author: JUSTICE JONES

text:
    DAVID EARL HANES, Plaintiff and Counterdefendant-Appellee, v. ROOSEVELT NATIONAL LIFE INSURANCE COMPANY OF AMERICA, Defendant and Counterplaintiff-Appellant.
    Fifth District
    No. 82—572
    Opinion filed July 21, 1983.

      Michael W. Atkins, of Springfield, for appellant.
    Howard & Howard, of Mt. Vernon (G. W. Howard III, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, David Earl Hanes, brought this action to recover a monthly annuity benefit due him under an annuity policy written by the defendant, Roosevelt National Life Insurance Company of America (Roosevelt). The defendant filed a counterclaim to have the policy reformed because of a scrivener’s error regarding the amount of the monthly benefit due the plaintiff. The trial court entered judgment for the plaintiff, ruling against the defendant on its counterclaim. The defendant contends on appeal that the trial court erred in failing to grant reformation where the evidence showed that the plaintiff intended to purchase a standard annuity policy but, through a clerical error in the defendant’s home office, was issued a policy containing an erroneous annuity refund factor. We find, upon an examination of the record, that the defendant has set forth sufficient facts to justify reformation of the policy in question. We accordingly reverse the trial court’s judgment denying reformation as being against the manifest weight of the evidence.

In December 1974 the plaintiff purchased an annuity policy from Roosevelt known as its “Spirit of ’76 Annuity.” This policy, comprised of three parts, included a retirement annuity, an endowment or investment benefit, and a decreasing term life insurance benefit. In the policy as issued, the annuity refund factor used to compute the monthly income due the annuitant upon retirement was erroneously typed in as $40.79 per $1,000 of cash value at normal retirement age rather than as $5.75 as printed in the table of annuity options contained within the policy. The amount of $40.79 represented the total monthly income due the annuitant when computed with the refund factor of $5.75 per $1,000 of cash value. Upon maturity of the policy in December 1981, the plaintiff sued to enforce the policy as written, contending that he intended to purchase an annuity based on the $40.79 factor and that the mistake, if any, was a unilateral one on the part of the insurer, barring reformation of the policy.

The facts surrounding the execution of the policy are not substantially in dispute. Plaintiff Hanes testified at trial that he met with the defendant’s agent, Kenneth Holland, on one occasion prior to issuance of the policy. At that time he and agent Holland discussed the amount of the life insurance coverage and the cash value of the endowment benefit upon maturity but did not specifically discuss the amount of the monthly annuity payment or the annuity factor used to compute this amount. The plaintiff stated that he did not know prior to delivery of the policy what his monthly annuity payments would be. He understood, however, that he had different settlement options available to him under the annuity and had asked questions concerning these options. By the terms of the policy, the monthly annuity payment would vary depending upon the option chosen.

Based on this information the plaintiff made and signed an application in which he designated the “installment refund annuity” as his settlement option. The policy was delivered to him along with a set of figures which showed the cash value of his annuity after seven years. The plaintiff testified that when he received his policy, he noted the $40.79 refund factor typed on the schedule page of the policy, mentally applied the policy formula, and realized that his benefit would be $270 to $280 per month. He did not refer to the table of annuity options containing the correct factor for his age and annuity option until directed to do so in correspondence with the company in December 1981.

Kenneth Holland, testifying for the defendant, confirmed that he did not specifically discuss the terms of the annuity options with the plaintiff prior to issuance of the policy except to point out to him that there were different options available under the annuity. Holland stated that the transaction in question was unusual in that the plaintiff paid for the policy, which was set up for annual or semi-annual premium payments, with a lump-sum “advance” payment of $11,082. The plaintiff made a down-payment on the policy when he submitted his application and made a final payment six months after the policy took effect.

Roosevelt employee John Schaertl testified that the policy was otherwise a standard policy consisting of retirement annuity, endowment, and life insurance benefits. Under the annuity option specified by the plaintiff in his application, the retirement annuity benefit should have been figured with a refund factor of $5.75 for a total monthly benefit of $40.79. The error in the plaintiff’s policy occurred when the front page of the policy was manually typed from the plaintiff’s application after it had been approved by the defendant’s underwriting department.

At the close of the evidence the trial court ruled for the plaintiff and against the defendant on the defendant’s counterclaim for reformation. The court found that the defendant had failed to prove, as alleged in its counterclaim, the existence of an oral agreement regarding the amount of the monthly payment and a mutual mistake of fact in the policy as written.

On appeal the defendant contends that the evidence clearly showed the parties’ mutual intent that the plaintiff receive the standard monthly benefit under the policy. This intent was manifested, it contends, by the plaintiff’s submission of an application in which he selected the defendant’s “installment refund annuity” as his annuity option and the defendant’s acceptance of this application. Since both parties expected the policy to contain the actuarily correct annuity factor and since the policy as written did not reflect this intent, it is the defendant’s contention that the trial court erred in failing to grant reformation as requested. t

The law is well settled that a court may reform an insurance policy where the contracting parties make a mistake and the policy fails to express the real agreement between them. (State Farm Mutual Automobile Insurance Co. v. Hanson (1972), 7 Ill. App. 3d 678, 288 N.E.2d 523; Stoltz v. National Indemnity Co. (1952), 345 Ill. App. 495, 104 N.E.2d 320.) To reform an insurance policy on the ground of mutual mistake, the party seeking reformation must establish a mutual mistake of fact which was in existence at the time the policy was executed. He must prove, in essence, that both parties intended to say a certain thing but, because of a mutual factual mistake, said something different. (State Farm Mutual Automobile Insurance Co. v. Hanson.) This proof must be of a clear and convincing nature, and a mere preponderance of the evidence is insufficient to justify reformation. 31 Ill. L. & Prac. Reformation of Instruments sec. 17 (1957).

In the instant suit for reformation, the defendant bore the burden of proving the parties’ mutual intent regarding the amount of the monthly benefit due the plaintiff under the annuity. While the evidence showed that the parties did not specifically discuss this amount during negotiations for the policy, the plaintiff made and signed an application in which he requested one of the defendant’s standard annuity options. Witnesses for the defendant testified that the defendant intended to issue a policy in accordance with the plaintiff’s application but that the policy as written contained an error regarding the monthly annuity benefit. Thus, the availability of reformation in the instant case lies in inferring from the plaintiff’s act of applying for the policy an intention to apply for the defendant’s standard policy amount. (See Covington, Reformation of Contracts of Personal Insurance, 1964 U. Ill. L. F. 548, 552-53 (hereinafter Covington, Reformation of Contracts).) We believe, from a consideration of the record and relevant case law, that such an inference is justified in the instant case and that the defendant should have been granted reformation of the policy.

While we have found no Illinois cases in which this approach was expressly adopted, the case of Metropolitan Life Insurance Co. v. Henriksen (1955), 6 Ill. App. 2d 127, 126 N.E.2d 736, provides support for our view that, in a case involving reformation of an insurance policy because of a scrivener’s error, the insured’s intent to obtain a standard policy can be inferred from his act of applying for the policy. In Henriksen the insured had applied for a standard plan of insurance designated in the insurer’s rate book as L.P.R. or “Life with Premium Reduced.” Under this plan the insured had the right to elect one of four mathematically equivalent options at the end of 20 years. In the policy as issued, however, a scrivener’s error in the description of one of the options provided a benefit which was “manifestly incongruous” with the other options.

