author: JUSTICE HEIPLE

text:
    BETTY L. LAKIN, Plaintiff-Appellant, v. THE CITY OF PEORIA et al., Defendants-Appellees.
    Third District
    No. 3-84-0163
    Opinion filed December 31, 1984.

      Thomas E. Letter, of Letter, Letter & Sahn, of Peoria, for appellant.
    No brief filed for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal concerns the validity of section 2 — 6.2013 of the permanent zoning ordinance of the city of Peoria. (Peoria, Ill., Code, app. B, sec. 2 — 6.2013 (1969).) The plaintiff, Betty L. Lakin, filed a complaint for declaratory judgment asking the circuit court of Peoria County to declare certain portions of section 2 — 6.2013 void. The plaintiff also sought a writ of mandamus to compel Roberto Rosado, senior zoning enforcement officer and designate of the director of community development of the city of Peoria, to approve her application for consent for two-family dwelling. The plaintiff appeals from the trial court’s order holding that the ordinance was valid and constitutional in all respects.

We note initially that the defendants have not filed briefs on appeal. It is well established, however, that where the record is simple and the court of review can easily decide the claimed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The facts pertinent to this appeal are as follows. The plaintiff owns certain property in Peoria and resides there. The property is improved with a two-story structure and is located in an R-l low-density residential district. In January of 1982, the city of Peoria filed a complaint against the plaintiff alleging that she was in violation of section 2 — 6.5003 of the ordinance (Peoria, Ill., Code, app. B, sec. 2 — 6.5003 (1969)), in that she was using her property for a more-than-one-family dwelling and that her lot contained less than 7,500 square feet. Section 2 — 6.5003 provides that each two-family dwelling must be erected on a lot having an area of not less than 7,500 square feet.

Pursuant to an agreement reached by the parties in May of 1982, the plaintiff entered a plea of guilty to the complaint. In addition, the city of Peoria agreed not to prosecute the plaintiff further until the Zoning Board of Appeals (Board) made a final decision on a request to be filed by the plaintiff for a variance in lot area. The plaintiff filed an application with the Board requesting a variance in the 7,500 square feet lot area requirement. The Board granted the plaintiff’s application and requested that she submit a “Consent for Two-Family Dwelling” application form.

Under the Peoria zoning ordinance, two-family dwellings are permitted uses within R-l districts. However, in addition to meeting the lot area requirement, section 2 — 6.2013 provides that, before the location of a two-family dwelling will be approved, the applicant must obtain the written consent of all owners of property touching, adjoining, or abutting the applicant’s property. The plaintiff submitted a “Consent for Two-Family Dwelling” application form, but was unable to obtain the consent of the property owners to the east of her property.

Since the consent provision of section 2 — 6.2013 was not met, the city, acting through its senior zoning enforcement officer, Roberto Rosado, denied the plaintiff’s application. She was notified that, as a result of the denial, her property would be inspected by the city to insure that it was not in violation of section 2 — 6.1000 of the ordinance (R-l low-density residential districts). (Peoria, Ill., Code, app. B, sec. 2 — 6.1000 (1969).) The plaintiff then filed her complaint in this cause seeking declaratory judgment and mandamus without pursuing any administrative remedies available to her.

The plaintiff’s first contention is that she was not required to apply for a variance or for rezoning prior to instituting this cause in the circuit court.

The general rule is that where relief is sought from an ordinance on the ground that it is invalid in its terms, prior application for administrative relief is unnecessary. However, where it is claimed that the ordinance is unlawful and void merely as applied to a particular piece of property, and not that the ordinance is invalid as a whole, judicial relief is appropriate only after available administrative remedies have been exhausted. (Bright v. City of Evanston (1956), 10 Ill. 2d 178, 184-85, 139 N.E.2d 270, 274.) Here, the challenge made by the plaintiff is to the constitutionality of the terms of section 2— 6.2013 and not to the manner in which it is applied to her property. We hold, therefore, that the plaintiff was not required to exhaust her administrative remedies.

The plaintiff’s second contention is that the requirement in section 2 — 6.2013 that she obtain the consent of all the owners of property touching, adjoining, or abutting her property is an unconstitutional delegation of legislative authority.

Section 2 — 6.2013 provides in part that:

“Locations for two-family dwellings on lots in subdivisions platted prior to August 17, 1971, and having the herein minimum square footage requirement for two-family dwellings shall be approved by the director of the community development or his designate. Before such approval can be given, the owner of such proposed two-family lot shall obtain the written approval of (1) the owners of property touching, adjoining, or abutting the proposed two-family lot ***.” Peoria, Ill., Code, app. B, sec. 2-6.2013 (1969).

In Valkanet v. City of Chicago (1958), 13 Ill. 2d 268, 272, 148 N.E.2d 767, 769-70, overruled in part by Drovers Trust & Savings Bank v. City of Chicago (1960), 18 Ill. 2d 476, 165 N.E.2d 314, the Illinois Supreme Court stated that “if an ordinance permits a certain percentage of the property owners to impose or create a restriction upon their neighbors’ property by the device of consent provisions, such limitation constitutes an invalid delegation of legislative power, but if the consent provision merely waives or modifies a lawful and reasonable legislative restriction or prohibition, it is within constitutional limitations.” The supreme court later held that this subtle distinction between “creating” and “waiving” a restriction could not be justified since each constitutes an invalid delegation of legislative power. Drovers Trust & Savings Bank v. City of Chicago (1960), 18 Ill. 2d 476, 478, 165 N.E.2d 314, 315.

The ordinance in Drovers required the written consent of property owners representing a majority of the frontage within a prescribed distance of a proposed gas station before storage tanks could be installed and before a license would be issued for the station. The court held that the procuring of frontage consents had no bearing on the public health or welfare, and such a requirement was an unwarranted and unauthorized exercise of the police power.

In the instant case, section 2 — 6.2013 leaves the ultimate determination of whether a two-family dwelling will be detrimental to the public welfare to the whim and caprice of neighboring property owners rather than to a reasoned decision by the city. We hold, therefore, that the consent provision in section 2 — 6.2013 has no bearing on the public health, safety or welfare and that it constitutes an invalid delegation of legislative power.

The plaintiff’s third contention is that the requirement in section 2 — 6.2013 that locations for two-family dwellings on lots in subdivisions platted prior to August 17, 1981, be approved by the director of community development or his designate is an unlawful delegation of power.

The plaintiff’s lot is located in a subdivision which was platted prior to August 17, 1981, and so use of the lot for a two-family dwelling required the approval of Roberto Rosado, the designate of the director of community development. During cross-examination, Rosado testified that his decision whether to approve an applicant’s proposed location for a two-family dwelling was not reviewed by the planning commission or by the city council. The plaintiff argues that giving one person, Rosado, the authority to designate specific property for a particular use constitutes an abdication of legislative authority.

The case of Village of Arlington Heights v. Schroeder (1975), 28 Ill. App. 3d 1, 328 N.E.2d 74, is controlling. In Schroeder, property owners were required to obtain a permit from the director of health services in order to be exempt from the local weed-abatement ordinance. The court stated that the fault of the ordinance lay not in the grant of discretion to the director but in its failure to impose any standards by which he was to be guided. The court held that this failure rendered the ordinance an unlawful delegation of legislative authority.

