author: JUSTICE TRAPP

text:
    CLIFTON HILL et al., Plaintiffs-Appellants and Cross-Appellees, v. MAURICE BUTLER et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 17516
    Opinion filed July 12, 1982.

      John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P. C., of Springfield, for appellants.
    William E. Feurer, of William E. Feurer, Ltd., of Springfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Sangamon County dismissing their amended complaint for mandamus to compel defendants, the board of managers of Chatham Township, to hold a referendum pursuant to section 15 of “An Act in relation to township community buildings” (Ill. Rev. Stat. 1981, ch. 139, par. 160d2).

The trial court’s written order found that the Community Building was operated and managed by the board of managers pursuant to the Act and that the provisions of the Act, as amended, were fully applicable to the defendant board of managers, and that “amendments to said Act subsequent to the acquisition of the community building in question bind and are effective against the said Defendants.” The court found, however, that in adopting the provisions of section 15 of the Act, the General Assembly “[d]id not intend to permit a municipality to take property by the use of a petition as was filed in this matter.” In colloquy, the trial judge spoke of the procedure as a form of eminent domain by one municipality against another.

Defendants have cross-appealed from that portion of the trial court order which found that section 15 had been adopted by them within the meaning of the statute. We reverse the order of the trial court granting defendants’ motion to dismiss and remand for further proceedings.

Plaintiffs were among the more than 50 persons to sign petitions calling on the board of managers of Chatham Township to hold an election on the question of the sale to the village of Chatham of the Chatham Township community building for the sum of $10. The complaint alleged that petitions calling on the board of managers to hold a referendum had been duly presented to the board; that the township had adopted the provisions of section 15 of the Act; that section 15 mandates the certification of the question by the board at the next general election on the terms set forth in the petitions, and that defendants had refused to certify the same as required by law.

Defendants, both in their motion to dismiss at trial and on appeal, have argued (1) that plaintiffs lack standing to enforce section 15, (2) that section 15 does not allow for a process of voter initiative, (3) that section 15 has not been adopted by them, (4) that the petitions were not presented in accordance with law, and (5) that the statute cannot apply to a building constructed before its enactment. Additionally, defendants argue that the statute does not allow property to be taken in the manner plaintiffs have attempted.

Though the statute at issue has been in existence for 27 years, its interpretation and the question presented have not been previously considered by the reviewing courts of this State. Further, no legislative history is available as guidance to this court. We must, in all cases of this nature begin with the language of the statute, giving it its plain and ordinary meaning. City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492.

Section 15 provides in part:

“Whenever a petition signed by not less than 50 electors of a town which has adopted the provisions of this Act, is presented to the Clerk of the Board of Managers requesting the sale of a community building, or site with a community building thereon to a school district or other municipality, which petition shall set forth the school district or municipality to which the proposed sale shall be made, the sale price and the township fund to which the proceeds of such sale be transferred, the Board of Managers shall certify that proposition to the proper election officials, who shall submit such proposition at an election in accordance with the general election law to decide whether or not the property shall be sold; and if a majority of the voters voting upon the proposition is in favor of the sale, then the Board of Managers, upon receipt of the purchase price, shall convey the property to such school district or other municipality.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 139, par, 160d2.

First, we address the standing of the individual plaintiffs to maintain the present action for mandamus. In plaintiffs’ complaint it is alleged that each individual plaintiff is now, and has at all times been, a resident and qualified elector of Chatham Township, Sangamon County. It is clear that by virtue of defendants’ motion to dismiss, this well-pleaded fact in plaintiffs’ complaint stands as admitted. (Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 391 N.E.2d 133.) Defendants’ motion to dismiss also pointed out that plaintiffs, while electors of Chatham Township, were trustees of the Village of Chatham. Though defendants’ motion to dismiss is not designated as a motion pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619; formerly ch. 110, par. 48), we will treat it as such on this point and consider the additional matter raised by them. Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.

The concept of standing to bring suit requires that parties before the court seeking relief have a sufficiently protectable interest pursuant to statute or common law which is alleged to be injured. Thus, courts are to decide only specific controversies and not moot or abstract questions. (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 359 N.E.2d 1137; Retad Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 47 N.E.2d 462.) In the context of standing to seek the relief of mandamus, our supreme court has stated:

“Where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested as a citizen in having the laws properly executed.” Retail Liquor Dealers Protective Association v. Schreiber (1943), 382 Ill. 454, 459, 47 N.E.2d 462, 464.

We conclude that the individual plaintiffs are precisely of the class to whom the right of petition is given pursuant to section 15, and that their interests in having the defendants comply with section 15 is sufficient to confer them with standing. The fact that they also have other capacities is irrelevant. They have demonstrated their right to petition for referendum under the statute and have alleged the denial by defendants in derogation of this right. This we conclude to be sufficient.

The Village of Chatham we believe does not have standing. Under section 15, the proposed transferee, in this case, the village, has no right to purchase the property until after the question has been duly presented and passed by the voters of the township. Thus, any interest the municipality has is contingent on the success of the referendum, and any relief in the instant case would have no effect on any present right or duty of the village.

Defendants next argue against and have cross-appealed from that portion of the order which found that the township had adopted the Act within the meaning of section 15. The method of adopting the provisions of the Act is not specified by statute, nor is the word defined therein. Nevertheless, we believe defendants’ actions to indicate adoption within the meaning of section 15.

Section 1 of article VII of the 1970 Illinois Constitution classifies a township as a unit of local government. (Ill. Const. 1970, art. VII, sec. 1.) Pursuant to section 8 of this article, townships “* * * have only powers granted by law.” Any action taken by defendants to acquire, sell, or use the community building is thus a matter of a legislative prerogative. It is alleged by plaintiffs that defendants were elected (Ill. Rev. Stat. 1981, ch. 139, par. 154), levied a maintenance tax (Ill. Rev. Stat. 1981, ch. 139, par. 158), submitted annual reports (Ill. Rev. Stat. 1981, ch. 139, par. 160b), and regulated the use of the community building as provided by the various sections of “An Act in relation to township community buildings” (Ill. Rev. Stat. 1981, ch. 139, par. 152 et seq.). Absent these various statutory provisions, the actions taken by the Township would have been of no effect. These several actions indicate an intention to be bound by and subject to the legislative conditions imposed thereunder governing the holding, acquisition and disposition of township community buildings. Once the defendants held the township property pursuant to statute, elected a governing board, and levied a maintenance tax for it, we conclude that they had adopted the Act within the meaning of the statute.

Defendants have also urged in their motion to dismiss, and on appeal that section 15 cannot be applied to the board of managers since to make a statute retroactive, the legislation must expressly so provide. (People v. Deatherage (1948), 401 Ill. 25, 81 N.E.2d 581.) The defendants argue that since the building was constructed in 1933, but the amendment passed in 1955, it cannot be applied to the present board of managers.

It is certainly a correct proposition of law that a statute affecting substantive rights will not be applied retroactively unless expressly so provided (see United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d,4; Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 402 N.E.2d 584). Nonetheless, it is difficult to ascertain what retroactive effect section 15 has. It does not affect transactions prior to 1955, but allows a referendum following its effective date. Had the statute allowed a referendum or petition prior to 1955 to have been effective to force the issue of a sale upon the electors of the township, then an issue of retroactivity would be present. Moreover, whether the statute applied retroactively or not, we believe defendants are in no position, as a statutorily created body, to claim any vested rights to hold property which the General Assembly has given the electors the power to sell. Their right to hold and deal with the property is a matter of legislative determination and no vested right can exist as against the General Assembly. City of Geneseo v. Illinois Northern Utilities Co. (1936), 363 Ill. 89,1 N.E.2d 392.