In holding that there had been a mutual mistake of fact justifying reformation of the policy, the court noted that “the written application executed by the [insured] was never disaffirmed by him” (6 Ill. App. 2d 127, 134-35, 126 N.E.2d 736, 740.) The insurer’s underwriter had approved this application for the plan of insurance designated in the rate book and had issued a policy thereon. The court stated:

“When [the insured] received the policy in response to his application, he either did or did not notice the error. If he did not notice it, the mistake was mutual. If he did notice it and said nothing, he was guilty of such inequitable conduct as to amount to fraud. [Citation].” 6 Ill. App. 2d 127, 135, 126 N.E.2d 736, 740.

The Henriksen court, in reaching this result, relied upon the case of Columbian National Life Insurance Co. v. Black (10th Cir. 1929), 35 F.2d 571. The trial court there had denied reformation of a policy containing an erroneously high cash value, finding that there was insufficient evidence of mistake on the part of the insured to justify reformation. The court on review reversed the trial court’s decree and granted reformation, stating that, despite the insured’s denial of any mistake on his part,

“his actions [spoke] louder than his words. He applied for ah ordinary life policy; without any quibble, and in response to his application, he received a policy that manifestly was in error.” (35 F.2d 571, 574.)

The court, finding that the insured’s intent to purchase a standard policy was manifested by his application, held that the papers in the case “on their face [bore] conclusive proof of a mistake that [could] and should be corrected in equity.” 35 F.2d 571, 574.

The approach of the Black and Henriksen courts has likewise been adopted by courts in other jurisdictions to grant reformation of insurance policies containing erroneously high cash values. (See Home Life Insurance Co. of America v. McCarns (1940), 25 Del. Ch. 220, 16 A.2d 587; Johnson v. Consolidated American Life Insurance Co. (Miss. 1971), 244 So. 2d 400; Schmidt v. Prudential Insurance Co. (1940), 235 Wis. 503, 292 N.W. 447; Stamen v. Metropolitan Life Insurance Co. (1956), 41 N.J. Super. 135, 124 A.2d 328.) In Home Life Insurance Co. v. McCarns the insured had applied for and received a “twenty-payment” life insurance policy for $1,000. The policy when issued contained a cash surrender value that had been erroneously inserted in the policy by one of the insurer’s clerks. The court stated the rule that in order for a written instrument to be reformed, the parties thereto must have reached a complete mutual understanding with respect to all the essential terms of their bargain. The court then declared:

“[The insured] never expressly bargained for, nor had the right to expect *** a twenty-payment life insurance policy for $1,000 that in any way differed from the usual form of policies of that nature issued by the [insurer]. Her application was merely for a “twenty-payment life” policy, which, in the absence of some clearly expressed condition, could only mean a policy of the usual type issued by the company; ***. *** At the age of the insured when this policy was applied for and issued, its correct cash surrender value *** would have been $578; and, regardless of whether, prior to that time, she actually knew what that figure should be, that is precisely the kind of policy she bargained for, and what the annual premiums paid for.” (Emphasis added.) 25 Del. Ch. 220, 225-26, 16 A.2d 587, 589-90.

The plaintiff in the instant case argues that since the defendant’s agent Holland did not specifically discuss the amount of the monthly annuity with him prior to issuance of the policy, there was no original agreement as to the terms of the annuity as required for reformation. As can be seen from the McCarns opinion, this argument misapprehends the nature and effect of the plaintiff’s application for a standard policy. Here, as in McCarns, there was no evidence that the plaintiff bargained for anything other than the standard amount under the defendant’s “installment refund annuity.” The agreement between the parties, therefore, included the terms actually negotiated for and specified in the plaintiff’s application plus those other terms normally included in the type of policy applied for. (See Covington, Reformation of Contracts, at 553; see also Johnson v. Consolidated American Insurance Co.: precise terms of policy were determined when the data shown on the application (face amount of policy, age of insured, amount of premium, and kind of policy) were applied to insurance company’s schedules, tables and policy forms.) Thus, the instant policy can be reformed to reflect this agreement despite the plaintiff’s assertion that he was not aware of the precise terms of the policy prior to its issuance.

In a related argument the plaintiff contends that no contract was formed between the parties until he received the policy in question and accepted it by remitting his premium payment. He contends, therefore, that the policy as written contained the agreement of the parties and that he intended to purchase the amount of the annuity shown on the face of the policy. This argument, too, ignores the fact of the plaintiff’s application for a standard policy and the company’s issuance of a policy pursuant to that application. The plaintiff’s application constituted an offer or proposal for a contract of insurance. (See 44 C.J.S. Insurance sec. 232(b) (1945); 22 Ill. L. & Prac. Insurance sec. 146 (1956).) When the defendant approved this application and issued its policy, it manifested its intention of accepting the application as made. There was, at that time, a meeting of the minds — an agreement to issue the policy applied for. (See Columbian National Life Insurance Co. v. Black; Johnson v. Consolidated American Life Insurance Co.; Schmidt v. Prudential Insurance Co.) Since the existence of the contract did not depend upon the plaintiff’s receipt or acceptance of the policy itself (see Columbian National Life Insurance Co. v. Black) the contract between the parties consisted of the standard terms of the annuity applied for and was not altered by the erroneous amount typed within the policy.

The plaintiff contends that any mistake in drafting the instant policy was a unilateral mistake on the part of the insurer that would preclude reformation of the policy. It is an often stated requirement that to justify reformation the mistake must be mutual rather than unilateral. While some courts have held in analogous situations that a scrivener’s error such as that here involved is a unilateral mistake barring reformation (Yablon v. Metropolitan Life Insurance Co. (1946), 200 Ga. 693, 38 S.E.2d 534; Woodmen of the World Life Insurance Society v. Arnold (1960), 194 Pa. Super. 256, 166 A.2d 290), this result stems from an erroneous emphasis upon the mistaken “act” of the insurer’s draftsman in inserting the incorrect figure in the policy, whereas the issue is properly one of the mistaken belief of the parties regarding the correctness of the written instrument. (See Covington, Reformation of Contracts, at 549-50; 17 Couch, Insurance sec. 66:51, at 286 (2d ed. 1967); see also Travelers Insurance Co. v. Bailey (1964), 124 Vt. 114, 197 A.2d 813.) In the instant case our decision is premised, not on the defendant’s error in entering the wrong annuity refund factor on the schedule page of the plaintiff’s policy, but on the parties’ mutual intent and belief that the policy as issued corresponded to that applied for by the plaintiff. Cf. Woodmen of the World Life Insurance Society v. Arnold: error was unilateral on part of insurer where nothing to show that insured participated in preparation of policy or insertion of figures on face of policy; Yablon v. Metropolitan Life Insurance Co.: no mutual mistake where insurer’s typist bore full responsibility for error in policy.

Because of the view of mistake we have adopted herein, we decline to follow the reasoning of the court in Kaufman v. New York Life Insurance Co. (1934), 315 Pa. 34, 172 A. 306, which the plaintiff cites in support of his position. The court there reversed the trial court’s decree granting reformation of a life insurance policy containing an erroneously high cash surrender value. Although the trial court had found that a mutual mistake existed because “ ‘both parties *** contracted with reference to the [insurer’s] existing published rates, and both intended that the policy as issued and delivered should conform to such rates ***’ ” (315 Pa. 34, 36, 172 A. 306, 306), the reviewing court held that the insured must have had a “particular” intent regarding the cash value of the policy at the time the contract was made. Since there was no indication that the insured knew what his cash value was to be when he applied for the policy in question, the court refused to reform the policy to accord with the insurer’s standard rates.