In the present case, the zoning ordinance does impose standards to guide the director or his designate in deciding whether to approve proposed locations for two-family dwellings. The ordinance provides that applications for a use permitted with approval (i.e., two-family dwellings), are to be processed in conformity with the standards specified in sections 2 — 29.4001 through 2 — 29.4011. (Peoria, Ill., Code, app. B, secs. 2-29.4001 through 2-29.4011 (1969).) We hold, therefore, that the discretion given to the director or his designate to approve proposed locations for two-family dwellings is not an unlawful delegation of legislative authority.

The plaintiff’s fourth contention is that the provisions in section 2 — 6.2013 relating to subdivisions platted prior to August 17, 1971, are unconstitutionally vague.

The test for determining whether an ordinance is unconstitutionally vague is whether men of ordinary intelligence must guess at its meaning. (Queenwood East Sheltered Care Home, Ltd. v. Village of Morton (1981), 94 Ill. App. 3d 51, 56, 418 N.E.2d 472, 476.) If there is a doubt as to the construction to be given to a particular provision in an ordinance, the doubt must be resolved in favor of an interpretation which supports the ordinance. S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 64, 284 N.E.2d 257, 262-63.

Section 2 — 6.2013 provides in part that:

“The number of existing two-family lots and those that have been designated as two-family lots can be zero but shall not exceed ten (10) per cent of the total of all lots within the subdivision.” (Peoria, Ill., Code, app. B, sec. 2 — 6.2013 (1969).)

In regard to this 10% limitation, the plaintiff correctly notes that section 2 — 6.2013 does not define the terms “lot” or “subdivision.” However, we believe that both terms have commonly understood meanings and that section 2 — 6.2013 is not rendered unconstitutionally vague.

In addition, the plaintiff argues that section 2 — 6.2013 is unconstitutionally vague in that the total number of lots within a subdivision for purposes of the 10% limitation can be increased or decreased by the filing of amendatory subdivision or resubdivision plats. For example, at trial, the plaintiff submitted two subdivision plats of the property in question with each containing a different number of lots. However, we find that as to subdivisions platted prior to August 17, 1971, the total number of lots within a subdivision, for purposes of the 10% limitation, is to be determined by referring to the most recent subdivision plat on file at the time the applicant requests the approval of the director or his designate. We believe it is possible to so construe section 2 — 6.2013, without doing violence to the spirit or language of the ordinance, as to render it constitutional.

The plaintiff’s final contention is that the unconstitutional provisions in section 2 — 6.2013 are severable from other provisions in that section of the ordinance.

“The fact that part of a statute or ordinance may be unconstitutional does not authorize the courts to declare the remainder- void unless the provisions of the void part are so connected in subject matter and so entwined with the other provisions, each being so dependent upon the other, that it cannot reasonably be presumed that the remainder would have been passed without the passage of the invalid part or section.” Father Basil’s Lodge, Inc. v. City of Chicago (1946), 393 Ill. 246, 260-61, 65 N.E.2d 805, 814.

Section 2 — 33.1000 of the permanent zoning ordinance provides that if any provision of the ordinance is declared to be invalid, it should not affect the validity of the ordinance as a whole or any part of it, other than the part declared to be invalid. (Peoria, Ill., Code, app. B, sec. 2 — 33.1000 (1969).) We note that the consent provision was not part of section 2 — 6.2013 when the permanent zoning ordinance was adopted in 1969. Instead, the consent provision was added through an amendment to section 2 — 6.2013 in 1980. Prior to that amendment, two-family dwellings were allowed in R-l low-density residential districts without an applicant having to obtain the written consent of neighboring property owners.

In light of the above, we find that the consent provision in section 2 — 6.2013 is not an integral or essential part of the ordinance and that the other provisions in section 2 — 6.2013 are entirely independent of it. See Clark Oil & Refining Corp. v. Village of Tinley Park (1969), 110 Ill. App. 2d 61, 249 N.E.2d 140.

As to the plaintiff’s request for a writ of mandamus, we note the following. Her application for consent for two-family dwelling was denied solely because she had not obtained the written consent of all the owners of property touching, adjoining, or abutting the proposed two-family lot. Thus, there is no evidence in the record as to whether the provision in section 2 — 6.2013, limiting the number of two-family dwelling lots to 10% of the total of all the lots contained in a subdivision, has been met. Therefore, the plaintiff does not have a clear legal right at this time to have her application approved.

For the foregoing reasons, we find that the consent provision in section 2 — 6.2013 is unconstitutional. In that regard, the judgment of the circuit court of Peoria County is reversed. In addition, this cause is remanded with directions that the circuit court issue a writ of mandamus directing the city of Peoria to process the plaintiff’s application and to approve the application if the application complies with the remaining provisions in section 2 — 6.2013. See Clark Oil & Refining Corp. v. Village of Tinley Park (1969), 110 Ill. App. 2d 61, 249 N.E.2d 140.

Reversed and remanded with directions.

BARRY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    DONNA SANTY, Adm’r of the Estate of Scott R. Santy, Deceased, Plaintiff-Appellant, v. JOHN J. BRESEE, Adm’r of the Estate of Mohammad M. Ba-lazadeh, Deceased, et al., Defendants (Joseph Brown et al., Defendants-Ap-pellees). JOYCE OBERMILLER, Adm’r of the Estate of Cathy S. Santy, Deceased, Plaintiff-Appellant, v. JOHN J. BRESEE, Adm’r of the Estate of Mohammad M. Balazadeh, Deceased, et al., Defendants (Joseph Brown et al., Defendants-Appellees).
    Fourth District
    Nos. 4—83—0587, 4—83—0588 cons.
    Opinion filed December 27, 1984.

      Lakin & Herndon, P.C., of East Alton, for appellants.
    Kurt P. Froelich, of Evans & Froelich, of Champaign, for appellees County of Champaign, Joseph Brown, and Archie Napper.
    Hurshal C. Tummelson and Jeffrey W. Tock, both of Phebus, Tummelson, Bryan & Knox, of Urbana, for other appellees.
   JUSTICE MILLS

delivered the opinion of the court:

This is indeed a tragic case.

But the general rule is that law enforcement officials have no duty to protect individual citizens from crime — only such duty to the citizenry in general.

The trial court so held.

We affirm.

THE FACTS

Scott and Cathy Santy, a young married couple, were shot and killed at their apartment in Savoy, Champaign County — allegedly by Mohammad Balazadeh, a neighbor.

The administrators of the Santys’ estates then sued the five defendants involved in these consolidated appeals — the Champaign County sheriff and a deputy, the Champaign County State’s Attorney and an assistant, and the county itself — for not protecting the Santys from Balazadeh. According to the complaints, Balazadeh had repeatedly threatened and harassed the Santys that summer, and on August 5, 1980, two days before the shootings, the county sheriff had arrested Balazadeh on charges arising from the Santys’ complaints. But the Santys were not notified of Balazadeh’s later release from custody, although they had been promised a warning of that.

THE PLEADINGS

The complaints alleged that the Santys were the beneficiaries of a duty of protection that the defendants did not owe to the general public predicated on the following special circumstances: the Santys’ requests for protection, the defendants’ knowledge of Balazadeh’s threats against the Santys, and the defendants’ promises to warn the Santys of Balazadeh’s release from custody.

The trial court dismissed these counts for failing to state causes of action, and the plaintiffs appeal. (Also named as defendants, but not involved in this appeal, are the administrator of Balazadeh’s estate and the manager and the landlord of the apartment complex where the Santys and Balazadeh lived.)