The defendants next contend that the word “sale,” as ordinarily defined, requires a bargained transaction between two willing parties for consideration. Defendants thus suggest that the statute does not allow for a process of voter initiative, but only a process to ratify contracts previously entered into between the board of managers and an eligible purchaser. ■

It is plainly required that the legislative intent is primarily to be derived from a consideration of the language used therein. No rule of construction authorizes a court to decide that the legislature did not mean what the plain language imports. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365,432 N.E.2d 855.) The statute is clear in providing a process of voter initiative. It plainly says that whenever a petition signed by not less than 50 electors of the town is presented to the clerk of the board of managers requesting the sale of a community building, the board of managers shall certify the question to election officials to be placed on the ballot in accordance with general election law. It is difficult to imagine a more clear expression of legislative intent. Moreover, the fundamental basis of township government is the right of citizens to participate directly in the government and business of the township. (Ill. Rev. Stat. 1981, ch. 139, par. 39; Smith v. Town of Proviso (1973), 13 Ill. App. 3d 519, 301 N.E.2d 145.) To interpret the word “sale” as defendants suggest would usurp the right of the electors of the township to provide for the disposition of property owned by the township, a power already granted to the electors by virtue of section 3.01 of article IV of “An Act to revise the law in relation to township organization” (Ill. Rev. Stat. 1981, ch. 139, par. 39.01).

Defendants next contend that mandamus will not issue to compel the performance of an illegal act, or when disorder and confusion will necessarily follow. They suggest that to require them to convey the land and building for $10 would amount to consideration so inadequate as to shock the conscience and render the transaction illegal. The confusion they contend will be precipitated by the issuance of the writ is the effect of this decision on the rights of bond holders, though they admit that the building at issue has no outstanding bonded indebtedness.

Mandamus is a summary writ issued from a court of competent jurisdiction which commands an officer to perform some duty the law requires. (People ex rel. Donnelly v. McHenry County Sheriffs Department Merit Com. (1980), 83 Ill. App. 3d 957, 404 N.E.2d 1033.) The issuance of the writ is not a right but is subject to judicial discretion. When a writ will operate to create disorder or confusion and not to promote substantial justice, then its issuance may be denied. (People ex rel. Harrison v. Kelly (1945), 391 Ill. 136, 62 N.E.2d 705.) It will not, as defendants point out, issue for the performance of an illegal act. People ex rel. Cannella v. City of Chicago (1955), 7 Ill. 2d 416, 131 N.E.2d 98.

At bar, the defendants contend the award of a writ in this case would result in confusion and disorder, but the alleged confusion and disorder they point to does not exist; it is only hypothetical. The trial court did not deny the writ on this ground, and we believe this not an adequate reason for its refusal. As for the contention that the contract would be illegal, the cases defendants have called to our attention (Smith v. Smith (1930), 340 Ill. 34, 172 N.E. 32; Bonner v. Westbound Records, Inc. (1979), 76 Ill. App. 3d 736, 394 N.E.2d 1303) do not so hold. While inadequate consideration may be a defense to an action on a contract, the fact that parties bargain for minimal or even shocking consideration does not render the agreement illegal. Moreover, the issuance of the writ in this case does not compel the performance of an illegal act, but compels exactly that which the statute requires, i.e., the submission of the question to the voters.

In plaintiffs’ amended complaint for mandamus, it was alleged that the petitions were delivered to the clerk of the board of managers as required by section 15 of the Act. Attached to defendants’ motion to dismiss, however, was an affidavit by the clerk of the board of managers which averred that the petitions had not been presented to him by plaintiffs, persons signing the petitions, or agents of either. The affidavit further stated that the petitions had been examined by the clerk of the board of managers.

When defendants filed their motion to dismiss, they failed to specify whether it was a motion under section 2 — 619 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619; formerly ch. 110, par. 48) or a section 2 — 615 motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615; formerly ch. 110, par. 45). The motion was granted principally on the theory that plaintiffs had no cause of action under the statute. Defendants’ challenge to plaintiffs’ factual allegations necessary to state a cause of action is not premised on any basis provided for in section 2 — 619, but instead seeks dismissal for plaintiffs’ failure to plead a fact which defendants contend is necessary for a cause of action under section 15.

Treating it as a section 2 — 615 motion, since its principal purpose is to challenge the legal sufficiency of plaintiffs’ complaint, the affidavits cannot properly have been considered. (Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799; Michigan Avenue National Bank v. State Farm Insurance Cos. (1980), 83 Ill. App. 3d 507, 404 N.E.2d 426.) A motion made pursuant to section 2 — 619 is limited to one of the nine grounds which bars relief as stated therein. Defendants’ affidavit does not raise any of those grounds, but seeks to deny the factual allegations of plaintiffs’ complaint. Such a motion is not properly viewed as a section 2 — 619 motion, because of this, the allegation of proper delivery stands admitted for purposes of defendants’ motion, and we need not address what effect the matters raised in defendants’ affidavit would have on plaintiffs’ cause of action. The statute merely requires presentment to the clerk of the board of managers, and plaintiffs have alleged that such requirement has been performed. No other duty is imposed by statute and no other requirement need be inferred.

Finally, defendants, citing Village of Elmwood Park v. Forest Pre serve (1974), 21 Ill. App. 3d 597, 316 N.E.2d 140, argue that property devoted to a public use may not be condemned for a further public use absent explicit legislative authorization. Village of Elmwood Park so held, in the context of a municipality seeking to take land of a forest preserve district to use for recreational activities.

At bar, and contrary to defendants’ assertion, there is no taking by the village of Chatham. Whether the village will ultimately be offered the building for sale as specified is an issue to be decided by the township electorate, and not by the village of Chatham.

For the foregoing reasons, the order of the trial court granting defendants’ motion to dismiss plaintiffs’ complaint for mandamus is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. The order insofar as it dismissed the suit of the village of Chatham is affirmed.

Affirmed in part, and reversed in part and remanded.

GREEN, P. J., and WEBBER, J„ concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    HARRY MATHERS et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    Nos. 81-741, 81-740 cons.
    Opinion filed June 28, 1982.
    Rehearing denied August 16, 1982.

      Eliot A. Landau and G. Geoffrey Wood, both of Landau & Cleary, Ltd., of Downers Grove, for petitioners Harry Mathers, Township of Wheatland, Chuck Lampton, and Cindy Pentzien.
    DeBartolo & DeBartolo, of Aurora, for petitioner Raymond Greenberg.
    Joseph H. Barnett and Tris Michels Baker, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for respondent Donald J. Hamman.
   JUSTICE STOUDER

delivered the opinion of the court:

These consolidated appeals involve a decision of the Illinois Environmental Protection Agency (hereinafter the Agency) denying Donald J. Hamman’s application for a permit to develop a sanitary landfill. That decision was reversed on hearing and again on rehearing by split decisions of the Illinois Pollution Control Board (hereinafter the Board), from which these appeals and a cross-appeal are taken.

The scenario of this dispute began on December 30, 1977, when Hamman applied to the Agency for a permit to develop a sanitary landfill on a 145-acre site adjacent to 111th Street in Wheatland Township, Will County, Illinois. That application and three subsequent applications were denied for reasons not material to the parties’ present litigation. On March 25, 1980, Hamman submitted the application for the developmental permit which gives rise to these causes. On July 21, 1980, the Agency found, inter alia:

“The Wheatland Township Road Commissioner, the E. J. & E. Railroad, and Planning Horizons, Inc. (See April 25, 1980 Traffic Analysis of 111th Street) concur that 111th Street is not designed to carry the truck traffic associated with a landfill. The Wheatland Township Road Commissioner has not agreed in writing for 111th Street to be upgraded to the specifications recommended by Planning Horizons, Inc. This issue must be resolved in order to ensure that trucks will be able to use 111th Street legally. (Rule 314, 316(1) (4), Chapter 7 of the Illinois Pollution Control Board Rule and Regulations). A Public hearing for this proposed sanitary landfill site will not be considered until this problem has been rectified.
Based upon the above condition, this Agency must deny the permit * * *."