To the extent the Kaufman holding would require parties to an insurance contract to reach a specific agreement regarding each term of a policy before a binding contract is formed, we believe it is at variance with the more commonly held view regarding insurance contracts. The court in Schmidt v. Prudential Insurance Co. of America observed that,

“ ‘[w]hile insurance in legal theory and in fact rests upon contract, in common practice it is dealt with more as if it were a commodity kept for sale. This attitude of mind *** is due no doubt in large part to the standardization of insurance policies by legislative enactment and by long-continued practice. The customer specifies the amount and kind of insurance he wishes to purchase, [and] the representative of the insuring company undertakes to comply with the request. The terms of the contract are largely statutory. The details fall into certain categories. All parties to the transaction understand what is intended, and evidence relating to the transaction cannot therefore be tested by the rules that would apply to a negotiation respecting a fresh transaction, the details of which were to be worked out and agreed upon in the course of the negotiation and set forth in a writing between the parties.’ ” 235 Wis. 503, 515, 292 N.W. 447, 452.

Due to this standardized nature of insurance policies, the intent of an insured regarding the specific terms of a policy can be inferred from the fact of his application for a particular type of policy. (See Covington, Reformation of Contracts, at 553.) Surely the plaintiff in the instant case, in designating the type of settlement option he desired under the annuity applied for, expected the correct figures to be supplied in the policy as issued. He would not have intended the policy to vary from standard terms in a way detrimental to him, nor can he reasonably expect to be given advantages or benefits for which he has neither bargained nor paid. Thus, reformation of the instant policy will give the plaintiff a benefit which he could expect to receive under the annuity option chosen and one which is commensurate with the premium paid.

The facts of the instant case sufficiently establish the parties’ prior agreement regarding the monthly benefit to be received under the annuity and a variance in the policy as written. We find, therefore, that the trial court erred in failing to grant reformation as requested in the defendant’s counterclaim, and we accordingly reverse the judgment of the circuit court of Jefferson County.

Reversed.

WELCH and EARNS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY BRADSHAW, Defendant-Appellant.
    Fourth District
    No. 4—83—0012
    Opinion filed July 20, 1983.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and Thomas W. Lacy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On January 4, 1983, following a bench trial in the circuit court of Morgan County, defendant, Roy Bradshaw, was convicted of disorderly conduct (Ill. Rev. Stat. 1981, ch. 38, par. 26—1(a)(1)) and sentenced to five days’ imprisonment. On appeal he maintains his conviction should be reversed because his actions did not “provoke” a breach of the peace. We agree and reverse the defendant’s conviction.

Section 26—1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 26—1(a)(1)), under which defendant was charged, provides that one type of disorderly conduct occurs when one knowingly acts “in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.” In People v. Trester (1981), 96 Ill. App. 3d 553, 421 N.E.2d 959, this court determined that section 26—1(a)(1) indicates that the prohibited conduct must actually bring about a breach of the peace and not merely tend to do so.

Moreover, in People v. Douglas (1975), 29 Ill. App. 3d 738, 742-43, 331 N.E.2d 359, 363, the court stated:

“Vulgar language, however distasteful or offensive to one’s sensibilities, does not evolve into a crime because people standing nearby stop, look, and listen. The State’s concern becomes dominant only when a breach of the peace is provoked by the language.”

The record in this case does not indicate that the defendant’s vulgar language provoked a breach of the peace.

Charles Aufdenkamp, the manager of a bar in Jacksonville, testified at trial that on October 8, 1982, after he had asked the defendant to leave the bar, the defendant “went out [the] front door *** and *** called [Aufdenkamp] all kinds of obscene names for ten to fifteen minutes duration.” Steven Boulis, a bartender, testified that the defendant did not leave the bar until he (defendant) saw Boulis calling the police. A Jacksonville police officer, Steven Poole, testifying for the defense, stated that when he arrived the defendant was approximately one-half block from the tavern.

Unlike in People v. Davis (1980), 82 Ill. 2d 534, 413 N.E.2d 413, cited by the State, defendant did not threaten anyone. No group gathered around defendant and Aufdenkamp in a threatening manner as in City of Chicago v. Morris (1970), 47 Ill. 2d 226, 264 N.E.2d 1. That defendant’s conduct was nothing more than annoying is indicated by the lack of evidence that anyone left the tavern as a result of defendant’s conduct.

As stated in Trester, the general trend of the cases has been for courts to give a narrow construction to the offense of disorderly conduct. When the conduct of a patron of a private establishment is merely annoying customers and that patron refuses the demand of the proprietor to leave the establishment, the charge of criminal trespass to land is the proper charge to make. (Ill. Rev. Stat. 1981, ch. 38, par. 21—3.) The existence of that offense affords protection to both the proprietor and the patrons of such an establishment. In this case, because there is no evidence indicating that the defendant’s actions provoked a breach of the peace, the defendant’s conviction for disorderly conduct cannot stand.

For the reasons stated herein, we reverse.

Reversed.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE MILLS

text:
      In re MARRIAGE OF PATSY G. DEWHURST, Petitioner-Appellee, and JAMES V. DEWHURST, Respondent-Appellant.
    Fourth District
    No. 4—83—0047
    Opinion filed July 18, 1983.

      Costello, Long, Young & Metnick, of Springfield, for appellant.
    Theodore J. Harvatin, of Gramlich & Morse, of Springfield, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Foreign judgment.

Suit #1: James filed for marriage dissolution in California, an interlocutory judgment was issued, and it became final six months later in 1973. James moved from California to Illinois, then back to California, and again back to Illinois.

Suit #2: September 1977, Patsy attempted to modify the California judgment but was unsuccessful because the California court ruled it had no jurisdiction.

Suit #3: October 1978, Patsy filed an independent action in California to modify the dissolution judgment. A judgment by default was entered on February 2, 1978, awarding Patsy a percentage of James’ military retirement benefits.

Suit #4: November 1978, Patsy filed a complaint for judgment in Sangamon County, Illinois, and a petition to register the foreign judgment. James filed an answer and an amended answer. On November 9, 1979, Judge Londrigan entered an order registering the California default judgment for $16,006.40 and entered a judgment order for the same amount. On October 20, 1982 (35 months and 11 days later!), James filed a motion to vacate judgment, declare judgment void, and expunge judgment from the record. He alleged that (1) the California default judgment was void because no personal jurisdiction had been obtained over him, and (2) the California court did not have subject matter jurisdiction over his military retirement benefits because that subject matter had been preempted by Federal law.

Judge Cadagin denied the motion to vacate.

James appeals.

We affirm.

James waived his opportunity to challenge the validity of the California default judgment. His answer here merely denied the allegations of the complaint for judgment to be entered in Illinois and set forth an affirmative defense based on fraud. A motion to strike the affirmative defense was allowed and James was granted 28 days to file an amended pleading. This he did, in the form of a first amended answer. This document, also, was in the form of a general denial of the allegations of the complaint. Five months later the case was heard on the complaint and amended answer and Judge Londrigan — on November 9, 1979 — ordered that the California judgment be duly registered and “further ordered that judgment is entered against defendant for the sum of sixteen thousand six dollars and forty cents (figures) and costs of suit.”

Section 12—607 of the Code of Civil Procedure, dealing with “Foreign Judgments” (Ill. Rev. Stat. 1981, ch. 110, par. 12—607, formerly Ill. Rev. Stat. 1979, ch. 77, par. 94), provides as follows:

“New personal judgment. If after personal service of process upon him or her within this State the judgment debtor fails to plead within the time specified in the summons served upon him or her, or in any event within 30 days after jurisdiction of the person of the judgment debtor has been obtained, or if the court after hearing has refused to set aside the registration, the registered judgment shall become a final judgment of the court in which it is registered, binding personally upon the defendant.”

Clearly, after the hearing on the complaint, petition, and amended answer, the Illinois court had entered a new personal judgment in the State of Illinois. And it was a final and appealable order.