Each of the defendants who is a party to this appeal was charged in five counts with negligence and recklessness; the latter was expressed as acting “in conscious disregard for the safety of the Plaintiff’s decedent.” Recovery was sought from each defendant for the losses of the surviving minors (Scott Santy was survived by one child and Cathy Santy by two), for the decedents’ pain and suffering, for funeral expenses, and for punitive damages. This five-count pattern was repeated against each defendant, and all 25 of these counts contained identical allegations regarding the duty to protect the Santys and the special circumstances from which it arose; the only difference from one defendant to another was found in the list of that particular defendant’s acts and omissions.

Defendant Napper, the deputy sheriff who according to the complaints was responsible for booking Balazadeh when he was taken into custody on August 5, allegedly breached his duty in two ways: by failing to obtain from Balazadeh “the correct background and identifying information,” and by failing to discover Balazadeh’s history of violent crime, which was on file.

State’s Attorney Difanis and his assistant, Bailie, allegedly breached their duties in four ways: by failing, like Napper, to discover Balazadeh’s history of violent crime, which was on file, by failing to supply the circuit court with the correct information on Balazadeh’s criminal history, by failing to adequately protect the Santys, and by failing to warn the Santys of Balazadeh’s release from custody.

Finally, the two remaining defendants, Sheriff Brown and Cham-paign County, breached their duties in the five distinct ways already listed.

In dismissing these counts for failing to state causes of action, the trial judge held that the four personal defendants did not have a duty to honor requests for protection and did not have authority to promise to provide warnings regarding the release of defendants from custody. The court concluded that the decedents did not escape the general rule that law enforcement officials and agencies have no duty to protect individual citizens from crime. This conclusion also vitiated the plaintiffs’ claims against the county, which were based on respon-deat superior; additionally, the court held that the county could not be sued in tort and was not responsible for its employees’ oral promises.

THE LAW

In granting the defendants’ motions to dismiss, the trial judge relied primarily on this court’s decision in Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610. Porter held that the duty of law enforcement officers to preserve a community’s well-being generally is owed not to specific individuals but rather to the community as a whole. The plaintiff there had been raped. She sued for both simpie negligence and wilful and wanton misconduct, alleging that the police knew that the person who attacked her was responsible for six earlier rapes in the area that year and that they had sufficient information to justify arresting him. The defendants were the police officer in charge of the investigation of the series of rapes and the municipality that employed him.

The trial judge in Porter dismissed the complaint for failing to state a cause of action and this court affirmed, holding that law enforcement officers and agencies do not owe a duty to individual citizens to protect them from crime unless a special relationship exists between the individual and the agency or officer. As an example of circumstances that might give rise to this duty, Porter cited Schuster v. City of New York (1958), 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534, where the victim had provided the police with dangerous and well-known assistance and the crime resulted from that. The special relationship was based on reciprocity.

Porter also cited Johnson v. Gallatin County (7th Cir. 1969), 418 F.2d 96, Bollinger v. Schneider (1978), 64 Ill. App. 3d 758, 381 N.E.2d 849, and Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, appeal after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cases in which the law enforcement agency’s or officer’s inadequate exercise of control over prisoners or suspects allowed the crime to occur. Citing Riss v. City of New York (1968), 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, Porter noted that a person’s request for police protection does not by itself create the special relationship.

The existence of duty is a question of law. (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.) Its resolution depends not only on the foreseeability and likelihood of the harm that occurred, but also on the general costs and consequences of requiring a party to prevent or guard against its occurrence. (Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231.) The rule that law enforcement agencies and officers are not liable to third parties for the failure to prevent crime reflects the judgment that to hold otherwise would impose an impossible burden on law enforcement agencies and officers, requiring them to carry out a myriad of difficult and frequently conflicting duties in guaranteeing the safety of every individual citizen. An exception to the rule of nonliability arises when the agency’s or officer’s undertaking transforms the general citizen into an object of special concern.

The plaintiffs alleged against each of the defendants involved in this appeal three separate circumstances on which to base the special relationship necessary for the existence of the duty: (1) a request by the decedents for protection from Balazadeh, (2) the defendant’s knowledge of Balazadeh’s threats against the decedents, and (3) the defendant’s promise to warn the decedents of Balazadeh’s release from custody. We conclude that the allegations here do not take the case out of the general rule that law enforcement agencies and officers do not owe individual citizens a duty to protect them from crime.

The first allegation, the request for protection, must fail. A person’s request for police protection will not by itself create the special relationship (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610), and it cannot be specifically his for the asking.

The second allegation, knowledge of Balazadeh’s threats against the decedents, also fails to give rise to the special relationship. A law enforcement agency’s or officer’s knowledge of threats against a third person does not create any relationship between that person and the agency or officer. Furthermore, law enforcement agencies and officers acquire, record, and relay vast numbers of statements and reports in the course of carrying on their work, and basing the duty on this circumstance would add an intolerable burden to the ways in which such information is handled.

The third circumstance alleged, the promises to warn the decedents of Balazadeh’s release from custody, is an insufficient undertaking to serve as a basis for liability. In the absence of legislative action imposing the duty, we are not inclined to follow those cases in other jurisdictions that have found liability for the failure to provide promised warnings (e.g., Fair v. United States (5th Cir. 1956), 234 F.2d 288; Williams v. United States (D.S.D. 1978), 450 F. Supp. 1040; Morgan v. County of Yuba (1964), 230 Cal. App. 2d 938, 41 Cal. Rptr. 508). The defendants’ promises to provide the warnings were gratuitous. Although a party may be liable for the way in which it performs a gratuitous undertaking (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769; Restatement (Second) of Torts sec. 323 (1965)), liability here would be based instead on nonfeasance — the failure to perform, rather than the nature of the performance. The Restatement expressly leaves open the question whether .liability may follow the failure to perform a gratuitous promise, though it is skeptical of the distinction often drawn between misfeasance and nonfeasance. Restatement (Second) of Torts sec. 323, comment d (1965).

We find it appropriate not to find liability here, however, for the duty imposed would be against a public rather than a private officer or entity, and it would be for carrying on a function for which liability does not normally attach.

Reading the three allegations separately or together, we conclude that no special relationship arose between the plaintiffs’ decedents and the defendants. The allegations do not show that the individual decedents were entitled to a degree of protection greater than that afforded citizens generally.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: PRESIDING JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CHARLES DANIS, a/k/a Randall Lee Langford, Defendant-Appellant.
    Second District
    No. 2—83—1135
    Opinion filed December 28, 1984.
    G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene L. Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

A jury convicted the defendant, James Charles Danis, of the offense of forgery (Ill. Rev. Stat. 1983, ch. 38, par. 17 — 3(a)(1)), and he was sentenced to a five-year term of imprisonment. Defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt, and (2) that the trial court erred in sentencing when it considered an improper aggravating factor and failed to consider a relevant factor in mitigation.

Ralph Berry, a truck driver for Southwest Freight Lines, testified at trial that he picked up a hitchhiker in Sioux City, Iowa, on January 27, 1983, and dropped him off two days later near Salina, Kansas. When Berry was asked whether the hitchhiker was present in court, the witness responded that he (the hitchhiker) was supposed to be there. Then Berry was questioned whether the defendant was the man he had picked up; he answered that the hitchhiker had a beard at the time. When the court inquired “[i]s that him without a beard?” Berry responded that he did not know. He added, however, that the hitchhiker had three fingers missing from a hand and that he could identify him by his hand. After the defendant displayed his hands, Berry stated, “That’s his hand, but it don’t look like him, but that’s his hand.” When the State’s Attorney inquired how the defendant looked different from the hitchhiker, Berry answered that the person to whom he had given a ride had a beard and added that “[sjhaven off they look different.” He also stated that he had been with the hitchhiker for two days about eight months ago. Then the prosecutor asked Berry whether, based on his observation of the defendant’s hand, he believed the defendant was the hitchhiker. Berry replied that he recognized “his hand right off the bat.”

