author: JUSTICE McCULLOUGH

text:
    RANDOLPH WILLIAMS, Petitioner-Appellant, v. THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee.
    Fourth District
    No. 4—84—0468
    Opinion filed February 5, 1985.

      Randolph Williams, of Boca Raton, Florida, for appellant, pro se.

    Thomas J. Difanis, State’s Attorney, of Urbana (Trisha Crowley, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The petitioner, Randolph Williams, was arrested six times in Champaign County between November 7, 1977, and November 12, 1980. The charges ranged from disorderly conduct to aggravated arson. The charges filed after five of the arrests were subsequently dismissed. The sixth resulted in conviction for theft and disorderly conduct, but the United States Court of Appeals for the Seventh Circuit ruled that Williams had been denied effective assistance of counsel. A writ of habeas corpus was issued after the State failed to retry Williams within 90 days.

Pursuant to section 5 of “An Act in relation to criminal identification and investigation” (Ill. Rev. Stat. 1983, ch. 38, par. 206—5), Williams petitioned for return of all records of identification pertaining to the six arrests and for the expunction of his arrest records. Regarding his conviction that was overturned, he requested the court to require the State’s Attorney and department of probation to inform all relevant State and Federal authorities that the conviction was no longer valid. He further prayed that the sheriff’s department be required to expunge from its records any reference to his confinement and that the local police and sheriff’s departments be enjoined for the next two years from sending any reports about him to any agency without first submitting ■ them to the court. The State filed an objection to the petition along with certified copies of Williams’ 1960 Massachusetts conviction for operating a motor vehicle without authority and his 1962 Florida conviction for using a vehicle without the owner’s consent. After Williams failed to appear at his hearing, the trial court found he was not entitled to the relief requested under the statute.

Section 5 provides in part that whenever a person, not having been previously convicted of any criminal offense or municipal violation, charged with a violation of a municipal ordinance or a felony or a misdemeanor, is acquitted or released without being convicted, the chief judge of the circuit or any judge of that circuit designated by the chief judge may, upon verified petition of the defendant, order the record of arrest and the records of the circuit court relating to the arrest expunged from the official records of the arresting authority and the records of the clerk of the circuit court. That section, separate from the matter of expunction, also provides that upon a person’s being released without being convicted, he has a right to be returned to him all photographs, fingerprints or other records of identification.

The defendant in this case, Mr. Williams, included in his petition for expungement the relief asking that the photographs, fingerprints, etc., be returned to him. Although this is not a proper matter of expunction, the State’s Attorney concedes that the defendant is entitled to these particular matters and records.

The petitioner argues section 5 violates his fourteenth amendment rights for two reasons. First, he contends that denying him relief under the statute merely because of two convictions over 20 years old constitutes cruel and unusual punishment. The practice of keeping records on previous offenders, however, is hardly “punishment which ‘shocks the most fundamental instincts of civilized man.’ ” (In re Sekeres (1971), 48 Ill. 2d 431, 434, 270 N.E.2d 7, 9.) We note that in People v. Glisson (1978), 69 Ill. 2d 502, 372 N.E.2d 669, the supreme court held a petitioner was not entitled to expunction under the statute due to a misdemeanor conviction over 30 years old.

The petitioner also asserts section 5 denies him equal protection of the law. The statute grants relief only to those with no previous convictions. Statutory classifications are presumed to be valid, and the burden of showing invalidity rests on the challenging party. A classification will be upheld if any state of facts may reasonably be conceived which would justify it. (People v. Rhoades (1979), 74 Ill. App. 3d 247, 254, 392 N.E.2d 923, 928.) Although the court did not specifically address equal protection, the petitioner’s argument was adequately answered in Young v. Keefe (1978), 64 Ill. App. 3d 824, 825-26, 381 N.E.2d 1047, 1048:

“[T]he adoption of that part of section 5 was an attempt to balance competing concerns. On the one hand there is the legitimate desire on the part of law enforcement agencies to keep such records for use as tools in effective investigation and crime prevention. Alternatively, there are legitimate concerns for the privacy rights of persons falsely accused of crime and the potential problems that an arrest, alone, can cause an individual. (See People v. Valentine, 50 Ill. App. 3d 447, 450 [365 N.E.2d 1082].) In accommodating those conflicting interests, the legislature has limited the class of persons who may petition for an expunction of their arrest records to those who have not been convicted previously.”

The petitioner also maintains section 5 is a bill of attainder. His failure to make this contention at the trial court level amounts to a waiver of the issue. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Furthermore, we fail to see any merit in this argument. See Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.

In his brief, the petitioner asserts the records of the clerk of the court fail to show that his conviction was overturned in Federal court. The petitioner contends that the trial court erred in not directing the clerk to amend the record to reflect the habeas corpus proceeding. No such allegation was made in the original petition, nor was any such relief requested. The State maintains the record is still in Federal court and cannot be amended until it is returned. Not only did the petitioner fail to raise the issue, but the only proof of the Federal court’s decision is an uncertified copy of that order filed by the petitioner. We find no error here.

Finally, the State concedes the statute unequivocally entitles the petitioner to the return of any records of identification involved in the six arrests. (People v. Glisson (1978), 69 Ill. 2d 502, 505, 372 N.E.2d 669, 670.) The trial court, therefore, erred in not ordering their return.

For these reasons, that part of the trial court’s order refusing to expunge the petitioner’s arrest records is affirmed; that part denying the return of all records of identification taken with respect to and pertaining to the six arrests is reversed, and the cause is remanded with directions to enter an order requiring the return of such records.

Affirmed in part, reversed in part, and remanded with directions.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    TOWN OF COTTON HILL ROAD DISTRICT, Petitioner-Appellee, v. GEORGE L. HOCKENYOS, Respondent-Appellant (Leo D. Leigh et al., Defendants).—TOWN OF COTTON HILL ROAD DISTRICT, Petitioner and Cross-Respondent-Appellee, v. SPRINGFIELD MARINE BANK, Trustee, et al., Respondents and Cross-Petitioners-Appellants.
    Fourth District
    Nos. 4—84—0178, 4—84—0350 cons.
    Opinion filed January 24, 1985.

      Giffin, Winning, Lindner, Newkirk, Cohan & Bodewes, P.C., of Springfield (James M. Winning and R. Mark Mifflin, of counsel), for appellant George L. Hockenyos.
    Harold M. Olsen and Nils A. Olsen, both of Olsen & Olsen, of Springfield, for other appellants.
    Robert E. Stine, of Stine & Whiter, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

These consolidated appeals arise from condemnation proceedings initiated on December 1, 1982, when petitioner, town of Cotton Hill Road District, filed a separate petition in the circuit court of Sangamon County seeking to obtain right-of-way to widen and change the approaches to a bridge which was part of a township road. In cause No. 4—84—0350 the Springfield Marine Bank, as trustee, Paul Joseph Mrasak, Catherine Mrasak, Charles Cousins, and unknown owners were made parties respondent. In cause No. 4—84—0178 the respondents were George L. Hockenyos, Leo D. Leigh, Phyllis Crews, and Leland Leigh. In each case the respondents filed traverses. The cases were consolidated for hearing on the traverses. The court denied the traverses. Separate trials to determine damages and compensation were held. Final judgments were entered in the cases on December 29, 1983, and February 2, 1984, respectively.

Respondents have appealed. Respondents in cause No. 4—84— 0350 contend that error occurred at the trial in their case. We will discuss this subsequently. The major thrust of respondents’ contentions in that case and the only contention of respondents in the other case concerns the propriety of the ruling upon the traverses in which the respondents contended that the petitioner lacked authority to condemn. In Griffie v. Spanski (1980), 84 Ill. App. 3d 118, 404 N.E.2d 1128, we held that when a township or road district seeks to condemn property in order to widen or otherwise alter a township road, the provisions of article 6, division 3, of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 6—301 et seq.) must be followed. We also held that the failure of the condemning authority to do so could be raised in the traverse to the petition to condemn. Respondents here maintain that petitioner lacked authority to condemn because it failed to follow those provisions of the Code.

Respondents’ contention that petitioner did not comply with the provisions of article 6, division 3, rises from the following sequence of events and circumstances.