In Employers’ Liability Assurance Corp. v. Coronet Insurance Co. (1969), 106 Ill. App. 2d 24, 35, 245 N.E.2d 629, 634, our brothers of the Third District said:

“The judgment in the cause before us was registered by the filing of the petition. Following a hearing, the court entered a new personal judgment in accordance with the prayer of the petition, having found that there was no reason to set aside the registered judgment. The judgment, therefore, became final and appealable. The complaint prayed for a new Illinois judgment based upon the judgment of Louisiana. Such right of action exists under the laws of the State of Illinois.”

We are in total agreement with this articulation.

Furthermore, section 2—1401 of the Code provides that relief from a judgment after 30 days from entry must be filed not later than two years from said entry.

The Illinois judgment was a new, personal one against James. It was a final and appealable one which he did not seek to have reviewed. He may not now — three years later — be heard to raise matters in defense which could and should have been raised prior to the entry of the Illinois judgment.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
      In re ESTATE OF JOSEPH E. CONKLIN, Deceased—(Towne Realty, Inc., Claimant-Appellee, v. James Oliver Conklin, Ex’r of the Estate of Joseph E. Conklin, Deceased, Respondent-Appellant).
    Fourth District
    No. 4—82—0729
    Opinion filed July 20, 1983.
    Robert S. O’Shea, of Free & Free, of Springfield, for appellant.
    Mark Rabin, of Springfield, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This appeal has been taken by decedent’s executor from an order of the circuit court of Sangamon County, sitting in probate, which allowed the claim of Towne Realty, Inc. (claimant), against the estate of the decedent.

An agreed statement of facts has been submitted in lieu of a record pursuant to Supreme Court Rule 323(d) (87 Ill. 2d R. 323(d)). In summary it indicates that the claimant operated an apartment building in Springfield known as Lincoln Towers Center and that decedent leased an apartment therein for a term of one year commencing September 1, 1980. A copy of the lease was received into evidence. The decedent died in March 1981 and shortly thereafter his executor removed his furniture and personal effects from the apartment; decedent’s rent was fully paid up to the date of his death and he was in full compliance with all the covenants in the lease. The apartment was eventually rented in August 1981; other apartments in the same building had been rented by claimant’s manager before that date. The judgment on the claim was for rent due from the time of decedent’s death until claimant obtained a new tenant after giving credit for a portion of the security deposit made by decedent.

Two issues are presented for our consideration: (1) whether decedent’s death terminated the lease as a matter of law, and (2) assuming arguendo that it did not, whether the claimant was under a duty to mitigate damages.

As to the first issue, there appears to be a dearth of authority in this State. The question arose obliquely in Collins v. Northern Trust Co. (1965), 63 Ill. App. 2d 83, 211 N.E.2d 608. In that case the decedent had entered into a one-year lease for an apartment and died during the term. The landlord filed a claim against the estate and the trial court entered judgment in favor of the landlord for the entire rent from decedent’s death to the expiration of the lease. The appellate court reversed, holding that certain contingencies in the lease, such as fire, explosion, or other casualty, would abate the rent and therefore judgment for the entire amount was improper. The decision turned largely on the mechanics of making claims for rent while contingencies existed and apparently the question of termination of the lease was not argued to the court. In the instant case, no such contingencies are present since the claim was not made until after the expiration of the lease by its own terms.

The general rule is found in 51C C.J.S. Landlord and Tenant sec. 92 (1968). It is there stated that a lease is not terminated by the death of the lessor or the lessee unless the rule is altered by statute or by the terms of the lease; the latter may be either expressly stated or the nature of the lease and the peculiar qualifications of the lessee may make the lease personal to the lessee and thus operate to terminate it at his death.

In the case at bar the executor has cited a number of cases from sister jurisdictions, all of which fall under the latter category of the C.J.S. rule stated above, and thus are distinguishable. In Warnecke v. Estate of Rabenau (Mo. App. 1963), 367 S.W.2d 15, the lease was for office space to be used for the specific purpose of the business of the lessee, a public accountant; the term “lessee” was defined to include servants, employees, and clients, but did not include successors, assigns, heirs, or personal representative. The Missouri court concluded that the terms of the lease made it personal to the lessee and thus terminated on his death. The court acknowledged the general rule that death does not ordinarily terminate the lease. It quoted from an earlier Missouri case, McDaniel v. Rose (Mo. App. 1941), 153 S.W.2d 828, holding that the usual presumption is that the parties intend to bind their personal representatives unless the acts to be performed are of a strictly personal nature or depend upon the continued existence of a particular person or of a particular condition or status which goes to the very essence of the contract. In McDaniel the lease was for advertising signs for the decedent’s business, a drugstore, which could only be conducted by the decedent.

Two later Missouri cases (In re Estate of Church (Mo. App. 1973), 504 S.W.2d 214; In re Estate of Lewis (Mo. App. 1973), 492 S.W.2d 385) distinguished WarnecJce. In both cases residential leases were involved and provided that they were binding upon the heirs, executors, administrators, successors and assigns of both parties. The court held that this language was clear and unambiguous and that the leases were not personal.

In our opinion the lease in the instant case falls well within the ambit of the general rule of nontermination; it has no specific provision regarding termination by death; it is an ordinary residential lease; in fact, it is a printed form presumably used for all tenants of the claimant; and there is nothing in the record to indicate that the decedent possessed personal qualifications or characteristics which might make the lease personal to him. Furthermore, it is specifically made assignable with the consent of the lessor and is binding upon the successors, assigns, personal representatives and legal representatives of the parties. The executor argues that these provisions made the lease sufficiently restrictive so that it becomes personal to the lessee. We do not agree. These are standard provisions in nearly all leases. Their absence would create a stronger argument in favor of the personal nature of the lease. Warnecke; McDaniel.

The question of a lessor’s duty to mitigate damages appears unsettled in this State. (See generally Bulkeley, Does a Landlord Have a Duty to Mitigate Damages When a Tenant Abandons During the Lease? 68 Ill. B.J. 588 (1980).) The three lines of authority are well summarized in Chicago Title & Trust co. v. Hedges Manufacturing Co. (1980), 91 Ill. App. 3d 173, 414 N.E.2d 232: (1) no obligation whatever; (2) the general contract rule that the wronged party may not sit idly by and allow damages to accumulate; and (3) no general obligation to mitigate but only a duty to accept a suitable subtenant when offered.

The executor argues that the common thread throughout all of the prior authority is a wrongful abandonment by the tenant and that such was not the case here; the abandonment was involuntary, the result of the death of the tenant. From this premise, he deduces that an obligation is imposed on the landlord to mitigate. We fail to discern the difference. Whether the abandonment finds its origin in the wrongful act of the tenant or in his involuntary act of death, it is not the result of anything done by the landlord, and he stands deprived of his rent to which he is entitled under the contract which, as we have already held, was not terminated by the tenant’s death.

We believe that the third line of cases summarized in Chicago Title & Trust Co. and accepted by that court as the most recent authority represents the better view:

“While we are inclined to follow the rule as to mitigation set out in Yelen and Muntz TV, Inc., where a suitable tenant is offered by the original lessee, we think the burden of proof is on the tenant to show that the substitute tenant is reasonably suitable. It is not the duty of the landlord either to seek out a suitable tenant or to make investigations as to the suitability of a prospect referred to him by the tenant. Resser v. Corwin (1897), 72 Ill. App. 625; Reget v. Dempsey-Tegeler & Co., Inc. (1968), 96 Ill. App. 2d 278.” 91 Ill. App. 3d 173, 177, 414 N.E.2d 232, 235.

The record here is devoid of any indication that the executor sought out or presented to the claimant any prospect as a subtenant.

