not provide relief to a prisoner whose request for parole has been unreasonably, arbitrarily, or capriciously denied. Even those decisions of the Board that are tantamount to the alleged constitutional violations of which the petitioner claims here are not subject to habeas corpus relief in the Illinois courts. This is true because parole is not a termination of the prisoner’s sentence and does not entitle him to immediate discharge, which is the sole relief available under our Act. In Illinois, the mere existence of a system for paroling prisoners does not transform parole into a legal right. (People ex rel. Castle v. Spivey (1957), 10 Ill. 2d 586, 141 N.E.2d 321; accord, Greenholtz v. Inmates (1979), 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100.) Admission to a parole status does not terminate a prisoner’s sentence, therefore entitling him to discharge, for parole is simply an alternative method by which he may complete his sentence. (People ex rel. Johnson v. Pate (1970), 47 Ill. 2d 172, 265 N.E.2d 144.) The decision to modify the prisoner’s status from incarceration to parole lies within the largely unreviewable discretion of the Prisoner Review Board. Parole, as well as work release, is granted to prepare a prisoner for his ultimate release and discharge of his sentence. Once placed on parole, however, a prisoner remains in the “custody” of the Department of Corrections and must complete the term unless the Board orders early release and discharge under section 3 — 3—8. (Ill. Rev. Stat. 1979, ch. 38, par. 1003— 3-8; Collins v. Sielaff (1976), 43 Ill. App. 3d 1022, 357 N.E.2d 1213.) For a court to order a habeas corpus discharge before the petitioner’s sentence is completed on the basis of an erroneous or inequitable denial of parole, would exceed its authority under the Habeas Corpus Act and constitute an exercise of clemency, a function vested in the executive, not judicial, branch. People ex rel. Castle v. Spivey (1957), 10 Ill. 2d 586, 141 N.E.2d 321.

Moreover, we cannot accept the petitioner’s contention that at the time he filed his petition he was entitled to immediate discharge because, had the Board properly granted his first application for parole in 1978, he would have completed his statutorily prescribed three year term of parole. (Ill. Rev. Stat. 1979, ch. 38, pars. 1003 — 3—8, 1005— 8 — 1(d)(1).) To accept this argument, we would have to presume that a petitioner would not have violated the terms of his probation for that period, a presumption which we decline to indulge.

Accordingly, we affirm the order of the circuit court of Will County dismissing the petition for writ of habeas corpus.

Affirmed.

SCOTT, P. J. and ALLOY, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    DARLENE M. GRANFIELD et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF BUREAU COUNTY et al., Defendants-Appellees.
    Third District
    No. 81 — 517
    Opinion filed August 12, 1982.
    Modified on denial of rehearing September 21,1982.

      Watts C. Johnson, of Johnson, Martin & Russell, P.C., of Princeton, for appellants.
    William C. Rounds, of Ladd, for appellee Board of Education of Ladd Community Consolidated School District No. 94.
    Louis E. Olivero, of Peru, for appellee Board of Directors of Dalzell Community School District No. 98.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs, Darlene M. Granfield, Martin F. Granfield, and Evelyn G. Granfield, appeal the order of the circuit court of Bureau County affirming an administrative ruling of the Regional Board of School Trustees (Board) denying a petition for detachment and reannexation of property between school districts. We reverse.

A petition was filed by plaintiffs with the Board, to detach territory from Dalzell Community Consolidated School District No. 98 and to annex that territory to Ladd Community Consolidated School District No. 94, under the authority of section 7-6 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 7-6). Following a hearing on July 7, 1980, the Board unanimously voted to deny the petition. On July 31, 1981, the circuit court subsequently affirmed the decision after a hearing on plaintiffs’ complaint for administrative review.

On appeal plaintiffs contend the Board’s decision was contrary to the manifest weight of the evidence and based on findings of fact which were contrary to the manifest weight of the evidence and erroneous conclusions of law.

The undisputed evidence at the hearing before the Board showed the following: The assessed valuation of the property involved in the petition was $54,300 and it accounted for one-twelfth of the area of the Dalzell district. The assessed valuation of the Ladd district was $9,272,507 and the 1978 tax rate was 1.7940, while the assessed valuation of the Dalzell district was $2,527,616 and the 1978 tax rate was 1.7823. The property included a subdivision named Granfield Acres. The student-teacher ratio at Dalzell was 13 to 1, while at Ladd it was 15 to 1. No school age children lived in the area which was the subject of the petition. The distance from a point within the subject property to the Ladd school building was nine-tenths of a mile, while the distance to the Dalzell building was 4.9 miles. If the petition were granted, any children living on the property would have to walk to the Ladd school on a blacktop road, as there were no sidewalks in the property. If the children went to the Dalzell school, they would be bussed. If the petition were granted, the boundaries of the districts after annexation would be compact and contiguous. Granfield Acres was located within the boundaries of the village of Ladd. Martin Granfield, one of the owners of territory involved, stated that if the petition were granted, the value of the lots in the Granfield Acres would be increased. Two other residents of the territory involved testified that they had community ties with Ladd.