Section 6—303 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6— 303) sets forth two methods of initiating procedures whereby township roads may be widened or altered, or new roads laid out. One such procedure is initiated upon the issuance of a certificate by the Illinois Department of Transportation. That was not done here. The other is by petition of a required number of voters in the township or road district. Section 6—305 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6—305) states that when such a petition is presented to the township or district highway commissioner, that officer shall hold a hearing upon prescribed notice. The commissioner is prohibited from approving the petition unless, after hearing the evidence, he finds that granting of the petition is in the “economic” and “public” interest and that certain persons residing within two miles of the portion of the road “proposed to be altered or vacated” will still have reasonable access to their farmland and to community and trade centers after the road is altered or vacated. Here, a proper petition was obtained at the request of the highway commissioner and presented to him. A hearing, upon proper notice, was held on November 10, 1982, and a memorandum of decision was signed by the commissioner and filed, as required, with the township clerk and a copy mailed to the county superintendent of highways. The memorandum of decision contained a finding that the proposed project was in the “economic” and “public” interest. Respondents maintain that any finding in regard to access was insufficient.

Section 6—307 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6— 307) states that upon the decision of the highway commissioner, and when as here, no appeal is taken, the commissioner shall cause a survey and plat of the road involved to be made. This was done here, but it was done before, rather than after, the hearing. In fact, the commissioner had not only done that, but had hired engineers and obtained some of the rights-of-way necessary for the widening, before a petition was presented. The evidence indicated that the commissioner did not have advice of counsel when these things were done. Then, when he obtained counsel and was advised of the necessity of proceeding by petition, he instigated the circulation of petitions. Respondents maintain that these activities prior to the hearing deprived respondents of due process and vitiated the subsequent proceedings. They also assert that the requirements for the survey and plat were not met because they were done before, rather than after, the hearing.

We do not agree that the respondents’ due process rights were violated. The essence of Griffie is that respondents were entitled to a hearing. The procedural deficiencies in this case would not, in any event, rise to the level of a deprivation of due process. Respondents maintain that the improper preliminary steps taken by the highway commissioner before the hearing rendered him unable to make a fair decision. They also assert that the commissioner lacked fairness because he had counsel prepare the form of the memorandum of decision prior to the hearing. Respondents do not argue that the hearing procedures of section 6—305 fail to meet due process requirements. Given the existence of the statutory provision that the highway commissioner must be the person to conduct the hearing, a situation much like the present is inevitable.

The nature of the commissioner’s work is such that he will inevitably have some predilection as to what work is needed to maintain and improve the roads and will have taken part in trying to promote the change. There is no procedure for the commissioner to recuse himself and have someone else conduct the hearing. If we hold that the activity of the commissioner here prevented him from holding a hearing, then the project sought here could never be initiated by petition during the commissioner’s tenure in office. Due process does not require a hearing officer to be completely independent of possible conflict of interest in a situation such as this. Furthermore, the prehearing drafting of a possible dispositional order or memorandum is not unusual in proceedings of this nature and does not indicate that the commissioner would not give fair consideration to the evidence.

We also conclude that the premature conduct of the commissioner did not render the proceedings invalid under the statute. In Township of Hagener v. Meyer (1946), 329 Ill. App. 508, 69 N.E.2d 516, the- court held that under similar statutory provisions as those in article 6, division 3, a surveyor hired by the highway commissioner to survey land sought for township road purposes had no authority to go upon the land sought prior to the holding of the required hearing. An order for an injunction prohibiting the landowners from interfering with the survey was reversed. Similarly, here, the respondents could have prevented surveyors from going on their lands, but petitioner’s failure to follow the sequence of the statutory requirements does not make the survey inaccurate. Any expenses incurred by petitioner prior to the holding of the hearing might be subject to objection, but the premature conduct upon the part of petitioner does not preclude it from later proceeding properly. While the survey and plat were made prematurely, to require the petitioner to go to the expense of procuring another survey and plat made after the hearing and memorandum of decision would be neither logical nor efficient. See Dickison v. Clark (1936), 363 Ill. 258, 2 N.E.2d 91.

Respondents maintain that the memorandum of decision did not conform to the requirements of section 6—305 of the Code. The pertinent part of that section states:

“No road shall be laid out, widened, altered or vacated unless the highway commissioner finds that such alteration or vacation is in the public and economic interest and further finds that any person residing or owning land within 2 miles of any portion of the road proposed to be altered or vacated shall still have reasonable access (but not necessarily a direct route) by way of a motor vehicle or other portable farm machinery commonly used in the area to farm land he owns or operates and to community and trade centers after the road is altered or vacated. Such findings shall be contained in the memorandum of decision signed by the highway commissioner.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 121, par. 6—305.)

In regard to the matter of access, the memorandum of decision found “that all persons residing or owning land within two miles of any portion of the road will still have reasonable access to community and trade centers after the road is altered.” Thus, the memorandum’s findings made no reference to access to land owned or operated by persons residing or owning land within the two-mile area.

Notably, the portions of section 6—305 requiring findings concerning access refer only to the alteration or vacation of a road, but not to the widening of such roads. The reason for this distinction is obvious. The altering of a road would ordinarily be considered to be a change in the course of the road. Such a change or the vacating of a road is likely to materially affect a farmer’s access to fields or towns. This is clearly what the drafters of section 6—305 sought to prevent. Here, the petition and memorandum of decision both spoke of an alteration in the road, but the evidence showed only that the road’s grade was to be changed and that the road was to be widened. This type of work would not affect access in any way, except directly from the field to the road. The landowners whose land was taken for right-of-way would be compensated for any loss of access that would result. If section 6—305 is interpreted to protect ingress and egress between field and road, then a township would have no power to improve a township road in a way that destroys the ingress and egress from a tract even when just compensation is paid. We do not interpret section 6—305 to have so intended.

Respondents also complain that petitioner failed to comply with section 6—902 of the Code (Ill. Rev. Stat. 1981, ch. 121, par. 6— 902). It requires the highway commissioners of the county in cooperation with the county superintendent of highways to select bridges to be repaired under a system of priorities. That section lists the following priorities in respective order of importance: (1) the “safe and expeditious transportation of school pupils”; (2) the movement of farm equipment and produce; (3) mail delivery routes; and (4) traffic needs of the public. State funds appropriated for bridges must then be spent in the order of priority. The evidence showed that rather than proceeding in this manner, the previously mentioned officials adopted a system of selecting bridges by rotating the selections among the townships. However, unlike the procedure for widening, altering or vacating of roads within the township or road district, the award of money to the township cannot work to the detriment of the residents and landowners of the township which article 6, division 3, seeks to protect. Compliance with section 6—902 would not logically be a condition precedent to the exercise of the power of eminent domain. We hold that it is not. The source of funds to finance a condemnation is not material to the right to condemn. (City of Chicago v. R. Zwick Co. (1963), 27 Ill. 2d 128, 188 N.E.2d 489.) The traverse was properly denied.

The respondents in case No. 4—84—0350 also contend that error occurred in the jury trial to determine compensation and damages. They maintain that the testimony of the single appraiser for the petitioner should be disregarded because he (1) made no investigation of erosion; (2) was not “familiar with the Erosion Control Act”; and (3) did not take into consideration ingress and egress to one particular tract. These were matters relating to the weight to be given to the appraiser’s testimony, but such matters did not require that the appraiser’s testimony be stricken or disregarded. Any weakness in his testimony does not require that a new trial be granted. The verdict was within the range of the testimony of the evaluation experts. Lake County Forest Preserve District v. Continental Illinois National Bank & Trust Co. (1976), 35 Ill. App. 3d 942, 343 N.E.2d 6.

We affirm for the reason stated.

Affirmed.

MILLS and WEBBER, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NEIL MUELLER, Defendant-Appellant.
    Fourth District
    No. 4—84—0194
    Opinion filed January 30, 1985.
    J. H. Weiner and Walter H. Hasten, both of Springfield, for appellant.

      John F. Dahlem, State’s Attorney, of Virginia, for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Concealment of homicidal deaths.

Tried at bench—guilty—30 months’ probation.

We affirm.

Neil Mueller shot and killed Art Pierson and his son, Roscoe Pier-son, on April 17, 1982, in Scott County.

Immediately after the shootings, Mueller placed the bodies in his pickup truck, drove to his farm in Scott County, and put the bodies in a hogpen. Upon returning to the farm after dinner, Mueller waited for his wife to retire and go to sleep. He then loaded the bodies back in his truck, drove into Cass County, and dumped the bodies off a bridge over Clear Creek.

Several days later, Mueller voluntarily told the police that he shot the Piersons and put their bodies in Clear Creek. Both bodies were subsequently recovered from Indian Creek, which is downstream of Clear Creek.

The Scott County State’s Attorney charged defendant with the murders of Art and Roscoe Pierson. The murder trial was held in Sangamon County after Mueller moved for a change of place of trial. At the murder trial, he admitted to shooting Art and Roscoe Pierson. He testified that, prior to the shooting, Art Pierson had threatened him on several occasions by stating he would “blow [defendant’s] head off.” On one occasion, Art Pierson, while driving a logging truck, had forced defendant’s car off the road into a ditch.