In the conclusion of its brief before this court the claimant asks that we remand to the trial court for the assessment of attorney fees provided in the lease. Two insuperable obstacles lie in the path of such procedure: (1) the matter was never raised initially in the trial court, and (2) the lease provides for “remedies as may be available to the Lessor under the several laws of Wisconsin.”

The judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HAZEL JACKSON, Defendant-Appellee.
    First District (4th Division)
    Nos. 81—2832, 81—2833 cons.
    Opinion filed July 7, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Raymond Brogan, Assistant State’s Attorney, of counsel), for the People.
    Freddrenna M. Lyle, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court granted a motion to suppress the defendant’s bank records obtained through a grand jury subpoena served on her Illinois bank. The court held that the subpoena violated the defendant’s constitutional right to privacy by an unreasonable seizure of her bank records. The State appeals this ruling.

On December 6, 1978, the defendant, Hazel Jackson, was fired from her job as a closing officer at Intercounty Title Company. On December 12, 1979, an employee of Intercounty phoned the State’s Attorney’s office of Cook County and related his suspicions that the defendant had been involved in an embezzlement scheme. On May 14, 1980, the State’s Attorney’s office approved the issuance of a grand jury subpoena duces tecum to the defendant’s bank, the Central National. The subpoena directed the bank to turn over the defendant’s records covering the period from August 1977 to October 26, 1979. Nine months later, on February 27, 1981, the Cook County grand jury returned an indictment against the defendant charging her with theft in that she was unlawfully receiving unemployment benefits while still employed.

On May 21, 1981, the defendant filed her motion to suppress the subpoena. The motion alleged that there had been an unreasonable seizure of her bank records under the Illinois Constitution; that the subpoena had not been properly authorized by the grand jury; that the subpoena was not served with notice to her as a bank customer pursuant to the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16½, par. 148.1(d)(1)); and that the subpoena was unreasonably broad in scope.

During the hearing on the motion to suppress, it was stipulated that there was no evidence that the State’s Attorney’s office had appeared before the grand jury or before any judge to request the issuance of the subpoena; that the grand jury docket for the relevant dates contained no information regarding the issuance of this subpoena; that the assistant State’s Attorney handling the investigation did not recollect appearing before the grand jury to obtain the subpoena; that the official shorthand reporter assigned to record the grand jury proceedings of May 14, 1980, had no record of any testimony being presented to that body regarding the issuance of a subpoena to Hazel Jackson’s bank; and that the defendant had received no notification that a subpoena had been issued for her bank records.

Rights of privacy are protected against unreasonable searches and seizures under both the Federal and State constitutions. (Katz v. United States (1967), 389 U.S. 347, 350, 19 L. Ed. 2d 576, 581, 88 S. Ct. 507, 510; Ill. Const. 1970, art. I, sec. 6.) The first question is whether there is a right of privacy in the bank records. If there is, she has standing to make the motion to suppress the evidence. The second question then becomes whether the seizure was reasonable or unreasonable under the Federal and State constitutions.

The defendant concedes that under United States v. Miller (1976), 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619, the United States Supreme Court decided under circumstances substantially similar to those here that there is no privacy right in bank records and consequently the defendant there had no standing. Jackson contends that if Miller is applied the motion to suppress should be denied. However, she contends that the Illinois courts may set a higher standard under the Illinois constitutional provisions against unreasonable search and seizure as other States have done.

In Miller, the defendant, like the defendant here, had been charged with various Federal offenses and had made a pretrial motion to suppress his bank records. He contended that his records had been illegally seized by subpoena duces tecum in violation of the fourth amendment. The court of appeals concluded that the subpoenaed documents fell within a constitutionally protected zone of privacy. The Supreme Court held that the defendant possessed no privacy interest in the bank records that could be vindicated by a challenge to the subpoena. The Supreme Court reasoned that the subpoenaed materials were business records of the bank, not the defendant’s private papers; that there is no legitimate “expectation of privacy” in the contents of original checks and deposit slips because these are not confidential communications but negotiable instruments used in commercial transactions; that the fourth amendment does not prohibit the obtaining of information voluntarily conveyed to a third party which the third party then turns over to government authorities; and that the issuance of a subpoena to a third party does not violate a defendant’s rights even if a criminal prosecution is contemplated at the time the subpoena is issued.

Jackson argues that she has a right of privacy in her bank records under article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6) and a right to privacy and notice under section 141.1(d)(1) of the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. I6V2, par. 148.1(d)(1)). A State may of course set a higher standard of rights than the comparable United States constitutional right. (See Cooper v. California (1967), 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788.) Colorado, California and Pennsylvania rejected the rationale of Miller and held that there was a privacy right in bank records and consequently there was standing. Charnes v. Di Giacomo (1980), 200 Col. 94, 612 P.2d 1117; Commonwealth of Pennsylvania v. DeJohn (1979), 486 Pa. 32, 403 A.2d 1283; Burrows v. Superior Court (1974), 13 Cal. 3d 238, 529 P.2d 590.

The facts in the three cases cited above closely parallel the facts in the instant cause. In each situation, the petitioner moved to suppress the production of his/her bank records which had been subpoenaed from the bank pursuant to a State investigation of his/her financial activities. The State supreme court, in each case, considered and rejected an application of Miller holding that their respective State constitutions recognized a reasonable expectation of privacy in bank records which could only be intruded upon by a valid subpoena.

These courts rejected the rationale in Miller because it relies for its analysis of an expectation of privacy upon the ownership and possession of the records and not the reasonable expectations of the individual. The State courts accepted the fourth amendment test set out in Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, which provides protection for “people not places.” (Cf. W. LaFave, Search & Seizure sec. 2.7, at 411 (1978); 14 San Diego L. Rev. 414 (1977); 83 Yale L.J. 1439 (1974).) Under Katz, the fourth amendment gives protection for an individual’s reasonable expectation of privacy which is not bound by the location and present ownership of the records. Consequently, the right to privacy is not waived by placing these records in the hands of a bank. The individual can still legitimately expect that her financial records will not be subject to disclosure. See Burrows v. Superior Court (1974), 13 Cal. 3d 238, 529 P.2d 590.

Unlike the State constitutions in California, Pennsylvania and Colorado, our Illinois constitution has a privacy provision which expressly grants our citizens protection from an unreasonable invasion of their privacy. Article I, section 6 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 6) is entitled “Searches, Seizures, Privacy and Interceptions” and provides:

“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” (Emphasis added.)

The Constitutional Commentary on this provision explains, “Section 6 expands upon the individual rights which were contained in Section 6 of Article II of the 1870 Constitution and the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution.” (Ill. Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional Commentary, at 317 (Smith-Hurd 1971).) The Commentary also states that "the protection against ‘invasion of privacy’ is new and is stated broadly. No definition of types of privacy is offered.” Ill. Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional Commentary, at 317 (Smith-Hurd 1971).

In reliance upon this express proscription against invasion of privacy in Illinois and influenced by the Commentary, which suggests that this protection should be broadly applied, we are led to conclude that the Illinois Constitution offers protection for the reasonable expectation of privacy which our citizens have in their bank records.

We believe that it is reasonable for our citizens to expect that their bank records will be protected from disclosure because in the course of bank dealings, a depositor reveals many aspects of her personal affairs, opinion, habit and associations which provide a current biography of her activities. Such a biography should not be subject to an unreasonable seizure by the State government. Furthermore, we reject the idea set out in Miller that a citizen waives any legitimate expectation in her financial records when she resorts to the banking system. Since it is virtually impossible to participate in the economic life of contemporary society without maintaining an account with a bank, opening a bank account is not entirely volitional and should not be seen as conduct which constitutes á waiver of an expectation of privacy. See Burrows v. Superior Court (1974), 13 Cal. 3d 238, 529 P.2d 590.