The street in question is the immediate access road to the landfill site. Among its relevant problems are the fact that at several points it can only accommodate one-way traffic, is prone to severe flooding, and is a gravel road. Other facts contributing to the road’s unsuitability as a landfill access road need not be articulated, as the need for its improvement is perhaps the only area of agreement.

Rather than submit his application for a sixth time, Hamman appealed the Agency’s denial to the Board, which scheduled a public hearing on November 19, 1980. Notice of the hearing was published both in the Environmental Register and in the Joliet Herald. On November 18, 1980, the Agency and Hamman stipulated that the sole basis of the denial was Hamman’s “failure to present any evidence of agreement by the Wheatland Township Road Commissioner for the upgrading of 111th Street * * *." The following day, the hearing was held. Not a single adversarial counsel, public official, representative of the press, or member of the public was in attendance. Pursuant to the Agency’s stipulation, the hearing officer found that, with the exception of the road problem, all procedural and substantive requirements had been satisfied. A briefing schedule was arranged, but the Agency’s brief was late and this caused Hamman’s brief to also be late. In order to allow the Board to render its decision within the statutory time limit, Hamman voluntarily agreed to extend the time of decision until January 22, 1981.

On January 8, 1981, the Board reversed the Agency and remanded this cause for issuance of a developmental permit. The Agency had based its denial on perceived violations of two rules. The Board found that Solid Waste Rule 314(b) (Ill. P.C.B. Rules and Regs., ch. 7, Rule 314(b)) (hereinafter Rule 314(b)) was limited on its face to roads within a site. It further found that Solid Waste Rule 316 (a) (4) (Ill. P.C.B. Rules and Regs., ch. 7, Rule 316 (a)(4)) (hereinafter Rule 316(a)(4)) was not a bar to the issuance of a permit as it makes no direct reference to roads off the site. A dissent to the Board’s opinion queried, “If Rule 316(a)(4) cannot be read to address the effect of such vehicular traffic upon the land use and the population density within the area, then the rule has little meaning.” See Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 4 (P.C.B. Jan. 8, 1981 dissenting opinion).

On February 11,1981, the Agency moved to vacate the Board’s order and to set the matter for rehearing. On February 13, 1981, Raymond Greenberg, highway commissioner for Wheatland Township, Harry Mathers, and others petitioned the Board for intervention and for rehearing. On February 19, 1981, the Board granted the motions for intervention and rehearing, but did not vacate the order. On March 5, 1981, Chuck Lampton and Cindy Pentzien petitioned for intervention, for rehearing, and for voiding of all prior Board orders in this cause. The Board allowed their intervention and scheduled the rehearing for April 3, 1981. The various other motions and objections made during this phase of the litigation need not be discussed.

The rehearing commenced as scheduled. While the Board determined that it should focus on the reasons for the denial of the permit, it allowed other matters to be raised as offers of proof, with proponents explaining why the evidence was not of record. This resulted in a continuation of the rehearing on April 24, May 8, May 22, May 29, and June 18, 1981. Twenty-five witnesses and over 100 exhibits addressed a myriad of questions concerning the proposed facility. When the rehearing concluded, the Board had over 1,600 pages of transcript and exhibits to review, in addition to the transcript of the original hearing and Agency record of over 1000 pages. According to the uncontroverted report of one attorney, the initial rehearing was attended by over 200 individuals, including 20 public officials, five adversarial attorneys, and four State legislators.

On November 12, 1981, the requirements for obtaining a developmental permit for, inter alia, sanitary landfills were modified. (See Ill. Rev. Stat. 1981, ch. 111½, pars. 1003, 1039, 1039.1, 1040.1.) No permits for the development or construction of a new regional pollution control facility (hereinafter a facility) may now be granted unless an applicant submits proof to the Agency that the facility’s location, if in an unincorporated area, has been approved by the county board after a public hearing. Sanitary landfills are considered facilities, and a new facility is one, inter alia, initially permitted for development or construction after July 1, 1981.

A week after this modification in the law, the Board rendered its decision on rehearing. While various aspects of its supplemental opinion will be discussed hereafter, we note the Board affirmed its earlier decision and held that the Agency’s permit denial for want of a written agreement with the highway commissioner was an unlawful delegation of its permitting authority. Two dissents were filed. Both were grounded on the inadequacy of the access road.

Before turning to the several issues presented for our review, it is necessary for us to rule on the two motions which have been taken with the case. We have previously issued orders regarding two additional motions.

Hamman has moved to strike and dismiss the initial brief submitted by the Township of Wheatland, Lampton, and Pentzien and to dismiss the three from this appeal. He argues that the township never petitioned for intervention at the administrative level, and that the latter individuals have not shown how they would be adversely affected by the Board’s order. In their reply brief, all appellants except Greenberg respond, inter alia, that these arguments have been waived as they were not advanced at the administrative level. Hamman, in his supplemental brief, responds that he could not have known the township was claiming intervenor’s status until it filed its brief in this court, and that Lampton and Pentzien did not petition to intervene in a timely fashion. This prompted the second motion taken with the case. All appellants except Greenberg moved to strike Hamman’s supplemental brief, contending, inter alia, that while the timeliness issue was raised at the administrative level, it was not raised at the time of Hamman’s initial objection to the individual intervenors on the ground that they were not adversely affected. Other matters raised in these motions need be here considered.

Considering first the status of the Township of Wheatland, we note the provision for review under section 41 of the Environmental Protection Act (hereinafter the Act (Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1041):

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of * * *. ”

While the township was unquestionably a participant in the rehearing, its failure to petition precludes it from having the status of a party. It is therefore, under the facts herein and above provision, precluded from obtaining judicial review in this court. (See Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill. 2d 16, 18, 294 N.E.2d 259, 261-62.) Finding Hamman’s objection to be timely, the township’s briefs are stricken, and it is dismissed from this cause.

As for Lampton and Pentzien, we find Hamman’s objection to their intervention at the administrative level on the basis of untimeliness to be waived in this court as it itself was untimely. Turning solely to the issue of adverse effect, these individual intervenors alleged that they were residents of a subdivision sharing the same groundwater system with the proposed facility, and dependent on well water. They further alleged an inadequate road system. We find they thus participated in the hearing and adequately alleged adverse effect. Hamman’s motion is therefore denied as to these parties. The appellant’s motion is also denied as our finding of waiver makes striking the entire responsive brief unnecessary.

The initial issue presented for our review is whether the legal notice of the Board’s initial hearing of this cause violated statutory and constitutional notice and public participation requirements. Section 40 of the Act (Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1040) provides in pertinent part:

“The Board shall give 21 day notice to any person in the county where is located the facility in issue who has requested notice of enforcement proceedings and to each member of the General Assembly in whose legislative district that installation or property is located; and shall publish that 21 day notice in a newspaper of general circulation in that county.”

Procedural Rule 307(b) (Ill. P.C.B. Rules and Regs., part 3, Proc. Rule 307(b)) provides:

“The hearing shall be held in the county in which the alleged violation occurred or in such other county as the hearing officer shall for stated cause designate. The clerk shall give notice of the hearing at least 21 days before the hearing to:
1. All persons on the Board’s mailing list by notice in the Board’s Environmental Register, or by special mailing; and
2. Except when the Agency is complainant, by public advertisement in a newspaper of general circulation in the county in which the cause of action arose.”

There can be no question that there was compliance with the procedural rule. Notice was published in the Joliet Herald and the Environmental Register. The intervenors contend that the residents of Wheatland Township do not generally read the Joliet Herald, but read, in order of popularity, the Suburban Trib, Naperville Sun, Plainfield Enterprise, and Aurora Beacon-News. While this was uncontroverted, the intervenors themselves admit that, with the exception of the Plainfield Enterprise, all are published outside Will County. While the circulation of the Joliet Herald is not of record, we note that not only is Joliet the county seat of Will County, it is the county’s largest municipality. We also note that, before the time the notice was published, law firms had been retained, committees had been formed, and the objectors had written to their legislators and to the Agency. One local official had the courage to admit that his governmental body “subscribed to the Joliet Herald News; delivered to my offices * * * I read the legal notices every day. I don’t miss many but somehow I managed to miss the legal notice referred to in these proceedings.”