Mueller further testified that on the day of the shootings he was helping his brother check the condition of some cows which had been recently attacked by coyotes. Mueller was carrying a shotgun at that time. As he was chasing a calf, he came upon Art and Roscoe Pier-son. He testified that Roscoe was armed with a pistol and “shot once or twice.” Mueller returned fire with his shotgun. Art Pierson then came at Mueller with a chainsaw and Mueller shot him also.

The Sangamon County jury found Mueller not guilty of the murders of Art and Roscoe Pierson. On January 31, 1983, about 10 days after Mueller’s acquittal for the murders, the Cass County State’s Attorney filed charges against him for the concealment of the homicidal deaths of Art and Roscoe Pierson. (An amended information charged that Mueller concealed the Piersons’ deaths by placing their bodies in Clear Creek.)

Defendant filed a motion to dismiss the charges of concealment on the grounds that the prosecution was barred by defendant’s acquittal in the former murder prosecution. At the hearing on the motion to dismiss, the parties stipulated that prior to defendant’s trial for murder the Scott County State’s Attorney agreed with the Cass County State’s Attorney that defendant would be prosecuted in Scott County for murder only and that the Scott County State’s Attorney would not pursue prosecution for the concealment of the deaths.

Defendant’s motion to dismiss was denied. After waiving a jury trial on the concealment charges, all of the evidence was stipulated to, defendant was found guilty and sentenced to 30 months’ probation, 100 days of work release, and fined $20 pursuant to the Crime Victims Compensation Act (Ill. Rev. Stat. 1981, ch. 70, par. 71 et seq.).

I

Defendant argues that the prosecution for the concealment of the homicidal deaths was barred under section 3—4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 3—4(b)(1)). This section provides in part:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense *** if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution ***.’’ (Emphasis added.)

Defendant argues that he could have been convicted of concealment in the murder prosecution because the concealment of the homicidal deaths originated in Scott County and the Scott County State’s Attorney knew of the concealment at the time he charged defendant with murder. Defendant adds that evidence of the concealment had been introduced by the State in the murder trial to rebut his evidence of self-defense. Defendant’s argument rests on the premise that, as to each body, there was only one offense of concealment which originated in Scott County and continued into Cass County.

The State argues that section 3—4(b)(1) did not bar the prosecution for concealment of the homicidal deaths in Cass County. The gist of the argument is that defendant committed the offense of concealment of a homicidal death in Cass County by dumping the bodies into Clear Creek and that this offense was separate and distinct from any offense arising from acts occurring in Scott County. The State argues, therefore, that since the Scott County State’s Attorney had no authority to prosecute defendant for an offense occurring in Cass County, defendant could not have been convicted of such an offense in the murder trial. The State argues, therefore, that because defendant could not have been convicted of this offense in the murder trial, section 3—4(b)(1) of the Criminal Code of 1961 would not preclude the Cass County State’s Attorney from charging defendant with the concealment of homicidal deaths in Cass County.

We must decide, therefore, whether defendant’s act of dumping the bodies in Clear Creek constituted an offense of concealment of homicidal deaths distinct from any possible offenses arising from his placing the bodies in his hogpen in Scott County.

The legislature has defined concealment of a homicidal death as follows:

“A person commits the offense of concealment of homicidal death when he conceals the death of any other person with knowledge that such other person has died by homicidal means.” (Ill. Rev. Stat. 1981, ch. 38, par. 9—3.1(a).)

The offense of concealment of a homicidal death is comprised of two elements: (1) knowledge that a homicidal death has occurred; and (2) some affirmative act of concealment by the defendant. People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950; People v. Stiles (1977), 46 Ill. App. 3d 359, 360 N.E.2d 1217.

To determine whether defendant’s actions in Cass County gave rise to an offense of concealment distinct from any offenses arising from actions in Scott County, we begin with the supreme court’s decision in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. In King, the court formulated the basis by which a defendant could be convicted and sentenced on multiple offenses arising from interrelated acts. To this end, the court defined “act” as “any overt or outward manifestation which will support a different offense.” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.) In applying King, the supreme court stated in People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535, 538: “As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions and the imposition of concurrent sentences based upon them.”

Factors considered by some courts in determining whether conduct should be considered as one act or multiple acts is the time interval between the actions and the locations in which the actions occur. (See People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047; People v. Connor (1980), 82 Ill. App. 3d 652, 402 N.E.2d 862; People v. Childs (1978), 62 Ill. App. 3d 924, 379 N.E.2d 721.) However, courts have found multiple acts even in cases involving repeated blows with a knife or fist in quick succession. In People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, the defendant was convicted and sentenced for (among other things) four counts of aggravated battery. The evidence showed that the defendant attacked the victim in an alley, stabbing him once in the back and three times in the thigh. The defendant argued on appeal that because the acts involved were identical, directed against a single victim, and occurred in rapid succession, they could give rise to only one aggravated battery conviction. The court rejected this argument and affirmed the four aggravated battery convictions on the grounds that there were four distinct acts of stabbing and the offenses were not included offenses. See also People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.

The court noted in Post that each of the four aggravated battery offenses required proof of a different element, namely, aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, aggravated battery causing permanent disability, and aggravated battery causing permanent disfigurement. We do not believe, however, that King would preclude multiple convictions for identical offenses so long as the multiple act requirement was met.

We find that defendant’s act of dumping the bodies in Clear Creek, in conjunction with his knowledge that homicidal deaths had occurred, constituted the offense of the concealment of a homicidal death. Moreover, this offense was distinct from any offense arising from acts performed or offenses committed in Scott County. The Scott County State’s Attorney could not have properly instituted charges against defendant for the offenses of concealment committed in Cass County. (See People v. Simpson (1977), 54 Ill. App. 3d 504, 369 N.E.2d 915.) Since defendant could not have been properly charged with this offense, he could not have been convicted of it in the prior prosecution for murder.

We in no way condone the State’s lying-in-the-weeds tactics of prosecuting defendant for the concealment of the bodies shortly after he was acquitted on the murder charges. Nevertheless, we are constrained to hold that the prosecution for concealment of the homicidal deaths in Cass County was not barred by section 3—4(b)(1) of the Criminal Code of 1961.

II

Defendant next argues that the prosecution of the concealment charges violated his fifth amendment right by placing him in jeopardy twice for the same offense. We find no merit in this argument.

Where the offenses are distinct in law, the defense of former jeopardy is not available, regardless of how closely the offenses are connected in point of fact. (People v. Knapp (1959), 15 Ill. 2d 450, 155 N.E.2d 565; People v. Koblitz (1948), 401 Ill. 224, 81 N.E.2d 881.) In the present case, not only are the murder and concealment charges distinct in law, but the facts giving rise to each offense were clearly separate and distinct. All of the cases cited by defendant in his brief involve situations where the subsequent prosecution was based on the same act which gave rise to the former prosecution.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE STOUDER

text:
    JOHN A. SMITH et al., Plaintiffs-Appellants, v. MICHAEL JONES, Director of the Illinois State Lottery, et al., Defendants-Appellees.
    Third District
    No. 3—84—0164
    Opinion filed January 23, 1985.
    Rehearing denied March 5, 1985.
    Wayne Harvey, of Harvey & Stuckel, Chartered, and Richard Parsons, both of Peoria, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Vincenzo Chimera, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This suit was brought by the plaintiffs-appellants, John Smith and Dale Livingood, against the defendants-appellees, Michael Jones, Director of the Illinois State Lottery, and the Illinois State Lottery. The circuit court of Peoria County granted defendants’ motion to dismiss plaintiffs’ second amended complaint, which sought declaratory and injunctive relief in connection with the alleged breach of contract and fraud of the defendants in the sale of Illinois State Lottery tickets.

The facts are disclosed in plaintiffs’ second amended complaint. On June 18, 1983, each plaintiff purchased tickets for the “Lotto” drawing to be held that day. Each plaintiff correctly picked the winning numbers, as did 76 other people. The defendants offered to pay each plaintiff $9,544.50, representing x/78 of $744,471. Plaintiffs allege in substance that the defendants represented there would be a minimum grand prize each week of at least $1,000,000 to be paid to the winner or divided among the winners. The drawing in issue was actually alleged to be worth $1,750,000, because there had been no winner the previous week. The plaintiffs filed this complaint and petition for a temporary restraining order alleging breach of contract and fraud by the defendants for failure to pay each plaintiff x/78 of $1,750,000. It is the representation concerning dividing the grand prize among multiple winners which the plaintiffs allege is fraudulent.