Having decided that there is a constitutional right of privacy in Illinois in a person’s bank records, the second aspect of the constitutional problem comes into focus; that is, has there been an unreasonable seizure in violation of that person’s legitimate expectation of privacy in those bank records. Even with a right of privacy in bank records guaranteed by the Illinois Constitution, the protection is only against unreasonable search and seizures and not reasonable ones. See LaFave, Search and Seizure sec. 4.12(e), at 207 (1978).

When dealing with subpoenas, the determination as to what is a reasonable search and seizure is made by balancing the public interest against the individual’s need for private security. (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494.) Where the government seeks to compel disclosure of private records, a person’s privacy interest in nondisclosure must be balanced against the interest of the public in having effective grand jury investigations. In Illinois, the grand jury has been endowed with broad investigative powers. (Ill. Rev. Stat. 1981, ch. 38, par. 112—4(b); People v. Allen (1951), 410 Ill. 508, 103 N.E.2d 92, cert. denied (1952), 344 U.S. 815, 97 L. Ed. 635, 73 S. Ct. 9; People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 396 N.E.2d 17, aff'g in part and rev’g in part (1978), 64 Ill. App. 3d 239, 380 N.E.2d 1150.) However, when these investigations infringe on a person’s protected right of privacy, the reasonableness of the intrusion is tested by the validity of the subpoena.

Although a subpoena is a constructive search presenting no question of an actual search or seizure (see People v. Allen (1951), 410 Ill. 508, 103 N.E.2d 92, cert. denied (1952), 344 U.S. 815, 97 L. Ed. 635, 73 S. Ct. 9), two guidelines have been followed by the courts in determining whether the intrusion into a person’s privacy is a reasonable intrusion and whether the subpoena is valid: (1) the document sought must be relevant to the inquiry and (2) a specification of the document to be produced must be adequate but not excessive for the purpose of the relevant inquiry. (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494; People v. Lurie (1968), 39 Ill. 2d 331, 235 N.E.2d 637.) Only after applying these guidelines should a court determine whether a valid subpoena has been issued which is able to withstand a motion to suppress. People ex rel. Legislative Commission on Low Income Housing v. Keefe (1967), 36 Ill. 2d 460, 223 N.E.2d 144.

When these two guidelines are applied to the subpoena at issue here,' we find that the intrusion into Jackson’s bank records was reasonable. The subject of the grand jury’s investigation was Jackson’s unlawful receipt of State of Illinois employment security benefits while still gainfully employed. Her financial records for the period of time under investigation were subpoenaed from Central National Bank. Such financial records were obviously relevant to this investigation. Furthermore, Jackson asserted that the subpoena was overly broad, but presented no evidence to show why it was excessive and why certain documents should have been excluded. She thus failed to carry her burden of proof as to excessiveness. Therefore, we conclude that this subpoena in fact met the two guidelines of relevancy and nonexcessiveness and was valid.

Jackson raises two further issues. The trial court had found that the grand jury did not in fact cause the subpoena to issue because the grand jury docket does not record the issuance of the subpoena. There is no statutory requirement that a docket entry be made or a record kept and transcribed of requests by the State for grand jury subpoenas. Section 112—7 of the Code of Criminal Procedure of 1963 provides only that the testimony of witnesses before the grand jury be transcribed. (Ill. Rev. Stat. 1979, ch. 38, par. 112—7.) Accordingly, the record does not support the conclusion reached by the trial court that the subpoena was never authorized. See People v. Haag (1979), 80 Ill. App. 3d 135, 399 N.E.2d 284.

Jackson’s final argument is that she was entitled to notice of the subpoena under the Illinois Banking Act. The notice provision that was in effect at the time the subpoena was issued is as follows (Ill. Rev. Stat. 1981, ch. 17, par. 360(d)):

“A bank shall disclose financial records *** pursuant to a lawful subpoena, summons, warrant or court order only after the bank mails a copy of the subpoena, summons, warrant or court order to the person establishing the relationship with the bank ***.”

We do not agree that this notice provision provides Jackson with grounds to suppress the subpoena of her bank records. The statute by its terms only tries to set out the obligations which a bank owes to its bank customers. These are the obligations of confidentiality and the obligation of notice to a customer if this confidentiality is abridged. The statute does not attempt to regulate governmental intrusion into a customer’s confidential bank owes to its customers. These are the obligations of confidentiality and the obligation of notice to a customer if this confidentiality is abridged. The statute does not attempt to regulate governmental intrusion into a customer’s confidential bank records. Thus relying solely upon this statute, Jackson cannot attempt to suppress a governmental subpoena or claim the right to notice when one is issued.

For the above reasons, we reverse the order of the circuit court granting the motion to suppress the subpoena.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE O’CONNOR

text:
    DAVID F. ROGERS, Plaintiff-Appellee, v. THE VILLAGE OF TINLEY PARK et al., Defendants-Appellants.
    First District (1st Division)
    No. 82—0385
    Opinion filed June 30, 1983.

      John B. Murphey, of Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago, for appellants.
    Murphy, Preston & Jaffe, of Chicago (James P. Elannery, Jr., and Lee Preston, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, David E Rogers, filed an action for declaratory judgment to determine his right to serve as an elected village trustee of defendant village of Tinley Park, while also serving as a police officer on leave of absence status with the same municipality. Rogers and the village filed cross-motions for summary judgment. Although Rogers named other parties as defendants in his action, the only parties before this court are the plaintiff Rogers and the defendant village. The trial court granted plaintiff’s motion and denied that of the village, holding that plaintiff had the right to serve in both capacities. The village appeals, contending that the positions of village trustee and police officer are incompatible and that plaintiff’s acceptance of the position of village trustee automatically resulted in his resignation as a police officer.

The village of Tinley Park is a home rule municipality, governed by a legislative body consisting of an elected village president and six elected individual trustees, known collectively as the board of trustees. The board has the legislative responsibility for governing the village, including regulation of all village officers and employees.

Plaintiff has been a village police officer since 1973. In March 1981 his rank was patrol officer. On January 12, 1981, Rogers requested a leave of absence from the police department from February 15 through March 31, 1981, for the reason that he intended to run for public office in the April 1981 election. The police chief orally approved his request the next day.

On January 20, 1981, plaintiff met with the village manager, Dennis Kallsen, who told him that because of a lack of consistent application of the department’s rule relating to “political utilization of official positions” it would not be necessary for Rogers actually to take a leave of absence during his candidacy. On that date Rogers withdrew his request for a leave of absence and the village manager formally approved that withdrawal. He advised Rogers that an employee could run for political office as long as no campaigning was done on duty and any campaigning done had to be done out of uniform. He also advised Rogers as to the mechanics of a request for leave of absence and that, if an extended leave were granted, it would be without pay, but that the employee would be allowed to remain under the village’s group insurance policy if the employee paid the premium, and that the extended leave time would be viewed as creditable service for seniority purposes.

Rogers was elected village trustee at the April 7, 1981, election. On April 21, 1981, the village attorney answered an inquiry from the president and board of trustees as to whether Rogers may continue to be employed as a village police officer subsequent to the time he qualifies to hold the office of village trustee:

“In my opinion, Trustee-elect Rogers may not continue to be employed as a Village police officer after he qualifies to hold the office of Village Trustee. Further, Trustee-elect Rogers’ act of qualification, ipso facto, operates as a resignation from his employment as a police officer.”

On April 28, 1981, approximately one week prior to his qualification and assumption of duties as trustee on May 5, 1981, Rogers requested that the chief of police grant him a one-year leave of absence effective May 5, 1981, through May 4, 1982, to assume his trustee duties. The chief of police responded by letter dated April 29, 1981. Based on the village attorney’s opinion, the chief concluded that a leave of absence could not be granted to a person who had resigned from the police department.