The Board denied the petition, stating that no students resided in the area, the disparity in distances to the schools was not great, and both schools had qualified teachers and a complete curriculum. The Board also made the following findings: The road to Ladd had no sidewalks or streetlights, and it would be better for the welfare of the children to ride the bus to the Dalzell school. The Ladd district is larger and better off financially than the Dalzell district and the land involved is a substantial percentage of the land in the Dalzell district. The prospective valuation of the land, if developed, would greatly enhance Dalzell. The Board stated it would not be proper for them to jeopardize the existence of a district through a detachment and annexation proceeding. The Board felt the boundary line should not be disturbed.

Under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.), the findings and conclusions of the Board on questions of fact are prima facie true and correct. The factual determinations of the Board will not be set aside on administrative review unless they are shown to be contrary to the manifest weight of the evidence. Board of Education v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 433 N.E.2d 240.

Although the Board felt that detachment would jeopardize the existence of the Dalzell district, the evidence indicated that its loss of present revenue would not exceed $1,000. Moreover, the loss of revenue alone will not prevent redistricting unless the maximum rate is being levied. (Wheeler v. County Board of School Trustees (1965), 62 Ill. App. 2d 467, 210 N.E.2d 609.) The loss of revenue was of only minor significance here. Except as to that loss, no other evidence indicated that detachment would adversely affect the ability of the Dalzell district to meet standards of recognition set by the State.

We also find the Board’s conclusion that a safety factor supported denial of the petition to be of little weight. Some evidence was presented that there were at that time no sidewalks in the subdivision. However, the evidence indicated that the Ladd school house was in sight of the residences in the subdivision, whereas a bus ride of a total length of 10 miles a day would be required to transport the children to and from the Dalzell school. We find no evidence to support the Board’s conclusion that the streets the children from the subdivision would travel upon in the village of Ladd would be unlighted. We deem the Board’s conclusion that the walk to the Ladd school would be more dangerous than a longer bus ride to the Dalzell school to be contrary to the manifest weight of the evidence.

In every other respect the evidence showed that permitting the annexation and detachment would be to the benefit of those living in the area involved. Ladd offered a somewhat more specialized program. It had specialists teaching EE. and band while those teaching the subjects at Dalzell also taught other courses. Only Ladd had a band, a special education teacher's aide, and some departmentalization of its science program in the upper grades. Additionally, at least some evidence was presented that the saleability of the lots in the area would be increased if the prayer of the petition was granted.

The most crucial factor requiring granting of the petition is the location of the tract with reference to Ladd. The record clearly shows that all social, recreation, and business associations for the children and parents who reside in the subdivision is in Ladd. In Board of Education v. Regional Board of School Trustees, the court stated:

“The ‘whole child’ factor and the closely related ‘community of interest’ factor are not improper considerations in determining the wisdom or unwisdom of shifting the boundaries of school districts. The former factor recognizes that extracurricular participation in social, religious and even commercial activities is important in a child’s development as a beneficial supplement to the child’s academic involvement. (School District No. 106 v. County Board of School Trustees (1964), 48 Ill. App. 2d 158.) Too, in annexation-application hearings it is proper to ascertain whether the petitioning area is identified with the school district and the community to which annexation is requested. If a child attends school in his natural community it enhances not only his educational opportunity but encourages his participation in social and other extracurricular activities that figure importantly in the ‘whole child’ idea. The court in Burnidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503, 509-10, stated that more important than benefits of increased safety and savings in transportation costs and time ‘is the fact that an identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area.’ ” 89 Ill. 2d 392, 397-98, 433 N.E.2d 240, 243.

In Newman v. County Board of School Trustees (1974), 19 Ill. App. 3d 584, 312 N.E.2d 35, the Board denied detachment, finding inter alia that the educational welfare of pupils was of greater weight than the school social and business ties of the residents of the area. The circuit court reversed the order as being contrary to the manifest weight of the evidence upon administrative review. The reviewing court affirmed the circuit court with the finding that there was no serious detriment to the district from the land so detached, and that upon the record, annexation would increase participation in school extracurricular and social activities of parents and students.

The court said:

“Where the record shows neither district will be affected in any substantial measure, the determination to grant or deny the petition should be made to turn solely on the welfare of the pupils in the area to be detached. (Bowman v. County Board of School Trustees, 16 Ill. App. 3d 1082, 307 N.E.2d 419.) The beneficial effects of attending a school within close proximity to the student’s home were recognized by this court in Richey v. County Board of School Trustees, 13 Ill. App. 3d 68, 299 N.E.2d 609. Transportation time and costs, fatigue, and exposure to accidents are minimized. Additionally, a child’s identification with a school in his natural community center will lead to increased participation in school activities by the student and his family. The result is a salutary effect upon the educational welfare of the students and the area." (19 Ill. App. 3d 584, 588, 312 N.E.2d 35, 38.)