The defendants’ motion to dismiss plaintiffs’ cause of action contained several grounds for dismissal. However, the trial court granted the motion based solely on plaintiffs’ failure to exhaust their administrative remedies, relying on Foster v. Allphin (1976), 42 Ill. App. 3d 871, 356 N.E.2d 963, as controlling. Our decision is likewise limited to the issue decided by the trial court and not to any other issue raised on appeal.

Section 7.3 of the Illinois Lottery Law provides for “hearings upon complaints charging violations of this Act or of regulations thereunder ***.” (Ill. Rev. Stat. 1983, ch. 120, par. 1157.3.) Section 25 of the Illinois Lottery Law allows any party adversely affected by a final order or determination to seek judicial review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3—101 et seq.). (Ill. Rev. Stat. 1983, ch. 120, par. 1175.) The general rule is judicial review of an administrative decision may not be had until the aggrieved party has exhausted all administrative remedies. (Jackson Park Yacht Club v. Illinois Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 417 N.E.2d 1039.) The purpose underlying the doctrine of exhaustion of administrative remedies is to allow administrative agencies to correct their own errors, clarify policies, and reconcile conflicts before resorting to judicial relief. In this manner, the aggrieved party may succeed before the agency, rendering judicial review unnecessary. (Kenilworth Insurance Co. v. Mauck (1977), 50 Ill. App. 3d 823, 365 N.E.2d 1051.) An exception to the doctrine of exhaustion of administrative remedies is fraud. See In re Application of County Treasurer (1977), 53 Ill. App. 3d 760, 368 N.E.2d 1127; Cummings v. Commonwealth Edison Co. (1966), 64 Ill. App. 2d 320, 213 N.E.2d 18.

A review of the record in the present case discloses that the gist of plaintiffs’ cause of action is generally grounded in fraud. We find, therefore, that the theory of plaintiffs’ failure to exhaust administrative remedies relied on by the trial court is erroneous and that the Foster case is not dispositive because it did not involve any allegations of fraud.

Accordingly, the judgment of the circuit court of Peoria County is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE TRAPP

text:
    DANNY J. PEDIGO, d/b/a Pedigo Sod Company, Plaintiff-Appellant, v. TOM JOHNSON, Director, Department of Revenue, Defendant-Appellee.
    Fourth District
    No. 4—84—0154
    Opinion filed January 30, 1985.

      Danny J. Pedigo, of Springfield, for appellant, pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Eugene P. Schmittgens, Jr., Assistant Attorney General, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Danny J. Pedigo, a pro se plaintiff, filed suit to determine whether the decision of defendant Illinois Department of Revenue was void. The circuit court of Sangamon County dismissed the complaint on res judicata grounds, and plaintiff appeals.

After a hearing on August 21, 1979, the Department determined plaintiff was liable for arrears of taxes of approximately $15,600. Plaintiff filed suit for judicial review, but the trial court affirmed the Department’s assessment. We, in turn, affirmed the trial court’s judgment in Pedigo v. Department of Revenue (1982), 105 Ill. App. 3d 759, 434 N.E.2d 860 (hereinafter referred to as Pedigo I). The supreme court later denied leave to appeal. Pedigo v. Department of Revenue (1982), 91 Ill. 2d 572.

Not satisfied with the results obtained in Illinois courts, plaintiff filed suit in Federal court pursuant to the Federal Civil Rights Act of 1871 (42 U.S.C. sec. 1983 (1982)). The Federal District Court dismissed the suit, holding that our decision in Pedigo I had already addressed the issues raised in plaintiff’s complaint. Plaintiff appealed, but the United States Court of Appeals for the Seventh Circuit dismissed the case for lack of jurisdiction.

On November 10, 1983, plaintiff again filed suit in the circuit court of Sangamon County. He alleged the Department’s prior determination was void. The trial court dismissed the action on res judicata grounds.

Plaintiff contends the Department failed to comply with section 10 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1010). Section 10 outlines the requirement for notice of a hearing in a contested case under the Act. Plaintiff made this same argument on appeal in Pedigo I. We refused to consider the issue, stating:

“Despite this omission in the notice, we note that plaintiff failed to object at any point to the notice issued by the Department below. As such, any claim by plaintiff that the notice did not comply with section 10 will not be considered inasmuch as this matter has been waived by plaintiff’s failure to object to the omission of the aforementioned items.” (Pedigo v. Department of Revenue (1982), 105 Ill. App. 3d 759, 762, 434 N.E.2d 860, 863.)

The Department maintains a doctrine of res judicata precludes plaintiff from raising the notice issue now.

Res judicata prohibits repetitive litigation in an effort to obtain judicial economy and to protect litigants from the burden of retrying an identical cause of action with the same party or a privy. Under the doctrine, a final judgment rendered by a court of competent jurisdiction on the merits bars absolutely a subsequent action involving the same cause of action or issue between the same parties or their privies. Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834, 838.

The res judicata effect affixes to administrative decisions that are judicial in nature. (Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620.) After a review of such a decision, the reviewing court’s judgment is res judicata to all issues raised before it, and all issues, which could have been raised on the record but were not, are deemed waived. People v. Mitchell (1981), 95 Ill. App. 3d 779, 791, 420 N.E.2d 415, 424.

A former adjudication can be relied on as an absolute bar when the parties and the cause of action are the same in both proceedings, the former adjudication was a final judgment on the merits, and the court had jurisdiction to render it. (People v. Kidd (1947), 398 Ill. 405, 408-09, 75 N.E.2d 851, 854.) Those criteria are met by the decision in Pedigo I. We held that plaintiff could have and should have raised the matter of notice earlier in that proceeding, and thus, the doctrine of res judicata should preclude him from raising it now.

Plaintiff, however, notes that res judicata is not applied to a void judgment. A void judgment is one that, from its inception, is a complete nullity and without legal effect. (In re Marriage of Allcock (1982), 107 Ill. App. 3d 150, 153, 437 N.E.2d 392, 394.) Plaintiff cites section 14 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1014), which states, in part:

“A decision by any agency in a contested case under this Act shall be void unless the proceedings are conducted in compliance with the provisions of this Act relating to contested cases except to the extent such provisions are waived pursuant to Section 18 of this Act and except to the extent the agency has adopted its own rules for contested cases as authorized in Section 2 of this Act.”

Plaintiff argues the Department’s prior order must be void for failure to comply with the notice provision in contested cases. Generally, an agency’s order that is void may be attacked at any time and in any court either directly or collaterally. (City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112, 357 N.E.2d 1154, 1155.) Plaintiff concludes the order in Pedigo I is still subject to collateral attack.

Plaintiff, however, has already directly attacked the Department’s decision in Pedigo I. While plaintiff had the right to attack the agency’s decision either directly or collaterally if it was void, he has no right to both a direct and a collateral attack. The trial court and we ourselves had jurisdiction to review the validity of the Department’s order in Pedigo I. (Ill. Rev. Stat. 1983, ch. 110, pars. 3—104, 3—112.) One reason for reviewing an administrative action is to ensure that the agency has acted within the judicial bounds defined by law, and to guard those statutory and constitutional rights guaranteed to one subject to agency action. (Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 374, 406 N.E.2d 863, 866.) Hence, the validity of the Department’s decision was at issue in Pedigo I.

In essence, our decision in Pedigo I held that the Department’s assessment was not void. Plaintiff maintains we erred, but the doctrine of res judicata precludes him from relitigating the issue. Res judicata is premised on the notion that the law affords every man his day in court along with the opportunity to present his case on the issues involved. It also requires him to bring forth all grounds of recovery or defense that he has. (Pratt v. Baker (1967), 79 Ill. App. 2d 479, 485, 223 N.E.2d 865, 868.) “It is of first importance both in the observance of private rights and the public good that a question once adjudicated by a court of competent jurisdiction shall be considered as finally settled and conclusive upon the parties, subject only to proceedings in a court of review.” (Winkelman v. Winkelman (1923), 310 Ill. 568, 573, 142 N.E. 173, 174.) Once a litigation is prosecuted to an appellate court and questions of law are decided, all questions relating to the same subject matter which were open for consideration and could have been presented are res judicata. Finley v. Crossley (1953), 414 Ill. 105, 106, 110 N.E.2d 255, 256.

Moreover, we believe plaintiff misinterprets the effect of section 14. Plaintiff argues that by failing to comply with the notice requirement, the Department’s hearing and determination became an absolute nullity. He could not, therefore, waive an objection to it as we held in Pedigo I.