On May 5, 1981, Rogers was sworn in as village trustee and assumed the duties of that office. On May 6, 1981, the chief of police wrote Rogers and formally acknowledged his automatic resignation.

Rogers filed a complaint for a declaratory judgment that he had not voluntarily or automatically resigned from his position as a police officer and that he could lawfully serve as village trustee while a police officer on leave of absence. The village’s answer alleged facts demonstrating the incompatibility between the two positions. Based on these facts, the village moved for summary judgment. Rogers filed a cross-motion for summary judgment, contending that (1) the common law- doctrine of incompatibility affects only officers and has no application to.municipal employees such as Rogers; (2) there is no statute or constitutional provision prohibiting the holding of both the office of trustee and the status of an employee on leave of absence; and (3) there are insufficient conflicts between the positions of trustee and policeman on leave to invoke the doctrine of incompatibility.

The trial court granted plaintiff’s motion and denied defendant’s motion. It based its judgment on a ground neither raised nor argued by either party, holding that the application of the incompatibility rule would result in an unconstitutional “chill” on Rogers’ first amendment right to seek and hold elective public office. On appeal, Rogers makes no attempt to uphold the trial court’s judgment on that ground, stating that while he agrees with the trial court’s decision, he would reach it for different reasons.

The village argues that (1) the positions of police officer and village trustee are incompatible; (2) a police officer is an “officer” within the proscription of sections 3—4—3 and 3—14—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, pars. 3—4—3, 3 — 14—1); and (3) section 3 of the Corrupt Practices Act (Ill. Rev. Stat. 1979, ch. 102, par. 3) prohibits plaintiff from holding both positions. We find it necessary to consider only the first argument.

The doctrine of incompatibility is succinctly stated in People v. Haas (1908), 145 Ill. App. 283, 286-87:

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

See also People ex rel. Petka v. Bingle (1983), 112 Ill. App. 3d 73, 445 N.E.2d 941.

The elements of the doctrine of common law incompatibility are stated in 63 Am. Jur. 2d Public Officers and Employees sec. 73 (1972):

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

and in section 74:

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

While the question of the incompatibility of the positions of police officer and member of the municipal legislative body has not been considered in Illinois, it has been decided adversely to plaintiff’s contentions in three cases arising in New Jersey.

In O’Connor v. Calandrillo (1971), 117 N.J. Super. 586, 285 A.2d 275, affirmed (1972), 121 N.J. Super. 135, 296 A.2d 326, cert. denied (1973), 62 N.J. 193, 299 A.2d 727, cert. denied (1973), 412 U.S. 940, 37 L. Ed. 2d 399, 93 S. Ct. 2775, the court held that the positions of police sergeant and city commissioner held by Calandrillo were incompatible, as were the positions of two other city commissioners (Lombardo, secretary to the board of assessors, and Lagomarsino, advisor of veterans’ affairs). The court said (117 N.J. Super. 586, 589-92, 285 A.2d 275, 277-78):

“Regardless of the existence of specific statutory prohibitions, the common law doctrine of incompatibility has developed as a matter of public policy in order to insure that there be the appearance as well as the actuality of impartiality and undivided loyalty. [Citation.] Incompatibility exists ‘where in the established governmental scheme one office is subordinate to another, or subject to its supervision and control, or the duties clash, inviting the incumbent to prefer one obligation to another.’ [Citations.] If the duties of the two offices are such that when ‘placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.’ [Citation.]
* * *
As observed by our Supreme Court in Jones v. MacDonald, supra:
It is no answer to say that the conflict in duties outlined above may never in fact arise. *** Nor is it an answer to say that if a conflict should arise, the incumbent may omit to perform one of the incompatible roles. The doctrine was designed to avoid the necessity for that choice. [33 N.J. 132, 138, 162 A.2d 817, 820.]
Although the particular offices or positions to which these three commissioners were assigned are not incompatible with their offices as commissioners in the sense of function, nevertheless they are clearly incompatible within the broad sense of the evil sought to be avoided by the salutary rule invoked in the interest of the public.
Each of the additional posts assumed by these commissioners is subordinate to the board of commissioners of which they are members, and each of them is subject to the control of that board. This control is real and meaningful, for it affects the very existence of their positions and the emoluments received by them. For them to continue in these dual positions would deprive the citizens of the municipality of the independent judgment of these elected officials whenever an issue might arise affecting their respective jobs. ***
It is therefore determined on the basis of the applicable common law doctrine that the dual posts held by Calandrillo, Lombardo and Lagomarsino are legally incompatible and that they cannot continue to hold the same.”

In Kaufman v. Pannuccio (1972), 121 N.J. Super. 27, 295 A.2d 639, the positions of police lieutenant and member of the city council were held to be incompatible. The court said (121 N.J. Super 27, 30-32, 295 A.2d 639, 640-41):

“Russo raises but one point, that his position as a lieutenant in the Passaic Police Department was not incompatible with his holding office as a member of the council. We disagree, and affirm the judgment of the Law Division.
* * *
The common law doctrine of incompatibility has developed as a matter of sound public policy [Citation.] It is calculated to insure that there be the appearance as well as the actuality of impartiality and undivided loyalty. Incompatibility is generally understood to mean a conflict or inconsistency in the functions of an office. It may be said to exist ‘where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.’ Reilly v. Ozzard, 33 N.J. 529, 543, 166 A.2d 360, 367 (1960). See also *** O’Connor v. Calandrillo, supra, 117 N.J. Super, at 589, 285 A.2d 275. If the duties of the two offices are such that when ‘placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.’ De Feo v. Smith, supra, 17 N.J. at 189, 110 A.2d at 556.
* * *
Here we are clear that Russo’s position as a lieutenant in the police department is incompatible with his position as a member of the municipal council. O’Connor v. Calandrillo, supra, 117 N.J. Super, at 590-91, 285 A.2d 275. As a member of the council he would be empowered and called upon to pass upon matters involving salary, tenure and promotion of members of the police department, including himself. The fact that the council is required to deal with the administrative service of the city through the city manager, N.J.S.A. 40:69A—91, does not cure the incompatibility. Indeed, it may be noted that the manager is appointed by the council, N.J.S.A. 40:69A—89, and his tenure is at all times subject to termination by a majority of the council, N.J.S.A. 40:69A—93.”

In Dunn v. Froehlich (1978), 155 N.J. Super. 249, 252-54, 382 A.2d 686, 687-88, the court held that the positions of lieutenant and councilman were incompatible:

“Defendant also argues that no incompatibility exists between these two offices. The doctrine of incompatibility of offices is a common law creation, arising out of the public policy that an officeholder’s performance not be influenced by divided loyalties. Schear v. Elizabeth, 41 N.J. 321, 325, 196 A.2d 774 (1964). An incompatibility exists whenever the statutory functions and duties of the offices conflict, as when one is subordinate to the other, subject to its control, or requires the officer to choose one obligation over another. Schear, supra; [citations].
* * *
An examination of the statutory duties of the offices compels the conclusion that they result in an incompatibility. Elizabeth is organized under Mayor-Council Plan F of the Faulkner Act, N.J.S.A. 40:69A—74 to 80. Under N.J.S.A. 40:69A — 74, providing for the Mayor-Council Plan F, the provisions of N.J.S.A. 40:69A-2 to 30 and 40:69A — 36 to 48, are incorporated as governing any municipality adopting that form of government.
Thus, the council is empowered to investigate municipal departments and officers and to remove any municipal officer, other than the mayor or a member of the council. N.J.S.A. 40:69A—37. As a councilman and a policeman defendant would be statutorily charged with detecting and punishing misconduct within the police department and would in effect sit in judgment of his supervisor within the department. Such a conflict renders the offices incompatible. Jones v. MacDonald, supra, 33 N.J. at 137-138, 162 A.2d 817. In addition, N.J.S.A. 40:69A—46 confers upon the council budget approval powers, creating the potential for defendant to influence his own salary and departmental allocations. Moreover, N.J.S.A. 40:69A—43(b), (c), (d) and (e) invest a councilman with a role in appointing and removing department heads and in creating and abolishing offices. Defendant might thus have to decide on the continuance of his own job, as well as that of his supervisor.”