Berry testified further that he kept his checks in a box in the truck and that the hitchhiker had slept near it. A few weeks after Berry dropped off the hitchhiker, he received notification from a bank that a check of his that had been cashed was not made out in Berry’s handwriting. After receiving this notice, Berry discovered that 25 to 30 of his checks were missing from the truck, including People’s exhibit No. 1, which Berry testified he did not sign.

The witness stated, also, that he did not give anyone else a ride in the truck from the time he dropped off the hitchhiker in Salina until he received notification from the bank, and no one else had access to the checks. Berry did not give the defendant permission to take a check or sign it. At one point, however, the hitchhiker had asked Berry for his driver’s license number, and Berry showed him the license.

During cross-examination, Berry stated he was sure the defendant was the man he had picked up in Sioux City and that he saw both of the hitchhiker’s hands and noticed a deformity on only one hand. In addition, he testified that “[t]hat don’t look like him, but how did he have my check book.” Defendant exhibited his hands in trial and the record reflects that defendant has only three fingers on each hand as a result of a congenital defect.

Mary Nagy testified that on February 5, 1983, she was employed at Domino Liquors in Dixon. Late in the evening on that day, a man cashed a check for $150 and bought liquor. He made out the check in her presence, and she wrote in the payee for him. When the individual presented the check to her, she asked him for his driver’s license; he replied that he did not have it, but that all the information was on the check. Nagy identified the defendant in open court as the person who cashed the check. She related, in addition, that she had seen the man before, because he had visited the store frequently over a three-week period. Nagy identified People’s exhibit No. 1 as the check in question.

On cross-examination Nagy described the person who handed her the check as having black hair, a mustache and a full beard. She also remembered that one of his hands was deformed; she thought it was the right one. When she was asked whether she noticed the other hand, she responded that the other hand was okay. She was sure that he had one deformed hand and one normal hand.

Officer Robert Short stated that on October 21, 1983, he and Officer Bivens had a conversation with the defendant at the Dixon police department. The defendant told Short that he did not remember going into the liquor store or writing or cashing the check. Short related that he showed defendant a “forged document” and asked Danis if he had seen it before. The defendant did not recall whether he had seen the check previously, but remarked that, although he could not be sure, the signature on the check looked like his signature. The officer identified People’s exhibit No. 1 as the check the liquor store handed over to the Dixon police department.

The defendant’s first contention is that the eyewitness testimony the State adduced at trial identifying him as the perpetrator of the forgery offense was so doubtful and uncertain that it was insufficient to convict him beyond a reasonable doubt. He attacks the reliability of the testimony of Ralph Berry and Mary Nagy, emphasizing that they both testified that they saw both hands of the perpetrator and that he had only one deformed hand, whereas the evidence established that the defendant had two deformed hands. He concludes that this discrepancy casts such a doubt upon the reliability of the witnesses’ testimony that he was not proved guilty beyond a reasonable doubt.

Certain principles of law are well settled in the area of identification testimony. Although it is axiomatic that a conviction cannot be sustained if the identification of the accused was vague, doubtful or uncertain (People v. Ash (1984), 102 Ill. 2d 485, 494), it is equally well established that the identification testimony of a single witness is sufficient to support a conviction provided the witness is credible and viewed the accused under circumstances that would permit the making of a positive identification. (People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Gholston (1984), 124 Ill. App. 3d 873, 892.) The standard for a positive identification is whether the witness was close enough to the accused for a sufficient length of time under conditions that provide an adequate opportunity for observation. (124 Ill. App. 3d 873, 892-93.) Discrepancies in the testimony or omissions of detail do not destroy the validity or credibility of an identification; rather, they affect the weight of the testimony and are evaluated by the trier of fact. People v. Shelby (1984), 123 Ill. App. 3d 153, 164.

A witness usually arrives at an identification based upon the total impression the individual made upon him, not by distinguishing separate features. (People v. Shelby (1984), 123 Ill. App. 3d 153, 165.) It is clear that where the in-court identification of the accused is positive, precise accuracy in describing facial characteristics, hair, height and weight is unnecessary. (People v. Smith (1977), 52 Ill. App. 3d 583, 587, cert. denied (1978), 436 U.S. 961, 57 L. Ed. 2d 1127, 98 S. Ct. 3079.) The question whether the identification is reliable is based upon an examination of the totality of the circumstances. (People v. Bryant (1984), 123 Ill. App. 3d 266, 272.) In addition, the fact that the witness had some prior acquaintance with the accused strengthens the reliability of the witness’ identification testimony. (People v. McClure (1979), 80 Ill. App. 3d 10, 16.) The reliability of the identification is a factual matter for the jury’s determination. People v. Lutz (1982), 103 Ill. App. 3d 976, 980.

The evidence presented in this cause reflects that Mary Nagy had occasion to view the defendant frequently during the three-week period he visited the liquor store as a customer. Subsequently, during the visit in question, she helped the defendant write the check upon which his conviction of forgery was predicated. She identified the defendant in open court as the person who cashed the check and described the man who handed her the check as having black hair, a mustache, and a full beard. She remembered, in addition, that one of his hands was deformed, which she believed to be the right one. She stated, also, that she had observed the defendant’s other hand and that it was normal. The defendant correctly observes that, as a result of a congenital defect, both of his hands possess only three fingers. It is also true that the defendant raised both hands in court in order that a witness (Berry) could observe them.

We consider that Nagy’s identification testimony was positive and, standing alone, was sufficiently persuasive to establish beyond a reasonable doubt that the defendant was the person who committed the forgery. Her in-court identification testimony was not impeached, and, although the witness’ reliability may have been cast into doubt somewhat due to her testimony that the defendant possessed one normal hand, the jury may have concluded that her failure to observe the deformity was not sufficient, by itself, to destroy the validity or credibility of her identification of the accused. (See People v. Lumpkin (1975), 28 Ill. App. 3d 710, 713-14 (the failure to observe a prominent facial scar did not cast into doubt the reliability of the witness’ identification testimony).) It was within the jury’s province to determine the weight to be accorded Nagy’s testimony, especially where, as here, the jury viewed the defendant’s hands in open court.

Although Berry’s testimony was equivocal in that he first identified the defendant as the hitchhiker and then later, during cross-examination, stated that the defendant did not look like the hitchhiker, this witness did provide corroboration of Nagy’s testimony. Berry identified the defendant based on his deformed right hand and stated that the hitchhiker had a beard. Nagy, too, testified that the person who cashed the check had a deformed right hand and a beard. Although it is true that Berry testified that the hitchhiker had only one deformed hand, the jury may have justifiably concluded that the witness’ failure to observe the defect in the defendant’s left hand did not fatally impair the reliability of other aspects of Berry’s testimony.

There is also other evidence that tends to establish that the defendant was the same person who hitched a ride with Berry and cashed the check in Nagy’s presence. Berry testified that the hitchhiker asked for his (Berry’s) driver’s license number and that he showed the hitchhiker the license. In addition, the record reflects that when Nagy asked the customer for his driver’s license number, he replied that the information was on the check. The back of the check contains a truck number, a driver’s number, and the notation South West Freight, the company for which Berry worked.