In construing a statute, a court should ascertain and give effect to the legislative intent. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) The words of a statute should be given their plain, ordinary and accepted meaning unless to do so would defeat the legislative purpose. (Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, 419, 444 N.E.2d 211, 214.) The proper interpretation of the statute, however, cannot simply be based on its language; it must be grounded on the nature, object and consequences that would result from construing it one way or another. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.

Although not its primary meaning, the word “void” is construed in some contexts as “voidable.” (Chicago Rys. Co. v. Commerce Com. (1929), 336 Ill. 51, 74, 167 N.E. 840, 849.) When used in the statute, the word “void” is often ambiguous, and it may mean “a complete nullity,” or it may mean only “susceptible of being held to be a nullity.” (Thompson v. Akin (1898), 81 Ill. App. 62, rev’d sub nom. Hogan v. Akin (1899), 181 Ill. 448, 55 N.E. 317; see also Black’s Law Dictionary 1411 (5th ed. 1979).) Thus, the word “void” has various meanings and has been applied to that which has no legal effect and is an absolute nullity, and to that which, by reason of some inherent vice or defect, may be adjudged void by a court when the question is presented to it. Sumner v. Village of Milford (1905), 214 Ill. 388, 395, 73 N.E. 742, 744.

When the word “void” is used to secure a right or confer a benefit on the public at large, it will usually be construed to mean “null and incapable of confirmation.” If used with respect to individuals, who are capable of protecting themselves, it will often be interpreted as “voidable” only. (Daniels v. Land (1938), 272 Ky. 730, 115 S.W.2d 293.) Section 14 applies to contested cases in which the individual subjected to agency action has ample opportunity to protect himself both at the hearing and on review.

The legislature has already addressed those matters of an agency’s decisions subject to collateral attack. Section 3—102 of the Code of Civil Procedure provides:

“Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision. If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of objections, protests, petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.” (Ill. Rev. Stat. 1983, ch. 110, par. 3—102.)

It must be presumed that two statutes relating to the same subject matter are governed by one spirit and one policy and that the legislature assumed the statutes were consistent and harmonious. (Scofield v. Board of Education (1952), 411 Ill. 11, 20, 103 N.E.2d 640, 645.) The only issues which may be attacked on collateral review, therefore, are subject matter and personal jurisdiction. Whether the agency complied with the provisions of the Illinois Administrative Procedure Act is a question properly addressed only on direct review.

Besides the notice provision, the Illinois Administrative Procedure Act also outlines rules concerning evidence, the content of the record, and the form of a final decision in contested cases. (Ill. Rev. Stat. 1983, ch. 127, pars. 1011 through 1014.) Under plaintiff’s interpretation, any violations of these rules would result in a void decision. Yet, the Code of Civil Procedure states:

“Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for reversal of the administrative decision unless it appears to the court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him or her.” (Ill. Rev. Stat. 1983, ch. 110, par. 3—111(b).)

Because we must construe the statutes consistently and harmoniously, we must reject plaintiff’s interpretation.

For the foregoing reasons, the trial court’s order dismissing plaintiff’s suit on res judicata grounds is affirmed.

Affirmed.

GREEN, RJ., and MILLS, J., concur.


text:
      In re ADOPTION OF ZJANEEN SOTELO et al. (Darrel Pack et al., Petitioners-Appellees, v. Kathleen Ellul et al., Respondents-Appellants.
    Third District
    Nos. 3—84—0157, 3—84—0168 cons.
    Opinion filed January 17, 1985.
    Rehearing denied March 5, 1985.
    Stephen H. Gunning, of Bird & Gunning, of Princeton, for appellants Kathleen Ellul and Gabriel Kristopher Ellul.
    Linda A. Rothnagel, of Prairie State Legal Services, Inc., of Ottawa, for other appellants.
    Robert B. Steele, of Aplington, Kaufman, McClintock, Steele & Barry, Ltd., of La Salle, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from an adoption proceeding in the circuit court of Putnam County. The parties to the proceeding are two children, Zjaneen Sotelo and Gabriel Ellul, their natural mother, Kathleen Ellul, the natural father of Zjaneen, Braulio Sotelo, and Darrell and Donna Pack, the adoptive parents (the sister and brother-in-law of Kathleen).

On August 19, 1982, the Packs filed a petition for adoption asking that the parental rights of Kathleen and Braulio be terminated and a judgment of adoption be entered in their favor pursuant to the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq.). Temporary custody was granted to the Packs, with whom the children were living. On January 14, 1983, the Packs filed a supplemental petition to the adoption proceeding asking that the children be declared dependent and adjudged wards of the court pursuant to section 4—1 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 704—1). This petition was not filed as a separate and independent action and, therefore, became a part of the adoption proceeding. The same day, the trial court found the children dependent, made them wards of the court, placed guardianship with the Department of Children and Family Services (DCFS) and awarded custody to the Packs.

Until this time Kathleen and Braulio were represented by counsel. On September 21, 1983, their attorney filed a motion to withdraw. The court granted the motion on September 29 and ordered Braulio to find private counsel and Kathleen to consult with Prairie State Legal Services before October 14, 1983, after denying a request for court-appointed counsel. At the same time, the court set the final hearing on the merits for October 25, 1983. Both Kathleen and Braulio attempted to employ counsel to no avail. Nonetheless, despite requests for a continuance from both Braulio and Kathleen, the trial court proceeded with the final hearing on October 25, 1983, and granted the petition for adoption. Kathleen and Braulio both appeal.

The parties filed separate briefs, but only two basic issues are raised; first, whether Kathleen and Braulio were entitled to be represented by counsel at the final hearing where their parental rights were terminated, and second, whether unfitness was proved by clear and convincing evidence. Because we find that both Kathleen and Braulio were entitled to representation, we will not reach the issue of the sufficiency of the evidence.

Kathleen and Braulio argue that once the second petition was filed under the Juvenile Court Act, that Act applied to this proceeding and the mandatory language of the statute requires that parents be represented by counsel. Section 1—20 of the Juvenile Court Act states in pertinent part:

“[T]he Minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, *** the right to be represented by counsel.” (Ill. Rev. Stat. 1981, ch. 37, par. 701—20.)

Therefore, a clear mandate exists for representation and appointment of counsel if the parties were proceeding under the Juvenile Court Act.

The Packs, on the other hand, argue that the Adoption Act controls this proceeding and that because the Adoption Act has no statutory requirement of representation, Braulio and Kathleen were not entitled to counsel. However, section 13—B(c) of the Adoption Act requires that a person found to be unfit pursuant to the provisions of subsection (D)(p) of section 1 of the Adoption Act shall have the right to counsel. Subsection (D) sets out the grounds for finding a parent unfit under the Adoption Act. Subparagraph (p) of that section reads as follows:

“(p) inability to discharge parental responsibilities supported by competent evidence from a psychiatrist or clinical psychologist of mental impairment, mental illness, mental retardation as defined in section 1—116 of the Mental Health and Developmental Disabilities Code or Developmental Disability as defined in section 1—106 of that Code, and there is sufficient justification to believe that such an inability to discharge parental responsibility shall extend beyond a reasonable period of time.” (Ill. Rev. Stat. 1983, ch. 40, par. 1501(D)(p).)

And section 13(B)(c) of the Adoption Act further provides:

“(c) Wherein the Petition alleges a person to be unfit pursuant to the provisions of subparagraph (p) of paragraph D of Section 1 of this Act such persons shall be represented by counsel. If such person is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the Court shall appoint as counsel for him either the Guardianship and Advocacy Commission, the public defender, or only if no attorney for the Guardianship and Advocacy Commission or the public defender is available, an attorney licensed to practice law in this State.” (Ill. Rev. Stat. 1983, ch. 40, par. 1516(B)(c).)

The Packs argue that these provisions of the Adoption Act do not apply because subsection (D)(p) did not become effective until July 1, 1983, and these two petitions were filed in 1982. However, no determination of unfitness was made until October 25, 1983, at the final hearing. Nor is it clear from either the record or the judgment what grounds were used by the court to terminate the rights of Kathleen and Ellul. However, because most of the evidence before the court as to Kathleen’s unfitness consisted of clinical psychologists’ reports and medical records of Kathleen’s periodic bouts with mental illness and drug problems, the trial court most likely used subsection (D)(p) as the ground for finding Kathleen unfit. Therefore, Kathleen had a right to counsel under either act.

Although proceedings under the Juvenile Court Act are meant to be somewhat informal, this proceeding was conducted in a manner where not only is it impossible to determine what act the court was proceeding under, but also what grounds the court used to determine unfitness of either parent. Under the circumstances, we hold that the natural parents are entitled to the safeguards of both statutes and, therefore, were entitled to representation. The United States Supreme Court has emphasized the importance of counsel in proceedings to terminate parental rights in Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153.