The same considerations found to make the positions incompatible in those cases apply here with equal force.

The board of trustees of the village of Tinley Park must determine the salaries and fringe benefits of all village employees, including police officers. It must annually establish an operating budget for the village’s police department and for all village departments and must annually levy taxes for various police purposes. It must authorize expenditures for various equipment and supply purchases for the police department and approve of officers attending seminars, conventions and supplemental training.

The civil service commission of the village is responsible for the hiring and firing of police officers, but the board of trustees has extensive and wide-ranging responsibilities in the field of police department labor relations and personnel decisions.

The board has the duty and responsibility of increasing or decreasing the numerical strength of the police department. Recently it voted to reduce the number of officers in the department. The village president and board of trustees, not the civil service commission, has the authority to appoint and remove the chief of police, the head of the department of police to which Rogers belongs. The board also has the authority, by ordinance, to appoint and remove the civil service commissioners or change the composition of the commission.

Rogers is a member of the Tinley Park Patrolmen’s Association, a collective bargaining unit representing many members of the police department. There have been labor disagreements and serious negotiations between the board of trustees and the association. The village has entered into a collective bargaining agreement with the association as the exclusive bargaining agent for all village patrol officers. This agreement is subject to implementation and negotiation between the board and the association and expires during Rogers’ present term of office as trustee.

Plaintiff contends, however, that any conflict between the positions of police officer and village trustee can be avoided by his not participating in any action involving the police department. We disagree.

In Kaufman v. Pannuccio (1972), 121 N.J. Super. 27, 31, 295 A.2d 639, 641, the court expressly rejected this argument:

“Where incompatibility has been shown to exist, it is no answer to say that, should there be a conflict in duty, an incumbent may omit to perform one of his incompatible roles. Jones v. MacDonald, supra, 33 N.J. at 138, 162 A.2d 817. And as was pointed out in the latter case:
‘Public policy demands that an office holder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer’s purpose or extraordinary his talent, (at 135, 162 A.2d at 818).’ ”

Similarly, in Dunn v. Froehlich (1978), 155 N.J. Super. 249, 253, 382 A.2d 686, 687, the court said:

“When such a statutory conflict of duties exists, it is not enough (as suggested by defendant) for the officeholder to disqualify himself when the conflict arises or to decline to act in the areas of conflict. The doctrine was designed to avoid the necessity for such an option, and the admitted need for such inaction is the most compelling proof that an incompatibility exists. Jones v. MacDonald, supra, 33 N.J. at 137-138, 162 A.2d 817; Kaufman, supra, 121 N.J. Super, at 31, 295 A.2d 639.”

In Dykeman v. Symonds (1976), 54 App. Div. 2d 159, 163, 388 N.Y.S.2d 422, 425-26, the court, in holding incompatible the positions of county legislator and motor vehicle supervisor, stated:

“The fact that respondent Symonds may indeed be able to resist temptation to act in a manner incompatible with the best interests of the County and that she may actually refrain from her duty of participating in the fixation of the salary of Motor Vehicle Supervisor is not enough to permit her to hold both positions. It is the possibility of wrongdoing and the principle involved which bars her from holding these incompatible offices (People ex rel. Schenectady Illuminating Co. v. Board of Supervisors of County of Schenectady, 166 App. Div. 758, 761, 151 N.Y.S. 1012, 1014; and see People v. Freres, 5 A.D.2d 868, 171 N.Y.S.2d 274; Matter of County of Warren v. Levitt, 20 Misc. 2d 598, 198 N.Y.S.2d 777; 27 Opinions, State Comptroller 125, 71-545).”

The New Jersey decisions in O’Connor and Kaufman were approved and followed in Haskins v. State ex rel. Harrington (Wyo. 1973), 516 P.2d 1171, where the court found incompatible the positions of teacher and trustee of a school district. In that case, the court pertinently observed with reference to abstention from action to avoid a conflict of interest:

“We also note that the need of the community for continuing exercise of judgment and the making of decisions on the basis of give-and-take discussion of independent minds is not served best where one of the board must at frequent intervals take no part because of conflict.” 516 P.2d 1171, 1179.

During oral argument, plaintiff relied on People ex rel. Black v. Dukes (1982), 108 Ill. App. 3d 965, 439 N.E.2d 1305. Subsequently, the supreme court granted leave to appeal, held the issues moot and vacated the judgments of the appellate and circuit courts to prevent the appellate court’s resolution of the issues from standing as precedent for future cases. People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273.

Moreover, there is no limit as to the number of police officers who could serve on the village board of Tinley Park, thus making pertinent the observation of the concurring justices in Haskins v. State ex rel. Harrington (Wyo. 1973), 516 P.2d 1171, 1181:

“The statute which he contended permitted him to serve on the board made no mention of teachers as board members and therefore no limitation as to the number of teacher board members was stated, and I fail to see how a limit could be implied. Therefore, if Haskins as a teacher could serve other teachers could also become members.
If teachers constituted all or a majority of the members of the board of trustees the board could not transact any business dealing with teachers, including salary negotiations, because teacher members would have to absent themselves and there could be no majority action. If a school board could not set teachers’ salaries and other contract terms it could not function. No reasonable argument could be made that the legislature intended to create a situation wherein a school board would be unable to perform its duties as the governing body of the school district.”

Plaintiff argues that Rule VII, section 3, of the village of Tinley Park Civil Service Commission Rules gives him the right to serve as a village trustee while on leave of absence. That rule provides in part: “*** no leave of absence shall exceed one year, except to enable an officer or employee to accept any elective or appointive position in the public service ***.” We disagree, because, even if on leave of absence, his seniority and pension and insurance rights are not jeopardized; in fact, his seniority rights are enhanced by the mere passage of time. Thus, a leave of absence does not remove the incompatibility.

Finally, we find that the application of the common law incompatibility rule does not result in an unconstitutional "chill” on Rogers’ first amendment rights.

In Haskins v. State ex rel. Harrington (Wyo. 1973), 516 P.2d 1171, 1173-74, the court held that the common law incompatibility rule prohibiting a school teacher from serving as a school board member of the district where he was employed did not violate the teacher’s first amendment rights.

The United States Supreme Court has upheld, against a claim of violation of first amendment rights, more restrictive limitations on the right of a public officer or employee to run for public office or to serve as an elected official. United Public Workers of America (C.I.O.) v. Mitchell (1947), 330 U.S. 75, 91 L. Ed. 754, 67 S. Ct. 556; United States Civil Service Com. v. National Association of Letter Carriers, AFL—CIO (1973), 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880; Clements v. Flashing (1982), 457 U.S. 957, 73 L. Ed. 2d 508, 102 S. Ct. 2836. See also Magill v. Lynch (1st cir. 1977), 560 F.2d 22.

The judgment of the circuit court of Cook County is reversed and the cause remanded with directions to grant defendant’s motion for summary judgment and to deny plaintiff’s.

Reversed and remanded with directions.

GOLDBERG and CAMPBELL, JJ., concur.