(See also Kawpas v. Regional Board of School Trustees (1977), 47 Ill. App. 3d 222, 361 N.E.2d 1157, and Board of Education v. Regional Board of School Trustees (1980), 86 Ill. App. 3d 230, 407 N.E.2d 1084.) We conclude that the principle quoted from Newman is entirely consistent with the views found in the supreme court opinion in Board of Education v. Regional Board of School Trustees.

As we have determined that (1) the financial loss to the Dalzell district was negligible, (2) the determination that a safety factor supported denial of the petition was contrary to the manifest weight of the evidence, and (3) in every other respect the evidence clearly showed the people living in the area would clearly benefit by granting the petition, we hold the denial of the petition to be contrary to the manifest weight of the evidence. We reverse the order of the circuit court affirming the denial of the petition and remand to the board of school trustees with directions to grant the prayer of the petition.

Reversed and remanded with directions.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLEN R. KUYKENDALL, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0069
    Opinion filed August 16, 1982.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged by indictment in the circuit court of McLean County with the offenses of home invasion and unlawful restraint in violation of sections 12 — 11 and 10 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 11, 10 — 3). A jury trial was held and at the conclusion of the State’s evidence the trial court directed a verdict of not guilty on the home invasion charge. The jury returned a verdict of guilty on unlawful restraint and after denying a post-trial motion, the court sentenced defendant to an extended term of 6 years’ imprisonment.

The factual basis is relatively uncomplicated. The victim, Darryl Casper, was at home in his apartment on September 15, 1981, with two other persons. At about 11:45 p.m., a group of persons, including the defendant, appeared at the apartment door and asked Casper to come outside; instead, he asked them to come into the apartment. After some further remarks emanating from the group outside, Casper apparently changed his mind and attempted to close the door. One of the group from outside then seized Casper and several of them entered the apartment. Casper fell over a table onto a couch. Two of the persons held onto him by his hair and his arms while a third person struck him with fists and with a chain. Upon their later arrival, police officers observed marks on Casper’s legs, arms, wrist and head. The melee lasted about two minutes and the persons from the group outside left. Defendant was identified as the person doing the striking of Casper.

At the close of the State’s evidence, the trial court, after first indicating his disagreement and disapproval of our opinion in People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489, directed a verdict for the defendant on home invasion for failure by the State to allege “without authority” in the indictment.

On appeal defendant contends that he was not proved guilty beyond a reasonable doubt of unlawful restraint and that the imposition of an extended term was improper because the trial court considered a factor in aggravation which was not extablished by the evidence. By reason of our disposition of the first issue, we need not consider the sentencing matter.

By indicting for both home invasion, a Class X felony, and unlawful restraint, a Class 4 felony, both growing out of a series of closely related acts, it may be inferred that the State was treating unlawful restraint as an included offense and as a fall-back position in the event of the collapse of the home invasion charge in order to obtain a felony conviction. Defendant admits in his brief that he was guilty of battery, a Class A misdemeanor. We believe that the theory arises from too liberal a reading of our opinion in People v. Satterthwaite (1979), 72 Ill. App. 3d 483, 391 N.E.2d 162.

In Satterthwaite we indicated that the gist of unlawful restraint was the detention of a person by some conduct which prevents him from moving from one place to another. The essential requirement of that “conduct” is that it be directly related to the detention and be the cause of the detention. If the detention arises as a result of some other and differently motivated criminal conduct, it is then only derivative and circumstantially related.

Nearly every offense against the person necessarily involves a degree of restraint; for example, a rape precludes mobility; and to take an extreme example, a homicide precludes mobility — a corpse cannot move from one place to another. In the same fashion, certain offenses against property involve restraint; a robber may well hold his victim at bay for a period of time. However, the overriding intent and motivation of the offender is something other than detention. In Sat-terthwaite some further intent might be gleaned from the defendant’s conduct and conversation, but his overt moves were only to detain the victim.

The statute (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3) requires that the detention be done “knowingly”; the home invasion statute (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11) requires that the entry into a dwelling be done “knowingly”; the scienter requirement is quite different in the two offenses. Therefore, unlawful restraint cannot be an included offense of home invasion.

In the instant case the restraint was only incidental to the battery upon Casper; the apparent intent of the defendant and those accompanying him was to enter the dwelling and to commit a battery (or worse). It is also apparent that persons other than defendant were restraining Cas-per. If defendant were guilty at all, it must be on an accountability basis, but no such instruction was given to the jury.

Upon a proper set of facts, unlawful restraint is subject to prosecution along with other offenses. See People v. Velillari (1980), 84 Ill. App. 3d 333, 405 N.E.2d 466, where it was combined with armed robbery, aggravated battery and robbery. In that case the intruders bound and gagged members of the household while they searched for a safe. The restraint was independent of the other offenses and punishable as such.

Defendant’s conviction was not established beyond a reasonable doubt and it is therefore reversed. Since the conviction stands for naught, we need not consider the sentencing issue.

Reversed.

MILLS and LONDRIGAN, JJ. concur.