The fact that somehow every attorney, committee, individual, and official missed the notice does not, ipso facto, translate into constitutional infirmity. This is especially so when the notice has been placed in the most likely newspaper in the county, and the affected parties were aware that a permit application was pending. The intervenors further claim that part of the explanation for the lack of awareness' of the hearing was that the notice itself was defective. The form of notice employed by the Board is illustrated by that noted in its supplemental opinion:

“Notice is hereby given that a public hearing has been scheduled in the matter of PCB 80-153, Donald Hamman v. EPA, a permit appeal, on April 3, 1981, at 9:00 A.M. in the Will County Courthouse, Grand Jury Room, 14 West Jefferson St., Joliet, Ill.”

We can hardly agree with the intervenors that such a notice is “so worded as to defy even a person of above-average intelligence from identifying the nature of the matter involved * * * We therefore find the newspaper notice met both statutory and constitutional requirements.

More troublesome is the statutory requirement that legislators in affected districts be given notice. Hamman contends that such notice was provided by the Board’s traditional mode of notice, the Environmental Register. The difficulty with this contention is that while the Board does provide the publication to legislators at no cost, it does so only upon request. Neither of the legislators who addressed the issue at the rehearing was sure if his office received the Register; however, we need not reach the question of whether this mode of notice is statutorily sufficient nor the question of whether the intervenors have standing to raise it. The board found, and we agree, that any deficiency in notice of the November hearing was cured during the rehearing process. We note parenthetically that since this first challenge to the notice process, the Board has begun to notify legislators of permit appeals by letter. Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153 (P.C.B. Nov. 19, 1981).

We are next presented with a series of issues concerning whether the granting of the permit was against the manifest weight of the evidence: (1) Whether there was a proper record to support the actions of the Agency and Board; (2) whether the pre-April 1981 record contains inadequate evidence to justify the issuance of a developmental permit; (3) whether the Agency and Board improperly relied on evidence from a biased source in violation of due process; and (4) the manifest weight question itself. Before turning to these issues, we first must consider the further issue of whether the Board erred in determining its scope of review.

In its supplemental opinion, the Board held that the sole substantive issue before it was the road issue. It accordingly rejected all offers of proof not relating to the lack of an agreement for the upgrading of 111th Street. The intervenors, in effect, argue the rehearing should have been in the nature of a hearing de novo.

Section 39(a) of the Act (Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1039(a)) provides in pertinent part:

“If the Agency denies any permit under this Section, the Agency shall transmit to the applicant within the time limitations of this Section specific, detailed statements as to the reasons the permit application was denied. Such statements shall include, but not be limited to the following:
(i) the sections of this Act which may be violated if the permit were granted;
(ii) the provision of the regulations, promulgated under this Act, which may be violated if the permit were granted;
(iii) the specific type of information, if any, which the Agency ■ deems the applicant did not provide the Agency and;
(iv) a statement of specific reasons why the Act and the regulations might not be met if the permit were granted.”

Section 40(c) of the Act (Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1040(c)) provides that the review of a permit denial “be based exclusively on the record before the Agency * * * unless the parties agree to supplement the record.” In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 557, 387 N.E.2d 258, 264, the court noted the statutory roles of the Board and Agency in the permitting process:

“The Board’s principal function is to adopt regulations defining the requirements of the permit system (Ill. Rev. Stat. 1975, ch. 111½, pars. 1005(b), 1039). The Agency’s role is to determine whether specific applicants are entitled to permits (Ill. Rev. Stat. 1975, ch. 111½, par. 1039). The need for a technical staff capable of performing independent investigations dictates that the job of administering the permit system be entrusted to the Agency rather than the Board (Currie, Enforcement Under Illinois Pollution Law, 70 Nw. U.L. Rev. 389, 475 n.427 (1975)). If the Board were to become involved as the overseer of the Agency’s decision-making process through evaluation of challenges to permits, it would become the permit-granting authority, a function not delegated to the Board by the Act.

The one statutory exception to the Board’s quasi-legislative role in relation to permits is in instances in which the Agency has denied a permit (Ill. Rev. Stat. 1975, ch. 111½, pars. 1005(d), 1040). Explicit procedural requisites are established for Board review of permit denials (Ill. Rev. Stat. 1975, ch. 111½, par. 1040), and Agency appearance at such permit-denial hearings is mandated (Ill. Rev. Stat. 1975, ch. 111½, par. 1004(f)). The Agency is also required to transmit to the applicant a detailed statement as to the reasons the permit application was denied (Ill. Rev. Stat. 1975, ch. 111½, par. 1039(a)).”

In Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 427 N.E.2d 162, as in the case at bar, the Board ordered the Agency to issue a permit it had previously denied. The initial denial was by letter:

" ‘As required by Section 39 of the Illinois Environmental Protection Act, specific reasons why the Rules and Regulations might not be met follow:

The #8, #10, #11, and #12 blast furnaces emit particulate matter, by our analyses, in excess of that amount allowed by Rule 203(a). Therefore no permit may be granted.’ ” (Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 395, 427 N.E.2d 162, 164.)

U.S. Steel Corporation petitioned the Board alleging that the Agency had improperly applied the above rule to emissions governed by Air Pollution Rule 203(f) (Ill. P.C.B. Rules and Regs., ch. 2, Rule 203(f)), which deals with fugitive particulates and with which it was in compliance. The court concluded:

“We do not believe, however, that the issue of compliance with Rule 203(f) was even before the Board. Section 39 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1039) requires that the Agency state reasons for denial of a permit: ‘If the Agency denies any permit under this Section, the Agency shall transmit to the applicant within the time limitations of this Section [90 days] specific, detailed statements as to the reasons the permit application was denied,’ including ‘(ii) the provision of the regulations, promulgated under this Act, which may be violated if the permit were granted’ (Ill. Rev. Stat. 1977, ch. 111½, par. 1039). The Agency’s letters did not specify any violation of Rule 203(f). * * * We believe that the Agency had a duty, reading sections 39 and 40 of the Act together, to specify reasons for the denial, including, if it intended to raise the issue before the Board, the lack of compliance with Rule 203(f), or be precluded from raising that issue.” Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 405, 427 N.E.2d 162, 169-70.

In the case at bar, the Agency denied the developmental permit because of the anticipated violation of Rules 314(b) and 316(a)(4). The Board therefore appropriately limited its review to the alleged Rule 316(a)(4) violation- after the Agency had conceded its position on the former rule. The Board further appropriately followed its statutory mandate in rejecting the offers of proof. This being the case, we shall limit our consideration of the aforementioned four issues to the road issue and the constitutional question.

The intervenors contend that their right to due process of law was violated when the Agency and Hamman stipulated that, except for the road issue, the application complied with all statutory requirements without giving the public adequate notice of the proceedings and the opportunity to cross-examine witnesses and rebut the evidence presented by Hamman. They further allege the Agency “rubber-stamped” a “highly biased and personally interested” source of evidence, further depriving them of due process.

We have no quarrel with the proposition that administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 416 N.E.2d 1082.) The issue of notice has previously been addressed. As to the remaining allegations:

“The constitutional argument is without merit in light of the statutorily established mechanism for persons not directly involved in the permit-application process to protect their interests without embroiling the Board in an examination of the Agency’s permit-granting procedure.