We conclude that the identification evidence produced established beyond a reasonable doubt that the defendant was the person who committed the forgery. The identification of Danis is “not so dubious that any serious doubt of his guilt” exists. (People v. Gholston (1984), 124 Ill. App. 3d 873, 894.) The cases upon which the defendant relies (People v. Ash (1984), 102 Ill. 2d 485; People v. Byas (1983), 117 Ill. App. 3d 979; People v. Carroll (1970), 119 Ill. App. 2d 314; People v. Barney (1965), 60 Ill. App. 2d 79) are distinguishable factually from the present case.

Defendant contends next that the trial court committed prejudicial error in sentencing him and it must be vacated and the cause remanded for a new sentencing hearing. He argues that the trial court incorrectly considered as a factor in aggravation that the defendant, who had maintained his innocence at trial, had shown no remorse or penitent spirit. In addition, Danis argues that the trial court failed to consider as a relevant mitigating factor that the defendant had “led a law-abiding life for a substantial period of time before the commission of the present crime” (Ill. Rev. Stat. 1983, ch. 389, par. 1005-5-3.1(a)(7)).

Before imposing sentence, the trial court extended the defendant an opportunity to address the court, to which defendant responded that he had nothing to say. The court then remarked that, with respect to the seriousness of the crime, the present forgery caused harm to the defrauded person and observed that the defendant had not shown any remorse or a penitent spirit. The court noted, also, that the defendant’s prior convictions were numerous and that the defendant’s record of criminality was one of the worst that had ever been presented to it. Similarly, the court stated that the defendant began to get into trouble at age 16, had been in trouble ever since and had engaged in a constant series of crimes since age 16. The presen-tence report indicates that the defendant has an extensive criminal record spanning the years 1966 to 1983. Noting the defendant’s extensive criminal history and the need to protect the interests of society against such criminal behavior, the court sentenced the defendant to a five-year term of incarceration.

Defendant asserts that the trial court may not consider as a proper factor in aggravation the fact that he did not express remorse at the sentencing hearing where defendant had maintained his innocence throughout the trial.

It is well settled that the question of the defendant’s remorse or lack of it is a proper subject for consideration at sentencing, where, as happened here, the defendant maintained his innocence at trial. (See, e.g., People v. Albanese (1984), 102 Ill. 2d 54, 80-81; People v. Rodriguez (1981), 100 Ill. App. 3d 244, 250; People v. Costello (1981), 95 Ill. App. 3d 680, 687-89.) The decision in People v. Sherman (1977), 52 Ill. App. 3d 857, upon which the defendant places primary reliance, was based upon unusual facts (People v. Costello (1981), 95 Ill. App. 3d 680, 688) and is distinguishable from the case at bar, for here, unlike in Sherman, there is no evidence that the defendant’s punishment was increased because he did not admit his guilt. See People v. Costello (1981), 95 Ill. App. 3d 680, 688; People v. Mosley (1980), 87 Ill. App. 3d 903, 906; People v. Moffett (1977), 55 Ill. App. 3d 939, 941.

Defendant next contends that the trial court failed to consider as a factor in mitigation that he had led a law-abiding life for a substantial period of time prior to the commission of the present offense (see Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.1(a)(7)). In support, defendant points out that he led a law-abiding life for over four years prior to the present offense. The State responds, and the record establishes, that the defendant’s prior record of criminality is extensive; he was convicted of numerous crimes between 1966 and 1978 and was also convicted of two offenses in 1983, excluding the current forgery conviction. Based upon his prior criminal record, the trial court may have concluded, with justification, that the four-year period during which the defendant led a crime-free existence was not “substantial” within the meaning of the statute and, thus, that the purported mitigating factor was not present here.

Even if defendant’s limited period of law-abiding behavior were viewed as a mitigating factor, this alleged mitigating evidence was before the trial court, and we will assume that the trial court considered it unless there is some statement in the record, aside from the sentence imposed, which would tend to indicate otherwise. (People v. Goodman (1983), 116 Ill. App. 3d 125, 127-28; People v. Baker (1983), 114 Ill. App. 3d 803, 811.) This presumption applies in the present case.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

HOPE and STROUSE, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    FIDEL GHINI et al., Plaintiffs-Appellants, v. HIGHWOOD-HIGHLAND PARK ELEMENTARY SCHOOL DISTRICT No. 111 IN LAKE COUNTY et al., Defendant-Appellees.
    Second District
    No. 83—1128
    Opinion filed December 28, 1984.
    Paul P. Diambri and Wallace B. Dunn, both of Highwood, for appellants.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Thomas A. Morris, Jr., and Allyn J. Franke, both of Brydges, Roseborough, Morris, Franke & Miller, of Chicago (Margaret J. Mullen, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, Fidel Ghini, Josephine Ghini, Armando Lenzini, Victoria Santi and Shirley Cabri, appeal from an order of the trial court that denied their motion for summary judgment and granted the motion for summary judgment of the defendants, Highwood-High-land Park Elementary School District No. Ill (school district), certain named officials of the school district, and the clerk of Lake County.

On March 17, 1983, the plaintiffs filed a complaint in which they challenged the results of a referendum, held the previous month, in which the voters of the school district, which is located in Lake County, agreed to increase the maximum tax rate for the school district. The referendum passed by a margin of 62 votes. Among those persons voting in the election were individuals residing on the military reservation located at Fort Sheridan.

In this court, the plaintiffs raise a single assignment of error: that the trial court’s order denying their motion for summary judgment and granting that of the defendants was improper, for the specific reason that the court below incorrectly determined that members of the military stationed at Fort Sheridan and their dependents were eligible to vote in the instant referendum. In particular, they maintain that section 17 — 3 of the Illinois School Code (Ill. Rev. Stat. 1983, ch. 122, par. 17 — 3) does not apply to members of the military or their dependents, because the State has no legislative jurisdiction over Fort Sheridan. They argue, in addition, that because the State cannot tax an area under exclusive Federal control, such as Fort Sheridan, it follows naturally that persons residing on Fort Sheridan may not vote in a referendum election to increase the tax rate for the school district.

For the reasons explicated below, we agree with the defendants that persons residing on the Fort Sheridan military reservation were eligible to vote in the referendum and conclude, therefore, that the trial court did not err in entering the order from which the plaintiffs appeal.

Section 3 — 1 of the Illinois Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 3 — 1), which prescribes the general qualifications for the exercise of the voting franchise in this State, provides in relevant part that any person residing “in this State” and in the particular election district for 30 days prior to any election is entitled to vote in the election “for all offices and on all propositions.” The statute recites further that any military establishment situated within the boundaries of Illinois is “in this State,” even though the Federal government may exercise exclusive jurisdiction over the installation.

Section 9 — 1 of the Illinois School Code (Ill. Rev. Stat. 1983, ch. 122, par. 9 — 1) provides that “[a]ll school elections shall be governed by the general election law of the State.” Section 9 — 1.1 of the same enactment (Ill. Rev. Stat. 1983, ch. 122, par. 9 — 1.1) states that “the time and manner of conducting such referendum” submitted pursuant to the School Code “shall be in accordance with the general election law of the State.” The next section of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 9 — 2), which pertains in part to the question of referenda, defines a “voter” as “a person qualified to vote under the general election law.” Lastly, section 17 — 3 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 17 — 3) prescribes that, with respect to a school district having a population of less than 500,000 inhabitants, the school board may submit any proposition “to increase the annual tax rate for educational purposes *** to the voters of such district ***.” (Emphasis added.)