For the foregoing reasons, we reverse the decision of the circuit court of Putnam County granting the adoption and remand for proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE and SCOTT, JJ., concur.


text:
    CREDITORS DISCOUNT & AUDIT, INC., d/b/a Collection Service, Plaintiff-Appellant, v. LYNDON ZOOK, Defendant-Appellee.—CREDITORS DISCOUNT & AUDIT, INC., d/b/a Collection Service, Plaintiff-Appellant, v. JAMES R. BEAN, Defendant-Appellee.
    Fourth District
    Nos. 4—84—0606, 4—84—0630 cons.
    Opinion filed January 23, 1985.
    Francis J. Davis, of Maloney & Davis, of Urbana, for appellant.
    No brief filed for appellees.
    Daniel H. Harrod, of Harrod Law Firm, P.C., of Eureka, for amicus curiae.

   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

These consolidated appeals concern the application of section 2— 202(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—202(a)), which designates those individuals who may serve process. The section states in part that “[t]he [circuit] court may, in its discretion upon motion, order service to be made by a private person over 18 years of age and not a party to the action.” In case No. 4— 84—0606, the issue is whether the circuit court has authority to fix a fee for the private process server and tax that fee as costs. We hold that it does not have such authority. In case No. 4—84—0630, the question attempted to be presented is whether a showing of cause or necessity is a condition precedent to the appointment by the court of a private process server. We do not reach that question, because we determine that we do not have jurisdiction in that case.

In case No. 4—84—0606, plaintiff, Creditors Discount & Audit, Inc., d/b/a Collection Service, brought suit in the circuit court of Champaign County seeking a money judgment from defendant, Lyndon Zook. Pursuant to the provisions of section 2—202(a), James Luecking was appointed as a private process server and served the summons upon defendant. Plaintiff requested the court to fix a $12 fee for Luecking and to tax it as costs. The court found that the amount requested was reasonable and stated that it would have fixed a fee in that sum and taxed the sum as costs if it could have properly done so. However, the court held that under the precedent of Chicago & Aurora R.R. Co. v. Dunning (1857), 18 Ill. 494, it had no authority to do so. In entering judgment for plaintiff for the sum of $225.38 and costs on July 31, 1984, the court refused plaintiff’s request to tax a fee for service of summons as part of the costs. Plaintiff has appealed. Defendant has filed no brief. With our permission, the Illinois Sheriffs Association has filed a brief amicus curiae suggesting that the trial court decision was correct. We agree and affirm.

In case No. 4—84—0630, the same plaintiff brought suit in the circuit court of Champaign County against James R. Bean seeking a money judgment. On August 23, 1984, plaintiff moved for appointment of a private process server. The trial court denied the appointment on that date, ruling that it had no authority to make such an appointment absent a showing of cause or necessity. The court reasoned that such an appointment was to be made only in unusual circumstances. Plaintiff moved for a “stay” of the order of denial. The “stay” was denied on August 29, 1984, by an order which found that there was no reason to delay enforcement or appeal of the order. Plaintiff then filed notice of interlocutory appeal on that same date.

No case is directly on point on the question of whether a trial court has the discretion to fix a fee for a private process server and tax that fee as costs. The Dunning case, relied on by the trial court, is the case most nearly on point. There, a plaintiff was deputized by the sheriff for the sole purpose of serving a subpoena in the case. An agreement was reached to dismiss the lawsuit at the defendant’s costs, and among the items taxed in the bill of costs were the fees incurred in serving the subpoenas, to which the defendant then objected. The supreme court held that no fee could be allowed or taxed and reversed, ordering a retaxing of costs. The court reasoned as follows: (1) The plaintiff, in his capacity as a deputy sheriff, could not serve a subpoena in his own case, because he could not act in his official capacity in his own case; (2) a party, or any other private person, may serve a subpoena; (3) plaintiff, acting in his individual capacity, properly served the subpoenas; but (4) plaintiff could not be awarded fees as costs for doing so, because there was no statutory provision for award of fees for private service of subpoenas, and “it is only by force of the statute, that any costs can be collected by the successful [from] the unsuccessful party.” Chicago & Aurora R.R. Co. v. Dunning (1857), 18 Ill. 494, 495.

The general rule stated in Dunning that, absent statutory authority, a court is without authority to assess costs is still applicable. (See People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 245 N.E.2d 468.) In Freutel v. Schmitz (1921), 299 Ill. 320, 132 N.E. 534, the trial court referred a mortgage foreclosure proceeding to an examiner who was to hear the evidence and report. On appeal, the supreme court reversed the trial court’s allowance of an examiner’s fee as costs because no statutory authority existed for such an award.

Plaintiff contends that authority to tax a fee for service of summons by a private individual may be inferred from Supreme Court Rule 101 (87 Ill. 2d R. 101). That rule provides that the forms of summons used in civil cases shall contain a provision stating that the summons “must be returned by the officer or other person to whom it was given for service, with endorsement of service and fees, if any.” (Emphasis added.) Rather than implying authority to fix fees for a private process server, the Rule is at least neutral on the subject because of the words “if any.” While those words could have been used in recognition of the fact that no fees would be available when the plaintiff is suing as a poor person, the words could also indicate a recognition that no fees can be fixed or taxed when a private person makes service.

Plaintiff also calls our attention to section 2—202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—202(c)). That section makes a “sheriff, coroner, or other person” (emphasis added) to whom process is delivered subject to the contempt power of the circuit court for refusing or neglecting to serve process. Plaintiff argues that a private person would be unlikely to voluntarily subject himself to such potential penalty and responsibility if no fee was allowed. Plaintiff maintains that the legislature would not have intended to discourage the use of private process servers in this way. However, there is no indication that the legislature intended to encourage the use of private process servers or contemplated that they would be used regularly. The responsibility taken on by such a person is not great. As with Rule 101, an inference from section 2—202(c) that the court was authorized to fix and tax a fee for private process servers is too slight to be persuasive.

At the time of Dunning, as now, a private person, without appointment by the court, could serve a subpoena. Under Supreme Court Rule 237(a) (87 Ill. 2d R. 237(a)), a subpoena may even be served by mail. Section 2—202(c), by its terms and context, does not refer to persons serving subpoenas, and there is no statutory provision making the subpoena server subject to contempt for failure to serve the subpoena. Thus, the analogy of Dunning to the situation of the “private person” serving a summons is not complete, as the summons server must be appointed by, and is subject to the contempt power of, the court. However, absent express or implied statutory authorization for fixing a fee for the server and taxing it as costs, the holding of Dunning that no fee can be fixed or taxed is binding precedent despite its ancient origin. Moreover, that precedent is entirely consistent with the general rule pronounced fairly recently in City of Hickory Hills and House of Vision.

Finally, plaintiff refers to the desirability of encouraging the use of private persons as servers of summonses. Plaintiff submits that most sheriff’s departments today (1) are too busy to give the necessary attention to serving the summons that a trained person specializing in service of process would give, and (2) lack the knowledge and skill that a trained private process server would have. An examination of the statutes of other States indicates that about one-half of the States have provisions authorizing the taxing as costs of fees paid to private process servers. We recognize that this may be desirable. However, we conclude that the legislature, not the court, should grant the authority to tax such fees as costs. Accordingly, we affirm the judgment of the trial court in case No. 4—84—0606.

Turning now to the appeal in case No. 4—84—0630, we must consider first the question of our jurisdiction. That question was not discussed at the expedited oral argument, nor has it been raised otherwise at any time. However, upon further reflection, we conclude that we must raise the issue sua sponte. (In re Application of County Collector of Rock Island County (1972), 3 Ill. App. 3d 917, 278 N.E.2d 811.) The finding of the trial court that no just reason existed to delay enforcement or appeal of the order denying the stay is insufficient to make the order appealable as a matter of right under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), because (1) the case was not one involving multiple parties or multiple claims for relief, and (2) that order was not final as to a claim.

Because a request for the stay of an order of the trial court is usually analogous to a request for interlocutory injunctive relief, an order granting, or refusing to grant, or dissolving or refusing to dissolve a stay has been held to be appealable as a matter of right under the provisions of Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)) which make similar orders regarding requests for injunctive relief appealable. (Cahokia Sportservice, Inc. v. Illinois Liquor Control Com. (1975), 32 Ill. App. 3d 801, 336 N.E.2d 276.) However, because of the unusual type of stay requested here, the analogy to injunctive relief is not apt.