Section 31(b) authorizes citizen complaints against alleged violators of the Act, any Board rule or regulation, or Agency permit; it requires the Board to hold a hearing on all such complaints which are not ‘duplicitous or frivolous’ (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(b)). At that hearing, the complainant bears the burden of showing actual or threatened pollution or actual or threatened violations of any provisions of the Act, rules, regulations, or permits. (Ill. Rev. Stat. 1975, ch. 111½, par. 1031(c).) The grant of a permit does not insulate violators of the Act or give them a license to pollute; however, a citizen’s statutory remedy is a new complaint against the polluter, not an action before the Board challenging the Agency’s performance of its statutory duties in issuing a permit. As the principal draftsman of the Act has noted, ‘One receiving a permit for an activity that allegedly violates the law can be charged with causing or threatening to cause such a violation in a citizen complaint under section 31(b), and the regulations expressly provide that the existence of a permit is no defense to such a complaint.’ (Emphasis added.) Currie, Enforcement Under Illinois Pollution Law, 780 Nw. U.L. Rev. 389, 478 (1975).” (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 559-60, 387 N.E.2d 258, 265.)

See also South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App. 3d 815, 379 N.E.2d 349.

This brings us to the remaining three issues of this aspect of the litigation. As previously noted, there has never been any question as to the inadequacy of the access road, and this inadequacy is supported in the Agency record. In its initial opinion the Board found Rule 316(a)(4) was inapplicable as the rule “makes no direct reference to roads off the site.” (Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 2 (P.C.B. Jan. 8, 1981).) In its supplemental opinion, it found “the Agency has unlawfully delegated its permitting authority” and added:

“To the extent that the Agency’s denial was a result of environmental concerns rather than traffic control or other concerns, the environmental concerns could have been satisfied by issuance of a permit containing a condition that 111th Street be improved by Hamman at his expense, as Hamman has repeatedly agreed to do. * * *” (Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 11 (P.C.B. Nov. 19, 1981).)

As the supplemental order provides that “the Board clarifies its Opinion and reaffirms its Order of January 8, 1981 * * *” (Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 12 (P.C.B. Nov. 19, 1981)), we shall address both holdings. Before doing so, a final digression is necessary.

The intervenors and Hamman each advance an issue which could render our decision on the ultimate evidentiary question unnecessary. The intervenors contend that Hamman is bound by the change in the law regarding, inter alia, sanitary landfills, and therefore the permit must be denied for want of a public hearing and county board approval. Hamman contends, on cross-appeal, that the permit issued by operation of law as there was no final Board action within the statutorily prescribed time.

Turning first to the applicability of the amendments to the Act, the new law is applicable to this case. (See Cronin v. Lindberg (1976), 66 Ill. 2d 47, 54, 360 N.E.2d 360, 363.) Therefore, under the relevant provisions previously set forth, we must determine whether the sanitary landfill is a . new facility. This determination rests on whether the facility was “initially permitted for construction after July 1, 1981.” The Board found as follows:

“Finally, the Board wishes to again comment that, in its opinion, final action concerning this permit was taken on January 8, 1981. Reference should be made to that date in determining the applicability of any legislative enactments subsequent to the Agency’s denial decision of July 21,1980, regardless of the date on which the Agency completes the now-ministerial task of issuing the permitting paper.” Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 12 (P.C.B. Nov. 19, 1981).

The reason for this finding may be indicated by Hamman’s contention that the permit issued by operation of law. The Act mandates that final action on permit reviews by the Board must take place within 90 days of the filing of the petition, or the petitioner may deem the permit issued. (Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1040(a).) Hamman agreed to extend the 90-day period to January 22, 1981, and the Board filed its initial order and opinion well within the extended period. He now argues that, if the permit did not issue on January 8, 1981, it must be deemed to have issued on January 23, 1981. Based on this argument, Hamman objected to the rehearing and renews his objection on appeal.

Procedural Rule 333 (Ill. P.C.B. Rules and Regs., ch. 3, Proc. Rule 333) provides that motions for rehearing, and certain other motions, may be filed within 35 days after the adoption of a final order. While no explicit statutory authority sanctions Board rehearings, they have been found to be within the purview of' the Act. (See Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 501, 351 N.E.2d 875, 877-78, appeal denied (1976), 64 Ill. 2d 596.) In Modine, the 90-day limit was extended by the parties’ stipulation. Where a party has not so agreed, the limit is binding. (See Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App. 3d 434, 437, 405 N.E.2d 512, 516.) The Board’s own rules provide that certain motions do not affect the finality of certain final orders (see Ill. P.C.B. Rules and Regs, part 3, Proc. Rule 334(c)(1)), and by utilizing the same rationale here, the 90-day limit is allegedly not exceeded. If the finality of the order is affected, then the permit would issue by operation of law. Given this situation, it is unnecessary for us to reach either issue. In either case, the facility was “initially permitted for development or construction” before July 1, 1981, and thus is not a new facility. This being the case, a public hearing and county board approval are unnecessary.

Having so found, we conclude with the consideration of the Board’s decisions. Turning first to the alleged improper delegation of authority, we note that the Agency “has not been authorized to delegate the responsibility placed upon it by the General Assembly to decide whether or not a sanitary landfill should be permitted to operate at a specified location.” (Carlson v. Village of Worth (1975), 62 Ill. 2d 406, 410, 343 N.E.2d 493, 496.) While we might comment, by way of dictum, that allowing Greenberg to block the improvement of the road at Hamman’s expense might well be viewed as such a delegation, it will be seen that a holding on the issue is unnecessary.

Regardless of the reason, Hamman has failed to present any evidence that the access road will be upgraded to the specifications accepted by the Agency. The Board acknowledges that Solid Waste Rule 316(a)(4) could serve as the basis of a permit denial if supported by sufficient findings of fact in the Agency’s denial letter. While the better practice would clearly be to adhere to the Act’s mandate (See Ill. Rev. Stat., 1980 Supp., ch. 111½, par. 1039 (a)(iv)), Hamman here conceded the necessity of the required action. At no point in time has he even intimated that the failure to upgrade the road would do anything but cause environmental damage. Under these specific circumstances, we do not find the lack of specific reasons in the denial letter eliminates the applicability of the subject rule.

The conceded need for the upgrading of the road, coupled with the Agency record containing the road study accepted by the Agency, provides a proper and pre-April 1981 record to support the Agency’s conclusions regarding the road. Given this situation, we find the Board’s order to issue the developmental permit, in its present form, to be against the manifest weight of the evidence. We therefore reverse the Board’s orders and remand this cause to the Board with directions that it order the Agency to issue a developmental permit “containing a condition that 111th Street be improved * * *” (Hamman v. Illinois Environmental Protection Agency, No. PCB 80-153, slip op. at 11 (P.C.B. Nov. 19,1981)) according to the specifications accepted by the Agency. The intervenors remain free to pursue administrative and judicial remedies as sanctioned by the Act and the Board’s regulations.

Accordingly, the Board’s orders are reversed and this cause remanded with directions.

Reversed and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTRIC BROWN, Defendant-Appellant.
    Third District
    No. 81-755
    Opinion filed July 20, 1982.
    ALLOY, J., specially concurring.
    Robert Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys'Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On December 10, 1980, Artric Brown, the defendant, was indicted for conspiracy to deliver a controlled substance (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a); ch. 38, par. 8 — 2(a)), and calculated criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56½, par. 1405(a)). A Rock Island jury returned convictions on both offenses. Mr. Brown was sentenced to six years on the calculated drug conspiracy felony. No sentence was levied on the conspiracy charge. Defendant appeals.

Two issues are before us. They are: whether the People proved the calculated drug conspiracy occurred in Rock Island County; and, whether the trial judge erred in remitting defendant’s bail bond deposit as payment for services of appointed counsel.