We observe, initially, that there is nothing in the Illinois Constitution or statutes that prohibits a person living on a military reservation from voting in an election, provided that that person fulfills the statutory voting requirements the State prescribes for its voters. More importantly, an examination of the statutory enactments to which we have referred above establishes clearly (1) that the legislature has extended the voting franchise to persons residing on a military reservation located within Illinois, and (2) that this general election franchise includes the right to vote on referenda or propositions to increase the annual tax rate for the school district that are submitted to the voters pursuant to section 17 — 3 of the School Code.

Although there is authority in other jurisdictions holding that a person who resides on a military installation over which the Federal government has exclusive control has no right to vote in certain elections (see Evans v. Cornman (1970), 398 U.S. 419, 423 n.3, 26 L. Ed. 2d 370, 375 n.3, 90 S. Ct. 1752, 1755 n.3; Landgon v. Jaramillo (1969), 80 N.M. 255, 454 P.2d 269; Annot., 34 A.L.R.2d 1193, 1195-96 (1954), and later case service 360-61 (1977)), it is “within the prerogative of the [Illinois] legislature to grant the right to vote to persons residing on military reservations even where the [Fjederal government has exclusive jurisdiction ***, because it is entirely within its province to prescribe the conditions upon which the voting franchise may exist within our [S]tate” (Rothfels v. Southworth (1960), 11 Utah 2d 169, 172, 356 P.2d 612, 614; accord, Montoya v. Bolack (1962), 70 N.M. 196, 206, 372 P.2d 387, 394).

We conclude that the Fort Sheridan military personnel and their dependents whose votes were challenged here, if otherwise qualified to vote under Illinois law, were eligible voters in the instant referendum election. See Carrington v. Rash (1965), 380 U.S. 89, 93-97, 13 L. Ed. 2d 675, 679-80, 85 S. Ct. 775, 778-80; Arapajolu v. McMenamin (1952), 113 Cal. App. 2d 824, 830-32, 249 P.2d 318, 322-23; Borough of Oceanport v. Hughes (1982), 186 N.J. Super. 109, 113-14, 451 A.2d 966, 968; Township of New Hanover v. Kelly (1972), 121 N.J. Super. 245, 249, 296 A.2d 554, 556; Rothfels v. Southworth (1960), 11 Utah 2d 169, 172-76, 356 P.2d 612, 614-17; cf. Evans v. Cornman (1970), 398 U.S. 419, 26 L. Ed. 2d 370, 90 S. Ct. 1752 (persons living in a Federal enclave were entitled to vote in Maryland elections).

In accordance with the views expressed above, we affirm the judgment of the circuit court of Lake County.

Affirmed.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    EDWARD HAEFLINGER, Plaintiff-Appellee, v. THE CITY OF WOOD DALE, Defendant-Appellant.
    Second District
    No. 84—0001
    Opinion filed December 31, 1984.

      Erwin W. Jentsch, of Bradtke & Zimmerman, of Mt. Prospect, for appellant.
    No brief filed for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, city of Wood Dale, appeals from a lower court grant of an injunction barring defendant from collecting sewer “user fees” from plaintiff, Edward Haeflinger, for sewer use prior to October 12, 1982, based upon the equitable theories of estoppel and laches.

On appeal, defendant maintains that the trial court improperly invoked the equitable defenses of estoppel and laches against defendant, a municipal corporation.

The facts in the instant case were agreed to below by written stipulation of the parties. In summary, the agreed facts provide that Edward Haeflinger, plaintiff, is the successor in interest to certain real estate located within the city of Wood Dale. The particular property is subject to an agreement between plaintiffs predecessors in title, the Masons, and defendant, executed on November 5, 1962. This agreement recited that defendant (then the village of Wood Dale) had installed a sanitary sewer system, and also contained provisions assessing fees for initial connections to the system pursuant to Wood Dale Ordinance No. 235. The 1962 agreement further provided that the Masons (plaintiff’s predecessor in title) had an adequate septic tank and did not wish to make connection to the system at that time. The Masons did, however, agree to pay defendant the sum of $1,750, the full amount of the initial “connection fee.” In return, the Masons obtained the right to make connections in the future, at their own expense, without incurring any further “connection fees” payable to defendant. This agreement, and the benefits conferred thereunder, also applied to any successors in interest to the Masons’ property, namely plaintiff in the instant case. The 1962 agreement did not contain any provisions pertaining to sanitary system “user fees,” authorized by statute (see Ill. Rev. Stat. 1981, ch. 24, par. 11 — 141—7), to be paid for sewer use after connection.

On October 12, 1982, while engaged in the construction of a new sewer system, defendant discovered plaintiff had previously made connection to the sewer system. At no time from November 5, 1962, until October 12, 1982, did the defendant municipality seek to collect sewer “user fees” from plaintiff. Defendant’s records did, however, indicate that a sewer tax had been assessed against the property on April 25, 1974. On or about December 6, 1982, defendant filed a lien claim against plaintiff’s property in the amount of $758.64 for approximately 8V2 years of prior sewer use. In response, on January 12, 1983, plaintiff filed a petition for equitable relief seeking a mandatory injunction ordering defendant to file a release of lien on the ground that defendant was precluded from enforcing its claim under the doctrines of equitable estoppel and laches.

After a hearing on the merits, based upon the agreed stipulation of facts, the trial court granted plaintiff’s petition barring defendant from collecting any fees for sewer use prior to October 12, 1982. It is this ruling from which the defendant municipality appeals. Although no appellate brief was filed by the plaintiff, we may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

While the trial court gave no explanation of its ruling, it is apparent from the arguments of counsel below that the court found. the defendant was either equitably estopped or barred by laches from enforcing its claim. Although equitable estoppel and laches are usually asserted as affirmative defenses to a suit brought by another party, we perceive no difference in the application of the two doctrines in the context of plaintiff’s action here for an injunction in which he raised estoppel and laches in his pleadings and assumed the burden to prove them. See Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 236, 402 N.E.2d 613.

Defendant first contends that it is not estopped from collecting sewer “user fees” by reason of its failure to collect such fees in the past. Defendant asserts that a finding of equitable estoppel against a public' body is not favored, and, accordingly, plaintiff has failed to overcome the increased burden of proof necessary to invoke the doctrine, of equitable estoppel against a municipal corporation engaged in a governmental function.

Illinois law generally provides that the doctrine of equitable estoppel is applicable to municipal corporations. (Kenny Construction Co. v. Metropolitan Sanitary District (1971), 52 Ill. 2d 187, 197, 288 N.E.2d 1; Gregory v. City of Wheaton (1961), 23 Ill. 2d 402, 408, 178 N.E.2d 358; Budka v. Board of Public Safety Commissioners (1983), 120 Ill. App. 3d 348, 353, 458 N.E.2d 126.) However, where a governmental body is engaged in a matter of the exercise of its governmental functions, particularly those relating to public revenues, estoppel should only be invoked in extraordinary circumstances. People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 220, 306 N.E.2d 7; Tyska v. Board of Education (1983), 117 Ill. App. 3d 917, 930-31, 453 N.E.2d 1344; County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 12-13, 405 N.E.2d 1376.