The stay was requested as to an order denying relief, i.e., the appointment of a special process server. The purpose of a stay is to preserve the status quo. When an order is entered denying relief, that order preserves the status quo and there is no purpose in staying the operation of the order. Here, the court refused to appoint a process server. The trial court’s refusal to do so maintained the status quo. A stay would not have changed the situation. The granting of a stay would have been a useless act. An order “which does not command or permit any act to be done *** is not within [the procedures for a stay], as there is nothing upon which a stay bond can operate.” (4A C.J.S. Appeal & Error sec. 632, at 431 (1957); see Gumberts v. East Oak Street Hotel Co. (1949), 404 Ill. 386, 88 N.E.2d 883.) An order granting or denying injunctive relief is never an order having no effect.

To allow an appeal as a matter of right from a denial of a stay here would be to allow an appeal as a matter of right from an order that has no effect. Allowance of appeal under these circumstances would permit any civil litigant to seek a stay of any ruling not made in the course of trial and then appeal the denial of a stay to that order. That was not the intent of Rule 307(aXl). Thus, we dismiss this appeal.

Notably, even if the order denying the stay were appealable as a matter of right, the only issue raised would be the propriety of denying the stay. (Alfred Engineering, Inc. v. Illinois Fair Employment Practices Com. (1974), 19 Ill. App. 3d 592, 312 N.E.2d 61; Chicago & Eastern Illinois R.R. Co. v. Illinois Commerce Com. (1976), 37 Ill. App. 3d 523, 346 N.E.2d 432.) The question of the propriety of the refusal to appoint a special process server would not have been reached.

For the reasons stated, the judgment in case No. 4—84—0606 is affirmed. In case No. 4—84—0630, the appeal is dismissed.

Affirmed in case No. 4—84—0606, appeal dismissed in case No. 4— 84-0630.

MILLS and WEBBER, JJ., concur.


text:
    EAGLE BOOKS, INC., d/b/a Urbana News, Plaintiff-Appellant, v. RICHARD M. JONES et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0591
    Opinion filed January 30, 1985.

      Glenn A. Stanko, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellant.
    Joseph D. Pavia, of Kirtley, Pavia & Marsh, P.C., of Urbana, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Pornography is, at best, a seamy business.

But as distasteful as it may be to most of us, it is still legal to traffic in it—at least as of this writing.

Eagle Books/Urbana News is an adult bookstore. It filed a complaint on August 3, 1984, seeking preliminary and permanent injunctive relief from certain picketing activities which defendants conducted at plaintiff’s business premises. On August 7, 1984, a hearing was held, and the circuit court preliminarily enjoined defendants from trespassing on plaintiff’s business premises and from blocking access to the business.

However, the court denied the bookstore’s request that defendants be enjoined from harassing and intimidating its patrons and employees through the use of shouts, verbal abuse, and through the taking of photographs or license plate numbers, or the threatened taking of photographs or license plate numbers. Plaintiff’s requests that the number of picketers be limited and that they be restrained from interfering with traffic in front of plaintiff’s store were also denied.

The bookstore now brings this interlocutory appeal from that part of the court’s order which denied portions of its request for preliminary injunctive relief.

We affirm.

The complaint stated that plaintiff owns and operates an adult bookstore and arcade located at the corner of Cunningham Avenue and Park Street in Urbana. Parking is available on three sides of the store, and a public sidewalk is located along Cunningham Avenue, approximately 20 to 30 feet from the store.

The complaint alleged that defendants had engaged in picketing activities at plaintiff’s business premises since late June 1984. The number of picketers had ranged from four to 20, with the picketing being conducted mainly during the lunch hour on weekdays, during the evenings on weekdays, and on Saturdays.

Plaintiff attached to its complaint two newspaper articles which contained statements alleged to have been made by defendants indicating that the purpose of the picketing was to force plaintiff to close its store by discouraging patrons from entering the premises. Defendant Richard Jones was quoted as stating that “anybody who does not want their picture taken had better not come here.”

Plaintiff alleged thát the defendants had been harassing and intimidating its patrons, potential patrons, and employees by taking photographs, threatening to take photographs, threatening to publish photographs, taking license plate numbers, threatening to take license plate numbers, shouting, and verbal abuse. Several specific incidents were alleged, including one involving a patron towards whom the defendants had directed a chant while he was in the store, and another involving derogatory comments by a picketer directed at a female employee. The plaintiff also alleged that one patron shoved a picketer who “jumped” in front of him to take his picture. Numerous trespasses were also alleged. It was alleged that the number of picketers was such that entry into plaintiff’s parking area was impeded and discouraged. Plaintiff also claimed that traffic on Cunningham Avenue was interfered with.

Plaintiff alleged “numerous” calls to the Urbana police department with no resulting charges. It further complained of a substantial loss of revenue during the period in which the picketing had been conducted. Plaintiff sought preliminary and permanent injunctive relief from the activities of the defendants.

On August 7, 1984, defendants filed an “Objection to Issuance of Temporary Restraining Order or Preliminary Injunction.” They claimed therein that the allegations in the complaint were insufficient to support the issuance of a preliminary injunction.

Also on August 7, 1984, a hearing was held on plaintiffs request for a preliminary injunction. After the hearing, the court enjoined the defendants from trespassing and from blocking access to plaintiff’s premises. However, all other aspects of plaintiff’s request for preliminary injunctive relief were denied. Plaintiff subsequently filed timely notice of interlocutory appeal, pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)).

On appeal, plaintiff alleges that the circuit court improperly denied plaintiff’s request that defendants be enjoined from harassing and intimidating its patrons and employees through the use of shouts, verbal abuse, and by taking photographs, threatening to take photographs, threatening to publish photographs, taking license plate numbers, and threatening to take license plate numbers. Plaintiff also claims that the trial court erred by failing to preliminarily enjoin defendants from interfering with traffic on Cunningham Avenue and by failing to limit the number of picketers. Defendants respond that the trial court’s decision was not error, primarily because plaintiff failed to show a likelihood of success on the merits of its requests.

The party requesting a preliminary injunction must show: (1) that he possesses a right which needs protection; (2) that he will suffer irreparable injury without the protection; (3) that there is no adequate remedy at law; (4) that he has a substantial likelihood of succeeding on the merits; and (5) in the absence of preliminary relief, he will incur a greater injury than would be received by the objector if the relief was granted. (Johnson v. Gene’s Supermarket, Inc. (1983), 117 Ill. App. 3d 295, 453 N.E.2d 83.) The purpose of a preliminary injunction is to preserve the status quo. (Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 428 N.E.2d 747.) On review, the decision of the circuit court in granting or denying a request for preliminary injunction will not be disturbed absent an abuse of discretion, Lums Restaurant Corp. v. Bloomington Restaurant Investments, Inc. (1981), 92 Ill. App. 3d 1143, 416 N.E.2d 751.

Here, plaintiff claims that it has properly established each of the above-listed, required showings. Defendants do not argue that requirements (1) and (5) were not established. However, they do argue that plaintiff failed to establish irreparable injury, an inadequate remedy at law, and a likelihood of success on the merits. Defendants concede that all of plaintiffs well-pleaded facts must be taken as true since an answer to the complaint had not been filed at the time of the hearing. See Johnson v. Gene’s Supermarket, Inc. (1983), 117 Ill. App. 3d 295, 453 N.E.2d 83.

Without any citation to authority, defendants claim that plaintiff has failed to demonstrate irreparable injury. However, the loss of customers and sales and the threat of the continuation of such losses to a legitimate business interest, as alleged by plaintiff here, is sufficient to show that plaintiff will suffer irreparable injury unless protected by the court. U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 413 N.E.2d 187; Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 372 N.E.2d 125.

Defendants also allege that money damages would provide plaintiff with an adequate legal remedy. However, while immediate damages in loss of sales may be calculable, the potential loss of future business is incapable of adequate computation. (U-Haul Co. v. Hindahl (1980), 90 Ill. App. 3d 572, 413 N.E.2d 187.) Moreover, even though plaintiff’s ultimate recovery may be a money judgment, a preliminary injunction may be granted when damages are difficult to quantify at the time of the hearing. (Lums Restaurant Corp. v. Bloomington Restaurant Investments, Inc. (1981), 92 Ill. App. 3d 1143, 416 N.E.2d 751.) The threatened loss of future customers and revenues made plaintiff’s remedy at law inadequate here.

The most serious issue raised on appeal is whether the plaintiff has shown a likelihood of success on the merits. In its written order, the circuit court denied the part of plaintiff’s request for injunctive relief that is the subject of this appeal for the reason that “plaintiff would have no likelihood of success on the merits.” Therefore, plaintiff argues that the circuit court abused its discretion in determining that it had no likelihood of success on the merits.