On September 23,1980, William Haley, a State of Illinois undercover police agent, Mary Woolery, an undercover police officer, and their informant, met David Madden in his Rock Island apartment. The police officers wanted to make a controlled purchase of heroin. Madden took them to the Silver Streak saloon in Rock Island. He was to act as an intermediary between Haley and the heroin source. The seller, someone named Frank, was to meet Madden at this bar and Madden would then introduce him to Haley. Frank did not surface. Joe Cooper did. Interestingly, Joe Cooper was also known as Frank Nitty. He told Madden and Haley that Frank had been arrested. Undashed, Haley still wanted to buy heroin. Cooper said he could oblige him, but they would have to travel to Chicago to complete the transaction. Everyone agreed to this. Cooper telephoned his supplier, someone named Chuck, and the deal was struck. Cooper told Haley that the packaged heroin would be waiting for them in Chicago. Cooper, Haley, Woolery, the informant and Madden left Rock Island by car for Chicago. Later, they arrived at a Walton Avenue address in that city. Allegedly, Cooper conversed with Chuck. He was told to return at 5 p.m. to buy the contraband. While waiting, Haley contacted nearby police surveillance units. At 5 p.m. he went to the Walton Avenue flat. He was informed by Madden that Chuck had been stopped and detained by the police on an unrelated matter. Since he was still at the police station he could not complete the transaction. Madden also stated that Cooper was negotiating a purchase of heroin from Chuck’s cousin, the defendant. Eventually, Haley met the defendant and agreed to purchase several bags of heroin from him for $1,800. The sale was completed in the vicinity of a Cicero Avenue tavern in Chicago around 6:15 p.m. Cooper, Madden, Haley, and the informant shortly thereafter returned to Rock Island by car. Agent Woolery was left at a Chicago bus terminal. Cooper, Madden, and the defendant were arrested later that evening.

Defendant says that if any calculated criminal drug conspiracy occurred, it did so in Cook County, not Rock Island County. And, since defendant had no connection with any events which took place in Rock Island County, the circuit court was without jurisdiction to try him there.

The offense of calculated criminal drug conspiracy is a statutory offense. A person commits it when:

"* * * (1) he violates any of the provisions of subsections (a) or (b) of Section 401 (the manufacture or delivery of certain controlled substances, including heroin); or subsection (a) of Section 402 (possession of certain controlled substances, including heroin); and
(2) such violation is part of a conspiracy undertaken or carried on with two or more other persons; and
(3) he obtains anything of value greater than $500 from, or organizes, directs or finances such violation or conspiracy. * * (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 56%, par. 1405(b)(1) through (3).)

Thus, a calculated drug conspiracy requires a minimum of three persons. This is one more person than is required in a simple conspiracy.

The calculated criminal drug conspiracy here involved the requisite three persons: namely, Cooper, Madden, and the defendant. This conspiracy began in Rock Island where Cooper, Madden and Haley met for the purpose of transacting a heroin sale. When the defendant agreed to deliver heroin in Chicago, he entered the conspiracy which began in Rock Island by Cooper and Madden. It is undisputed that Mr. Brown obtained the drugs which were purchased by the police. This was an act in furtherance of the original agreement, conceived in Rock Island, which was to go to Chicago and buy heroin. It was merely an extension or prong of that illegal scheme. People v. Perry (1961), 23 Ill. 2d 147, 155, cert. denied (1962), 369 U.S. 868, 8 L. Ed. 2d 86, 82 S. Ct. 1035.

A calculated criminal drug conspiracy is an inchoate offense. It may be tried in any county where an act, which is an element of the offense, is committed. (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(m).) The agreement to purchase heroin was devised in Rock Island by Cooper and Madden even though the ultimate purchase transpired in Chicago. They agreed to break the law by buying and thereby supplying Haley with heroin. The situs of the sale was agreed to be in Chicago. Such agreements were sufficient to lay venue in Rock Island County. The fact Mr. Brown was unaware of such a plot and had never set foot in Rock Island County is immaterial. (People v. Miller (1933), 352 Ill. 537, 539-40.) Legally, Brown was vicariously liable for all acts done by any other parties to a conspiracy already composed, either before or after his entrance into the conspiracy, as long as such acts were in furtherance of the conspiracy. (People v. Glassberg (1927), 326 Ill. 379, 388-89.) In law, Mr. Brown was a party to the original agreement of Madden and Cooper to traffic in heroin. The fact the heroin was purchased from defendant instead of Chuck is of no consequence, since when defendant obtained the drugs he was acting in furtherance of the original plan and was implementing as well as bringing to fruition its illicit design. (See People v. Pascarella (1981), 92 Ill. App. 3d 413, 417-18.) Thus, venue in Rock Island County, the place where an act in furtherance of this offense occurred, was proper. That this rule of law is anomalous is true. It is, however, settled law.

Finally, defendant maintains reimbursement to the county for the cost of appointed counsel from his bail bond was wrong. Citing People v. Cook (1980), 81 Ill. 2d 176, Mr. Brown says the statute (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(g)) authorizing such remittance is unconstitutional. The People reply that defendant was not a pauper and thus the trial court had inherent equitable authority to order such restitution.

The parties’ disagreement exists because the record does not contain a finding by the trial judge that defendant was or was not indigent. We remand the cause for a hearing on that issue. If defendant was indigent, the mandate of Cook applies: if he was not a pauper then disbursement from his bail bond may be ordered in the discretion of the trial court. People v. Wiley (1980), 85 Ill. App. 3d 749, 750.

For the reasons stated, the judgment of conviction and sentence of the Rock Island Circuit Court for criminal calculated drug conspiracy is affirmed. That portion of the court’s order relating to reimbursement for costs of counsel is vacated. This cause is remanded for a hearing consistent with the views expressed herein regarding that matter.

Judgment affirmed. Reimbursement order vacated. Cause remanded.

STOUDER, J., concurs.

JUSTICE ALLOY,

specially concurring:

I concur in the result reached by the majority that venue properly lay in Rock Island County for the section 405(b) conspiracy, but whereas the majority finds that just Cooper and Madden are necessary to achieve that result, I believe the presence of a third conspirator, Chuck, is also necessary.

As the majority correctly indicates, a calculated criminal drug conspiracy is somewhat of a rare avis because it requires agreement among at least three participants (Ill. Rev. Stat. 1979, ch. 56½, par. 1405(b)(2)), while an ordinary conspiracy takes just two conspirators to result in criminal liability (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2). Thus, it is possible to have an agreement between two persons which results in no criminal liability under section 405(b) until another agreement by a third conspirator occurs. Placed in perspective of the present case, although Cooper and Madden agreed in Rock Island to sell heroin to Haley, a section 405(b) conspiracy was legally impossible because the minimum number of conspirators was then lacking. The majority, however, would interpret the venue section of the Criminal Code of 1961 to include the situs of this first, incipient agreement as a possible trial situs, even though that agreement did not itself result in criminal liability. For this reason I do not find the case law cited by the majority to be directly persuasive, because in every instance the offense involved was ordinary conspiracy where criminal liability results at the moment an agreement is reached between at least two participants. The majority’s application of the vicarious liability rule to an agreement not itself resulting in criminal liability only expands the already bloated bounds of conspiracy law which have made the offense the “ '* * * darling of the * * * prosecutor’s nursery.’ ” (W. LaFave & A. Scott, Jr., Criminal Law sec. 61, at 455 (1972), quoting from Harrison v. United States (2d Cir. 1925), 7 F.2d 259).) The accused’s right to be tried by a jury in the county where the offense allegedly took place is an important constitutional guarantee, for it safeguards against unfairness and hardship caused when he is prosecuted in a remote place and should not be restricted without express legislative authority.

I also submit that today’s result is inconsistent with the result that would occur in an analogous situation involving ordinary conspiracy. The following example illustrates. A is in Rock Island and decides he wants to sell some heroin. He has none, but he knows that B, who lives in Chicago, can get some. A goes to Chicago and contacts B who agrees to sell heroin to A. Later they meet at B’s Chicago apartment and conclude the transaction. They are then arrested. Under the majority’s holding, B could be tried in Rock Island County because the incipient or intended conspiracy, which at that time did not constitute an offense since only one conspirator then existed, began with A in Rock Island. Under established conspiracy law, however, venue lies exclusively in Cook County because all three conspirators were in Chicago when the agreement was made and all acts done in furtherance thereof also occurred there.