Parties seeking to invoke the doctrine of equitable estoppel against a municipality must establish: (1) an affirmative act on the part of the municipality; (2) that the affirmative act induced the complained-of action, and (3) that they substantially changed their position as a result of their justifiable reliance. (American National Bank & Trust Co. v. Arlington Heights (1983), 115 Ill. App. 3d 342, 347, 450 N.E.2d 898; Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 792, 331 N.E.2d 380.) The affirmative acts which induce reliance by a party must be acts of the municipality itself, such as legislation by a city council, rather than merely the unauthorized act of a ministerial officer or a ministerial misinterpretation. In re Application of Rosewell (1984), 126 Ill. App. 3d 30, 35, 466 N.E.2d 1230.

The construction and maintenance of a sewer system is a proper exercise of a municipality’s governmental function. (See Ruth v. Aurora Sanitary District (1959), 17 Ill. 2d 11, 20, 158 N.E.2d 601; Spalding v. Granite City (1953), 415 Ill. 274, 279, 113 N.E.2d 567; People ex rel. Chicago Title & Trust Co. v. Mission Brook Sanitary District (1966), 76 Ill. App. 2d 423, 428, 222 N.E.2d 8; see also McQuillen, Municipal Corporations sec. 31 — 10, at 172 n.7.55 (3d ed. 1983 & 1984 Supp.).) Therefore, plaintiff bears an increased burden of establishing extraordinary circumstances in order to invoke the doctrine of equitable estoppel against defendant in the present case.

An examination of the stipulated facts reveals that plaintiff, contrary to the finding of the court below, has not met this burden. Defendant’s failure to collect user fees for a 20-year period is not the type of affirmative act or conduct upon which plaintiff could justifiably rely in invoking estoppel against a municipality. At the very most, defendant’s conduct amounted to mere nonaction or a ministerial misinterpretation on the part of the municipality, and it is clear that these are insufficient grounds to work an estoppel. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448, 220 N.E.2d 415; Gregory v. City of Wheaton (1961), 23 Ill. 2d 402, 408, 178 N.E.2d 358; Cook County v. Patka (1980), 85 Ill. App. 3d 5, 13, 405 N.E.2d 1376.) Moreover, plaintiff, on this record, fails to establish how he substantially changed his position as a result of his reliance on the defendant’s omission. Estoppel is based on proof, not speculation, and it is the one claiming estoppel who has the burden of proof. (Cook County v. Patka (1980), 85 Ill. App. 3d 5, 14, 405 N.E.2d 1376.) Plaintiff has produced no evidence enabling him to overcome this burden.

The record neither discloses any affirmative conduct by defendant upon which plaintiff relied to his detriment, which is necessary to invoke the doctrine of equitable estoppel, nor establishes extraordinary circumstances. Therefore, we conclude that defendant, a municipal corporation, is not equitably estopped from collecting past due sewer “user fees” under the circumstances presented in the instant case.

In support of its next contention that it is not barred by laches, defendant raises two arguments. Initially, defendant maintains that it is engaged in a governmental function and that the doctrine of laches is inapplicable to government bodies in the exercise of governmental functions. In its alternative argument, defendant contends, assuming laches is applicable, that the stipulated facts preclude the application of laches in the instant case, since it did not have knowledge plaintiff had been using the sewer system until the connection was inadvertently discovered while constructing a new sewer on October 12, 1982.

While there is language in several Illinois appellate court decisions supporting defendant’s contention that the doctrine of laches does not apply to governmental bodies in the exercise of governmental functions (see, e.g., Campbell v. Village of Oquawka (1975), 28 Ill. App. 3d 1038, 1042, 328 N.E.2d 903; In re Estate of Vandeventer (1973), 16 Ill. App. 3d 163, 165, 305 N.E.2d 299; In re Estate of Grimsley (1972), 7 Ill. App. 3d 563, 566, 288 N.E.2d 66; Shoreline Builders Co. v. City of Park Ridge (1965), 60 Ill. App. 2d 282, 294, 209 N.E.2d 878), our supreme court has held that any immunity from laches enjoyed by the State is of a qualified nature (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448, 220 N.E.2d 415), and is not an absolute immunity as maintained by defendant. Thus, we believe the extraordinary circumstances necessary for invoking equitable estoppel against a municipality, as discussed above, are similarly applicable when laches is asserted as an equitable defense against a claim by a government body engaged in a matter of the exercise of its governmental functions. See Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448, 220 N.E.2d 415.

Laches will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, causes prejudice to the adverse party. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12; Village of Northbrook v. County of Cook (1984), 126 Ill. App. 3d 145, 148, 466 N.E.2d 1215.) However, the doctrine of laches will not be invoked where the party against whom laches is asserted had no knowledge of the relevant facts upon which his or her claim is based, unless occasioned by a lack of diligence. See Getto v. City of Chicago (1981), 86 Ill. 2d 39, 53, 426 N.E.2d 844; Ross v. City of Geneva (1978), 71 Ill. 2d 27, 34, 373 N.E.2d 1342.

In the present case, the stipulated facts indicate that prior to October 12, 1982, the date plaintiff’s connection was discovered, defendant was unaware that plaintiff was connected to, and had been using, the city’s sanitary sewer system. Plaintiff’s assertion that the defendant had actual knowledge by reason of the 1974 sewer tax listed on its records is unpersuasive. This tax is not representative of plaintiff’s actual connection and use of the sewer system, but, rather, evidences that a sewer had been constructed in that area, since the 1974 tax applied across-the-board to all residents irrespective of whether they had made actual connection to the system. Similarly, the agreed stipulation of facts and record do not reveal any evidence indicating defendant’s actual knowledge of plaintiff’s previous use of the sanitary sewer system prior to October 12,1982.

Since defendant did not have actual knowledge of the relevant facts and this was not occasioned by its own lack of diligence, we find the doctrine of laches inapplicable in the present situation.

Accordingly, we conclude that the equitable defense of laches does not preclude defendant, a municipal corporation, from collecting past due sewer “user fees” under the circumstances in the instant case.

For the foregoing reasons, the decision of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

NASH, RJ., and HOPF, J., concur.


author: JUSTICE LINDBERG

text:
    FOUR LAKES MANAGEMENT & DEVELOPMENT COMPANY, Plaintiff-Appellant, v. LEE BROWN et al., Defendants-Appellees.
    Second District
    No. 84—0145
    Opinion filed December 28, 1984.

      Wayne S. Shapiro, of Chicago, for appellant.
    No brief filed for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Four Lakes Management and Development Company, appeals the granting of the motion to quash service of summons filed by defendants Lee and Nancy Brown before the trial court of Du Page County.

Plaintiff brought a forcible entry and detainer action against defendants for possession of an apartment occupied by defendants and a judgment for rent and late charges, plus costs. The trial court entered a default judgment in favor of the plaintiff, defendants having failed to appear. Defendants filed a special and limited appearance and a motion to quash service of summons. The motion to quash was granted, and plaintiff appeals.

The record reveals the following facts: the forcible entry and de-tainer action against both defendants was filed on August 22, 1983, seeking possession of an apartment located at 5527 East Lake Drive, Apartment E, Lisle. The sheriff’s return of service by Deputy LeRoy Hotter indicates that on August 29, 1983, at 7:35 p.m., he personally served Nancy Brown, female, white, approximately 30 years of age, and served her husband, Lee Brown, by substitute service on her as well as by mailing a copy of the summons to their residence.