Initially, plaintiff concedes that, in general, picketing is an exercise of the freedom of speech protected by the first and fourteenth amendments to the United States Constitution. However, plaintiff claims that picketing may be restricted by the courts when it is directed toward an unlawful purpose or when it is conducted in a violent manner. The plaintiff argues that the allegations in its complaint demonstrate that defendants’ picketing here was directed toward an unlawful purpose and was violent in manner. Accordingly, plaintiff argues that defendants should have been preliminarily enjoined from using harassing and intimidating tactics in furtherance of an unlawful purpose. ■

Plaintiff first argues that an absolute prohibition of picketing activities is appropriate where the picketing is for an unlawful purpose. Plaintiff cites Hughes v. Superior Court (1950), 339 U.S. 460, 94 L. Ed. 985, 70 S. Ct. 718, Teamsters Local 309 v. Hanke (1950), 339 U.S. 470, 94 L. Ed. 995, 70 S. Ct. 773, Building Service Employees International Union, Local 262 v. Gazzam (1950), 339 U.S. 532, 94 L. Ed. 1045, 70 S. Ct. 784, Board of Education v. Redding (1965), 32 Ill. 2d 567, 207 N.E.2d 427, and Bitzer Motor Co. v. Teamsters Local 604 (1953), 349 Ill. App. 283, 110 N.E.2d 674, in support of this proposition.

However, these cases involved government regulation of economic activity and labor disputes, unlike the present case. The distinction between picketing involving commercial activity and public issue or political picketing was detailed by the Supreme Court in its recent decision of NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 912-13, 73 L. Ed. 2d 1215, 1235-36, 102 S. Ct. 3409, 3425-26, where it stated:

“This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. [Citations.] * * * Secondary boycotts and picketing by labor unions may be prohibited, as part of ‘Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife.’ [Citations.]
While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’ [Citation.] ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ [Citation.] There is a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’ [Citation.]”

Therefore, the cases cited by plaintiff can be distinguished as involving economic or commercial matters over which government has greater regulatory powers. All of the cases involved labor dispute picketing which the respective courts deemed unlawful. These decisions involved cases in which the picketers’ rights had to be balanced against a strong governmental interest in economic and commercial regulation that is absent in the present case. Instead, the defendants, here, are participating in a form of public issue picketing which the court spoke of in NAACP.

Plaintiff also cites Austin Congress Corp. v. Mannina (1964), 46 Ill. App. 2d 192, 196 N.E.2d 33, for the proposition that picketing for the purpose of economic ruination is unlawful. However, that case should be read in light of two subsequent Supreme Court cases, NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409, and Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 29 L. Ed. 2d 1, 91 S. Ct. 1575. In NAACP the petitioners used picketing and other activities to urge a boycott of certain merchants who allegedly practiced racial discrimination. The Supreme Court stated that “the petitioners certainly foresaw—and directly intended—that the merchants would sustain economic injury as a result of their campaign”; however, the State interest in economic regulation could not justify an injunction against a politically motivated boycott designed to force economic change. (458 U.S. 886, 914, 73 L. Ed. 2d 1215, 1236-37, 102 S. Ct. 3409, 3426.) The Supreme Court also expressed approval of an earlier case involving picketing designed to inflict economic injury:

“In Thornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736, the Court held that peaceful picketing was entitled to constitutional protection, even though, in that case, the purpose of the picketing ‘was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer.’ ” NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 909, 73 L. Ed. 2d 1215, 1233, 102 S. Ct. 3409, 3424.

Likewise, in Keefe the petitioners’ pamphleteering was designed to injure respondent’s real estate business by forcing respondent to end his sale of real estate in the community of Austin. The Supreme Court stated:

“Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. [Citation.] Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.” Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5, 91 S. Ct. 1575, 1577-78.

It is clear, then, that public issue picketing is entitled to full first amendment protection. Where, as here, such picketing also inflicts economic injury on the object of the picketing, that fact alone does not make the picketing unlawful. (NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 73 L. Ed. 2d 815, 102 S. Ct. 3409; Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 29 L. Ed. 2d 1, 91 S. Ct. 1575; Thornhill v. Alabama (1940), 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736.) Although defendants’ message may have injured the plaintiff economically, it was still entitled to full first amendment protection.

Plaintiff next argues that defendants’ activities which involved violence and threats of violence should have been enjoined by the circuit court.

The Supreme Court has noted that picketing involves elements of both speech and conduct and has indicated that the “conduct” aspect of picketing may be controlled as to time, place, and manner. (Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc. (1968), 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601.) It is clear that picketing which is conducted in a violent manner may be restrained. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. (1968), 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601; Milk Wagon Drivers Union Local 753 v. Meadowmoor Dairies, Inc. (1941), 312 U.S. 287, 85 L. Ed. 836, 61 S. Ct. 552.

Plaintiff claims that actions by the defendants involving the taking of photographs and license plate numbers of its patrons and employees, as well as verbal abuse directed at patrons and employees, constitute intimidation which may be enjoined. The plaintiff cites Ellingsen v. Milk Wagon Drivers’ Union, Local 753 (1941), 377 Ill. 76, 35 N.E.2d 349, in support of its position. In Ellingsen, the Illinois Supreme Court stated:

“[Tjhreats and attempts to coerce by intimidation are not peaceful picketing ***. We are of the opinion that such threats amount to conduct which may be enjoined.” 377 Ill. 76, 86, 35 N.E.2d 349, 354.

However, this case should be read in light of the recent Supreme Court decision in NAACP. There the picketers also engaged in “store watching” wherein individual picketers stood outside of the boycotted stores and identified those who traded with the merchants. The names of the persons who violated the boycott were read at meetings of the local NAACP chapter and were published in a local newspaper. These persons were branded as traitors, socially ostracized, and called demeaning names. The Supreme Court stated that there was nothing unlawful about the boycotters’ activities even though they may have caused apprehension in others. The court went -on to state that marches, speeches, and threats of social ostracism are all entitled to constitutional protection. The Supreme Court also stated that constitutionally protected speech “does not lose its protected character *** simply because it may embarrass others or coerce them into action.” (458 U.S. 886, 910, 73 L. Ed. 2d 1215, 1234, 102 S. Ct. 3409, 3424.) Accordingly, the Supreme Court reversed the judgment of the Mississippi Supreme Court to the extent that its judgment rested “on the ground that ‘many’ black citizens were ‘intimidated’ by ‘threats’ of ‘social ostracism, vilification, and traduction,’ ” since such a judgment would be “flatly inconsistent with the First Amendment.” (458 U.S. 886, 921, 73 L. Ed. 2d 1215, 1242, 102 S. Ct. 3409, 3430.) Indeed, it would appear that nearly all picketing involves some degree of “intimidation.”

In the present case, defendants’ photograph taking, license plate number recording, and isolated instances of verbal abuse were meant to embarrass and coerce patrons of plaintiff’s business. These tactics are very similar to the ones employed by the boycott participants in NAACP. On the basis of that case, we cannot say that these tactics rise to the level of “violence” that is subject to government control. Similarly, the single instance of actual violence alleged in plaintiff’s complaint cannot serve to taint the defendants’ collective activity as “violent.” (See NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409; Milk Wagon Drivers Union, Local 753 v. Meadowmoor Dairies, Inc. (1941), 312 U.S. 287, 85 L. Ed. 836, 61 S. Ct. 552.) Such trivial instances of violence on the part of the objects of the picketing should not form the basis for an injunction of defendants’ otherwise peaceful activities.

The plaintiff also claims that the defendants’ activities amount to “intimidation” in violation of section 12—6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12—6). However, as a general rule, courts will not enjoin criminal activity unless the conduct that constitutes the crime also serves as a basis for equitable intervention. (People ex rel. Director of the Department of Children & Family Services v. Illinois Protestant Children’s Home, Inc. (1965), 33 Ill. 2d 60, 210 N.E.2d 217, cert. denied (1966), 384 U.S. 905, 16 L. Ed. 2d 358, 86 S. Ct. 1338; Burden v. Hoover (1956), 9 Ill. 2d 114, 137 N.E.2d 59.) Since defendants’ alleged intimidating tactics here do not provide a basis for enjoining the picketing (see NAACP v. Claiborne Hardware Co. (1982), 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409), the fact that a criminal law may have been violated does not make their conduct more “enjoinable.”

Finally, the plaintiff claims that the number of picketers, as well as their activities, serves to endanger motorists traveling on Cunningham Avenue. This allegation, even when taken as true, does not amount to violent or unlawful conduct on the part of the defendants. Furthermore, the plaintiff has no standing to argue an injury to the public in general. Irving-Austin Building Corp. v. Village Homebuilders, Inc. (1941), 312 Ill. App. 179, 37 N.E.2d 927.

For all of the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.