Nevertheless, venue for the section 405(b) charge did lie in Rock Island County because the defendant joined a pre-existing conspiracy consisting of Cooper, Madden, and Chuck. In his brief, the defendant concedes that a possible venue for this conspiracy rests in Rock Island County because Cooper and Madden were located in Rock Island County when they agreed over the telephone to buy heroin from Chuck. He argues, however, that once Chuck was arrested, Chuck withdrew from that conspiracy leaving only Cooper and Madden; with only two conspirators, a section 405(b) conspiracy was legally impossible, thus terminating the conspiracy which began in Rock Island. The defendant concludes that although a second section 405(b) conspiracy arose when he agreed to sell Cooper and Madden heroin, the agreement and all acts done in furtherance thereof occurred in Chicago; thus, venue lay exclusively in Cook County. The defendant’s argument fails because he incorrectly equates Chuck’s arrest with his withdrawal. In order to withdraw from a conspiracy, a conspirator must take some affirmative action, either confessing to police or informing his co-conspirators that he has withdrawn. (United States v. Borelli (2d Cir. 1964), 336 F.2d 376, cert. denied in Cinquegrano v. United States (1964), 379 U.S. 960, 13 L. Ed. 2d 555, 85 S. Ct. 647.) In applying this definition of withdrawal, courts have consistently held that, while a conspirator’s arrest accompanied by his confession to the conspiracy may constitute a withdrawal, a conspirator’s arrest or incarceration alone is not a disavowal of his participation and will not work his withdrawal from the conspiracy as a matter of law. (United States v. Panebianco (2d Cir. 1976), 543 F.2d 447, cert. denied in Anatala v. United States (1977), 429 U.S. 1103, 51 L. Ed. 2d 553, 97 S. Ct. 1128; United States v. Harris (7th Cir. 1976), 542 F.2d 1283, cert. denied in Clay v. United States (1977), 430 U.S. 934, 51 L. Ed. 2d 779, 97 S. Ct. 1558; United States v. Borelli.) This is especially true where, as here, the incarceration was for a matter unrelated to the offense charged in the conspiracy indictment. Thus, because Chuck’s arrest did not end his participation in the calculated criminal drug conspiracy, which the defendant concedes began in Rock Island, and because this conspiracy was not otherwise terminated before the defendant entered, the defendant entered into a pre-existing calculated criminal drug conspiracy and was vicariously liable for the previous agreement, made partially in Rock Island, to deliver heroin. For this reason the circuit court of that county was authorized under section 1 — 6(m) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(m)), to try the defendant for the charge of calculated criminal drug conspiracy despite his never having set foot in Rock Island County. People v. Pascarella (1981), 92 Ill. App. 3d 413, 415 N.E.2d 1285.


author: JUSTICE MILLS

text:
    HENRY L. GREENHOLDT, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.
    Fourth District
    No. 17517
    Opinion filed July 19, 1982.
    Rehearing denied August 13, 1982.

      Leahy and Leahy, of Springfield (Mary Lee Leahy and Andrew J. Leahy, of counsel), for appellant.
    Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellee.
   JUSTICE MILLS

delivered the opinion of the court: „

Did Illinois Bell violate article I, section 17, of the State Constitution?

No — Illinois Bell’s “intercity transfer policy” does not fall within the pale of section 17.

Background

Henry Greenholdt had been an employee of Illinois Bell for 23 years. He started as a frame man installing wires at the central office in Chicago, worked his way up in the company over the years, and in 1962 was promoted to a systems staff analyst in the comptroller’s office. In 1965, Greenholdt was appointed assistant data processing manager in Bell’s Marquette Park office and two months later was promoted to manager. In 1969, he was transferred to the Arlington Heights office where he was responsible for converting the computer punch card system to a magnetic tape and disk program. This conversion became known as the CRIS (Customer’s Records Information System) conversion.

In September 1970, Greenholdt was transferred to the comptroller’s office in Springfield to head up the same type of CRIS conversion that he had managed in Arlington Heights. Several other Chicago employees were sent to Springfield to work on the conversion. Also, two persons were hired out of college to work on the project and there were some regular Springfield employees who were assigned to the conversion project. The project began in 1970 and was completed in 1971. After the conversion, there was an excess of management level employees in the Springfield office. Except for Greenholdt, everyone who had either been transferred to Springfield or specificaUy hired to work on the CRIS conversion was transferred to Chicago by the end of 1972. He stayed in Springfield, was promoted to district manager, and replaced the former district manager who was transferred to Chicago.

At a meeting in July 1978 between Greenholdt, Chuck Scott (his supervisor), and Joe Abel (Scott’s supervisor), Greenholdt was asked what his position was concerning a transfer to Chicago. He said he did not want to leave Springfield because his two daughters were just entering high school, his wife was involved in “enterprises” that could not be duplicated elsewhere, both he and his wife were involved in the community, and one of his daughters had a medical problem that could best be handled in Springfield. Abel told Greenholdt that he did not know if any transfers were “in the mill” but that his name would come up when transfers were discussed and he wanted to know how Greenholdt felt before anything happened.

Towards the end of July, William Springer, the comptroller, met with the assistant comptrollers to discuss different job openings and the needs of the business. There was a staff opening in Chicago, which Joe Abel described as one of the more critical staff assignments, and it was decided that Greenholdt was the best candidate for the position. Abel testified:

“We did talk about the fact that Hank would not want to move from Springfield, but when we looked at the opportunity for him and the needs of the business, it seemed to be a good fit. We also had a man by the name of Bill Pietrowics at AT&T, and Bill had had a single District level assignment on AT&T staff and had not had any line experience, and it seemed also to be a good time to give him a directly centralized line operation, and the plan unfolded of Hank coming to Chicago to take the staff assignment and Bill Pietrowics to follow in behind Hank.”

On August 7, 1978, Greenholdt’s supervisor told him he was being transferred to Chicago and that Bill Pietrowics was replacing him in Springfield. Later that day, Greenholdt talked with Joe Abel who sympathized with his desire to stay in Springfield but told him that the transfer would enable him to progress in the company and that the transfer was good for Bill Pietrowics and good for the company. Later in August, Greenholdt arranged a meeting with Chuck Scott and Joe Abel. He told them he could not move to Chicago and reiterated the reasons he had expressed to them in their July meeting. Greenholdt subsequently wrote to William Springer, the comptroller, and Charles Marshall, the president of Illinois Bell, asking them to countermand the transfer. Both refused.

Abel had several conversations with Greenholdt, attempting to change his mind about moving to Chicago. When Bill Pietrowics moved into the Springfield office in September, Abel flew to Springfield and met with Greenholdt and Chuck Scott to discuss one more time Greenholdt’s decision to refuse the transfer. Abel testified that Greenholdt’s position in Chicago was left open for several weeks “in the hope that maybe something could come around here.” Greenholdt never showed up in the Chicago office and the position was subsequently filled. None of Greenholdt’s supervisors told him he was fired. His employment record indicates that he “resigned — abandoned job.”

Count I of Greenholdt’s three-count complaint alleged that he was deprived of his right to be free from discrimination based on sex in violation of article I, sections 17 and 18, of the 1970 Illinois Constitution. Count II alleged that Illinois Bell’s act of sex discrimination was done knowingly, wilfully and deliberately, and count III alleged that Bell breached an implied contract by transferring Greenholdt. Pursuant to Bell’s motion to dismiss, the trial judge dismissed counts I and II to the extent that they were based on article I, section 18. Count III was stricken but Greenholdt was allowed 10 days to file an amendment. At the close of Greenholdt’s evidence, Bell again made a motion to dismiss the complaint. The motion was denied as to counts I and II and allowed as to count III. After hearing all the evidence, the trial judge entered a judgment in favor of Illinois Bell and Greenholdt appeals from that judgment.