On September 7, 1983, a default judgment was entered against defendants for possession and $1,141 in damages and costs. On November 9, 1983, a citation to discover assets was filed upon defendants, and on December 14, 1983, defendants filed a special and limited appearance and a motion to quash service of summons.

In the motion to quash, defendants alleged that the purported service of summons was of no effect in that defendant Nancy Brown could not have been the person actually served, since she no longer occupied the apartment on the date of the alleged service of summons. She had vacated the premises on or about August 6, 1983, and never returned to the premises thereafter. Nancy Brown’s affidavit in support of the motion stated that she and her husband had vacated the premises on or about August 5, 1983, that they were never on the premises thereafter, and that she was never personally served with the summons in this matter. Defendant’s affidavit also refers to a five-day notice which is alleged to have been served upon the defendants on August 12, 1983, “by posting a copy on the main door of the within described premises no one being in actual possession thereof.” The process server subsequently filed an affidavit stating that, at the time he served the five-day notice, he was unable to ascertain whether or not the apartment was occupied.

A hearing on the motion to quash was held January 1984, at which defendant Nancy Brown and the deputy sheriff testified. Deputy Hotter testified to the following: he served approximately 5,000 papers a year; the person who answered the door on August 29, 1983, at 5527 East Lake Drive, Apartment E, identified herself as Nancy Brown; she said Lee Brown was her husband; the deputy served her personally, explaining what the writ was; he further served her on Lee Brown’s behalf, telling her the paper was for him; he thereafter filled out the worksheet with the details of the service, and signed and submitted the sheriff’s return. On cross-examination, Deputy Hotter stated that he could not definitely remember the service of this particular summons. Defense counsel pointed out that on the deputy’s worksheet, the deputy had initially put a check mark in the “not found” box, which he then crossed out and checked the “personal service” box. The deputy responded that he “usually make[s] mistakes once in a while.”

Nancy Brown testified to the following: she was not aware of the lawsuit until she was served (in November 1983) with a citation to discover assets; she moved from the apartment in question on August 6, 1983, leaving all the keys there; she was never served with a five-day notice or a summons in this matter; and her husband was not in court because he was in the hospital. On cross-examination, she testified that, when they moved from the apartment on August 6, they temporarily lived with her uncle, and they later moved to the house which they had purchased. She could not remember the date they purchased the house, but they did not move into it until the end of August, when it was completed.

At the conclusion of the hearing, the trial court granted defendants’ motion to quash. The court commented that it found Mrs. Brown’s testimony credible, and he believed the deputy sheriff was mistaken in his completion of the worksheet.

Plaintiff’s notice of appeal from the order of January 26, 1984, asks this court to vacate the order of the trial court granting defendants’ motion to quash. Plaintiff also requests an order requiring defendants to appear for the citation hearing.

We initially note that appellees have not submitted a brief in this appeal. However, pursuant to the guidelines in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 130, we have chosen to consider and decide the merits of the appeal.

The single issue raised by the plaintiff on appeal is whether the trial court abused its discretion in granting defendants’ motion to quash the service of summons. Plaintiff submits that the sheriff’s return showing service cannot be set aside based merely upon the uncorroborated testimony of defendant Nancy Brown. We agree.

As a general rule, the sheriff’s return should be considered prima facie evidence that the process was properly served upon the defendant in person, and it should not be set aside unless the return has been impeached by clear and satisfactory evidence. (In re Jafree (1982), 93 Ill. 2d 450, 455; see Ill. Rev. Stat. 1983, ch. 110, par. 2— 203(a).) In Jafree, the supreme court concluded that respondent’s affidavit and that of his client denying personal service did not constitute clear and satisfactory evidence sufficient to overcome the presumption established by the sheriff’s return. Likewise, in Whitworth v. Morgan (1977), 46 Ill. App. 3d 292, 360 N.E.2d 1198, defendant’s self-serving testimony that he had not been served and corroborating testimony of his wife and son fell short of clear and satisfactory evidence needed to rebut the presumption of service. An uncorroborated affidavit by a party allegedly served denying service is insufficient to contradict a sheriff’s return. Marnik v. Cusack (1925), 317 Ill. 362, 364; Miura v. Famous Cab Co. (1982), 107 Ill. App. 3d 803, 808, 438 N.E.2d 530, 534.

The only evidence indicating the lack of personal service on defendant Nancy Brown consists of her affidavit and testimony that she was not served with process, that she had moved from the apartment in question three weeks before the purported service was made, and that she had never returned to the premises. Defendants presented no corroboration or documentation to support her contention that she was not served with summons. (See Robinwoods West, Inc. v. Kramer (1970), 128 Ill. App. 2d 49, 53, 262 N.E.2d 332, 334.) There is no supporting evidence that she, in fact, vacated the premises on or about August 6, 1983, that she then resided with her uncle, or that she purchased or contracted to purchase a home. Absent any such corroboration or documentation, Nancy Brown’s affidavit and testimony do not constitute clear and satisfactory evidence sufficient to overcome the sheriff’s return and testimony. (Miura v. Famous Cab Co. (1982), 107 Ill. App. 3d 803, 438 N.E.2d 530.) Therefore, we conclude that the personal service of summons on defendant Nancy Brown was erroneously quashed.

As to substitute service on Lee Brown, section 2 — 203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 203(a)), in relevant part, provides:

“(a) Except as otherwise expressly provided, service of summons upon an individual defendant shall be made ***(2) by leaving a copy at the defendant’s usual place of abode, with some person of the family, of the age of 13 years or upwards, and informing that person of the contents thereof ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 203(a).)

Thus, in substitute service there is an essential element, service at defendant’s “usual place of abode,” which may not, and generally would not, be within the personal knowledge of the process server. Where the question to be determined is whether it is the defendant’s “usual place of abode,” the return of the sheriff upon such an issue cannot be accepted as proof of fact. (Trust Co. v. Sutherland Hotel Co. (1945), 389 Ill. 67, 73; Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 386.) That portion of the return may be attacked by an affidavit, and where there are in the record no counteraffidavits contradicting it, such affidavits will be taken as true. Chiaro v. Lemberis (1960), 28 Ill. App. 2d 164, 172, 171 N.E.2d 81, 85.

Facts that service was made upon a person who said her name was Nancy Brown and the place where it was made are within the personal knowledge of the officer. Those facts cannot be contradicted by the uncorroborated affidavit of the defendant. (Nibco, Inc. v. Johnson (1983), 98 Ill. 2d 166, 172-73, citing with approval Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 309 N.E.2d 690.) However, in Nibco the court concluded that an issue of fact arose for the trier of fact to resolve, because the deputy testified to a fact not within his personal knowledge which was contradicted by affidavit. A similar credibility issue exists in the present case, because, while the deputy testified the location where he effected substitute service was defendants’ usual place of abode, this fact was not within his personal knowledge and was denied in Nancy Brown’s affidavit.

Thus the trial court, as to the issue of substitute service, had only the evidence of Nancy Brown. She testified that Lee Brown did not live at the service address. While her affidavit and testimony were impeached by the deputy’s testimony that a person fitting her description told him Lee Brown lived there, the issue was one of fact resolved against plaintiff by the trier of fact. Its judgment was not against the manifest weight of the evidence and must be affirmed. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352.

The judgment of the circuit court of Du Page County is affirmed in part, as to the quashing of service upon Lee Brown, reversed in part, as to the quashing of service upon Nancy Brown, and remanded.

Affirmed in part, reversed in part, and remanded.

REINHARD and UNVERZAGT, JJ., concur.