Greenholdt argues that the trial court’s judgment was against the manifest weight of the evidence. At trial, he attempted to establish that Bell’s transfer policy discriminated against males, in that male managers were required to accept transfers or lose their jobs, whereas female managers were given the option to refuse transfers. Greenholdt’s evidence consisted chiefly of the testimony of managerial employees who worked in the Springfield office from 1970 to 1978. This evidence was offered to show that more men than women were transferred from Springfield and that women were given the option to refuse transfers. Bell offered evidence showing that its transfer decisions were based on several factors but not on the employee’s sex. The most compelling of Bell’s evidence was that an employee’s management level was a key factor in whether he or she was expected to transfer. The higher one was in the managerial hierarchy, the greater the expectation that that person would be transferred. Greenholdt, a level 3 manager, was the highest ranking employee in the Springfield office. All of the women in the Springfield office were level 1 managers except for one who was a level 2 manager.

We do not, however, reach the question of whether the trial court’s judgment was against the manifest weight of the evidence, for we hold that the trial court erred in denying Bell’s motion to dismiss Greenholdt’s complaint for failure to state a cause of action.

Constitutional Intent

I

Article I, section 17, of the Illinois Constitution provides:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.” (Ill. Const. 1970, art. I, sec. 17.)

Greenholdt first contends that section 17 is not limited to hiring and promotion practices, but rather, extends to all employment practices.

A court must construe a constitutional provision so as to effectuate the intent of its drafters. (People v. Turner (1964), 31 Ill. 2d 197, 201 N.E.2d 415.) The best indication of the intent of the drafters of a constitutional provision is the language which they voted to adopt. (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 374 N.E.2d 211.) And the courts will interpret that language in accordance with its plain and commonly understood meaning. (Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 359 N.E.2d 138; Hamer v. Board of Education (1970), 47 Ill. 2d 480, 265 N.E.2d 616.) The plain and commonly understood meaning of “hiring and promotion practices” does not include all employment practices.

An additional aid in the construction of constitutional provisions is the record of the proceedings of the constitutional convention which our courts have consulted in order to give effect to the policies involved. See Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 299 N.E.2d 737; Village of Sherman v. Village of Williamsville (1982), 106 Ill. App. 3d 174, 435 N.E.2d 548.

When section 17 was presented to the delegates by Lewis Wilson, several questions were raised as to why the section was limited to hiring and promotion practices. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1595-96 (hereinafter cited as Proceedings).) Delegate Wilson’s responses to these qustions are a bit problematic. There is language in the record revealing that Delegate Wilson was of the belief that the Bill of Rights committee, which drafted section 17, intended the section to cover all employment practices. Delegate Wilson did recognize, however, that the wording of section 17 may not have been so inclusive, but stated that this was a question “basically of language rather than thought.” (3 Proceedings 1595.) The problem is, of course, that a question of language is a question of thought. The fact that the delegates were well aware of the limited wording of the proposed section and yet adopted that language, without amendment, indicates that they intended section 17 to only extend to hiring and promotion practices as opposed to all employment practices. Furthermore, the comments of James Kemp, the vice chairman of the Bill of Rights committee, indicate that the particular words used by the drafters were thoughtfully chosen:

“The absence of a constitutional provision providing for equality of employment opportunity and upgrading based on merit, coupled with the absence of a constitutionally provided access to housing depending upon one’s ability to pay, produces the following drag on the Illinois economy — .” (3 Proceedings 1595.)

The ideas of “employment opportunity and upgrading based on merit” are accurately reflected in the words “hiring and promotion practices.”

The plain meaning of the language used in section 17, along with the insight provided by the vice chairman of the committee which drafted that section, lead us to the conclusion that article I, section 17, extends to hiring and promotion practices but not to all employment practices.

II

We must next determine whether Bell’s intercity transfer policy was a “promotion practice” within the meaning of section 17. For the purpose of ruling on the trial court’s denial of Bell’s motion to dismiss Greenholdt’s complaint for failure to state a cause of action, the allegations of plaintiff’s complaint stand admitted. (People ex rel. Byrnes v. Stanard (1956), 9 Ill. 2d 372, 137 N.E.2d 829.) Accordingly, we presume, as Greenholdt alleged, that Bell required its male managers to transfer, while it allowed its female managers the option to refuse transfers.

It is uncontested that Greenholdt’s transfer to Chicago was not a promotion. However, both parties recognized that the experience Greenholdt would have gained from the new position would have been a favorable consideration in connection with a possible future promotion. Admittedly, some nexus exists between the alleged transfer policy and promotions. Yet a “nexus” analysis is of little use since with the proper semantic gymnastics any practice could be characterized as a hiring and promotion practice. A more functional approach to this problem is to inquire whether characterizing Bell’s policy as a promotion practice would further the purpose of section 17. We consider the rule of statutory construction which requires a reviewing court to interpret a statute in such a manner as to promote its essential purpose to be equally applicable to the interpretation of constitutional provisions. See Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 269 N.E.2d 504; Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345; see also Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 359 N.E.2d 138; Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 290 N.E.2d 886.

To discern the purpose of section 17 we must, once again, delve into the record of proceedings of the constitutional convention. Delegate Wilson, who initially presented section 17 to the convention, indicated the reason for section 17 was that the right to be free from discrimination was fundamental and that it was “on the same plane with the other basic rights guaranteed by the constitution — freedom of speech, freedom to assemble, freedom to worship, due process of law.” (3 Proceedings 1593.) However, this does not explain why the Bill of Rights committee intentionally limited section 17 to the specific areas of hiring and promotion practices in employment and the sale and rental of property. An explanation for this limited scope was provided by the committee’s vice chairman. Delegate Kemp’s comments, which we have quoted in part above, bear repetition:

“The absence of a constitutional provision providing for equality of employment opportunity and upgrading based on merit, coupled with the absence of a constitutionally provided access to housing depending upon one’s ability to pay, produces the following drag on the Illinois economy — .

3 3 3

—now second-generation public assistance families which cost you, the taxpayer, money; and increased Illinois prison population which costs you, the taxpayer, money; the expressway construction and maintenance cost which costs you, the taxpayer, money.” 3 Proceedings 1595.

A concept similar to that described by Delegate Kemp had earlier prompted the Illinois legislature to enact the former Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.), repealed and superseded by the Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.). Section 1 of the Act was a declaration of policy in which the General Assembly stated:

“Whereas denial of equal employment opportunity because of race, color, religion, sex, national origin, ancestry, physical or mental handicap unrelated to ability, or unfavorable discharge from military service, with consequent failure to utilize the productive capacities of individuals to the fullest extent deprives a portion of the population of the State of earnings necessary to maintain a reasonable standard of living, thereby tending to cause resort to public charity and may cause conflicts and controversies resulting in grave injury to the public safety, health and welfare: Therefore, it is declared to be the public policy of this State that * * * equal employment opportunity or apprenticeship opportunity without discrimination * * * should be protected by State law.” Ill. Rev. Stat. 1979, ch. 48, par. 851.

Whether the purpose of section 17 is regarded as establishing fundamental rights or promoting sound economics or both, the means by which these purposes are to be effected was accurately described by Delegate Kemp. With respect to the areas of employment, these purposes are achieved by providing for “equality of employment opportunity and upgrading based on merit.”

Because we are dealing with an alleged promotion practice, our inquiry is whether Greenholdt was denied the opportunity for upgrading based on merit. When presented with the question of whether Greenholdt was denied an equal opportunity for advancement based on merit, our response must be that he was not denied such an opportunity. The record shows that the transfer would have improved his position with respect to future promotions. This potential for advancement was not denied him. On the contrary, the opportunity was offered to him and he refused it. The discriminatory practice, as alleged by Greenholdt, does not deprive males of an equal opportunity for advancement based on merit. Therefore, it would not further the purposes of section 17 to characterize the alleged practice as a promotion practice within the meaning of section 17.

The trial court erred in denying Bell’s motion to dismiss Greenholdt’s complaint for failure to state a cause of action. The judgment of the trial court is vacated, and the case is remanded with directions that the complaint be dismissed.

Judgment vacated and case remanded with directions.

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