author: JUSTICE HOPF

text:
    HAROLD GRIFFIN et al., Plaintiffs-Appellees, v. THE CITY OF NORTH CHICAGO, Defendant-Appellant.
    Second District
    No. 82—50
    Opinion filed February 2, 1983.
    Opinion modified on denial of rehearing March 10, 1983.

      William G. Rosing, Stephen G. Applehans, and Jeffery C. Ericksen, all of Rosing, Carlson & Magee, Ltd., of Waukegan, for appellant.
    Donald T. Morrison and Joseph T. Morrison, both of Waukegan, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, City of North Chicago, appeals from the declaratory judgment entered on December 23, 1981, in the circuit court of Lake County in favor of plaintiffs, Harold Griffin and Lake County Forest Preserve District (the Forest Preserve). On appeal, defendant argues that section 6 of “An Act to provide for the creation and management of forest preserve districts in counties having a population of less than 3,000,000” (Ill. Rev. Stat. 1981, ch. 96V2, par. 6309) (the Act) prohibits plaintiffs from consummating their real estate sales contract, executed on February 20, 1981, without defendant’s consent. The trial court held the Act’s consent requirement inapplicable to plaintiffs’ purchase agreement, finding that to apply the consent requirement would give it a retrospective application.

The Forest Preserve approved a resolution on October 10, 1975, designating certain parcels of land in Lake County for acquisition pursuant to a study finding the land suitable for forest preserve, flood control and related purposes. This resolution called for the appraisal, survey, title search and the making of an offer to purchase this property, the amount of compensation and terms of purchase “subject to the final approval of [the] Board.” It further provided that should the Forest Preserve and individual property owners be unable to agree upon a purchase price, condemnation proceedings should be initiated.

Griffin owns a single-family residence located on a parcel of land situated entirely in the city of North Chicago and designated for acquisition by the Forest Preserve pursuant to its 1975 resolution. After negotiations, Griffin and the Forest Preserve entered into a real estate sales contract on February 20, 1981, for the purchase of this property. The contract included a rider which subjected the contract to the Forest Preserve obtaining “the concurrence of the City of North Chicago, as required by law.”

Apparently this paragraph’s presence results from an amendment, effective January 1, 1981, to the Act. The Act grants forest preserve districts the power to acquire land in order to fulfill the purposes for which the districts were established. The amendment provides in pertinent part, however:

“No district with a population less than 600,000 shall have the power to purchase or condemn property within a municipality without the concurrence of the governing body of the municipality ***.” Ill. Rev. Stat. 1981, ch. 96%, par. 6309.

The city of North Chicago refused to consent to the proposed sale. Thereupon, the Forest Preserve and Griffin filed a complaint for declaratory relief asking that the court declare the amendment to be both inapplicable to their sales contract and unconstitutional. On December 23, 1981, the court held the amendment inapplicable to plaintiffs’ real estate contract. To hold it applicable, the court said, would give it a retrospective effect. In the court’s judgment order, it made, inter alia, the following findings:

(1) The Forest Preserve has been engaged in the acquisition of land for the “Green Belt Forest Preserve” since 1969;
(2) The Forest Preserve designated the land for this preserve by resolution, no later than May 24,1976;
(3) The Forest Preserve delays instituting eminent domain proceedings on single-family residences designated for acquisition until that land is required for the preserve;
(4) Griffin owns land designated for acquisition and has voluntarily agreed to sell this land to the Forest Preserve;
(5) The City of North Chicago refused to consent to the sale; and
(6) To apply the amendment to the Act to this property “would be to give the statute a retrospective application which was not intended by the legislature, and would be arbitrary, unreasonable, and unjust.”

The court declined to pass on plaintiffs’ constitutional claims. We note that the above order did not specify that a contract had been executed on February 20,1981.

On appeal, the city contends that the trial court erred in finding that the amendment to the Act (Ill. Rev. Stat. 1981, eh. 96V2, par. 6309) was inapplicable to the sale to which they refused to consent. We agree.

Both Griffin and the Forest Preserve argue that the General Assembly did not intend to give the amendment the retroactive effect that they contend applying the amendment to their real estate contract would give it. They argue, and defendant does not dispute, that retroactive application of legislation is not favored and, as a general rule, statutes are construed to operate prospectively unless the legislative intent that they be given retroactive application clearly appears from the express language of the statute or by necessary implication. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4; Board of Review v. Property Tax Appeal Board (1979), 69 Ill. App. 3d 265, 387 N.E.2d 394.) The parties further agree that the legislature did not intend the retroactive application of the amendment.

The source of the parties’ disagreement is whether application of the amendment would in fact be retroactive. Plaintiffs argue that they did not execute the real estate sales contract until after the effective date of the amendment, and the earlier resolution to acquire Griffin’s land and subsequent negotiations are the relevant transactions in determining the retroactive effect of the amendment. The city, on the other hand, focuses upon the execution date of the contract as the relevant date to determine whether the amendment’s application to the contract would be retroactive.

A retroactive or retrospective law has been defined as one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4.) The legislature cannot pass a retrospective law impairing the obligation of a contract nor deprive a party of a vested right. (People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367, 373, 21 N.E.2d 318.) A vested right is more than a mere expectation based upon an anticipated continuance of existing law; it must have become a title, legal or equitable, to the present or future enjoyment of property. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 188, 193 N.E.2d 844; People ex rel. Eitel v. Lindheimer.) If an existing law changes by amendment or repeal prior to the vesting of a right, no cause to object arises. A statute is not retroactive merely because it relates to antecedent events or draws upon antecedent facts for its operation. United States Steel Credit Union v. Knight; Weisberg v. Byrne (1981), 92 Ill. App. 3d 780, 784, 416 N.E.2d 298.

The Forest Preserve claims that it had a vested right in the land prior to the enactment of the amendment. Foremost in its contentions, and apparently accepted by the trial court, the Forest Preserve asserts it acquired a vested right in Griffin’s land by virtue of its acquisition plan, beginning with its 1969 resolution to create the “Green Belt Forest Preserve,” its subsequent expenditures in excess of $3,800,000 to acquire other land, and its 1975 resolution to acquire Griffin's land, an acquisition delayed only by its policy not to acquire the land until necessary. Thus, according to the Forest Preserve, the contract date represents only the culmination of its plan and is not the crucial date to determine whether application of the statute would be retroactive.

Generally, the adoption of a resolution or the entering into negotiations to acquire land does not pass any interest in that land. (See City of Chicago v. Loitz (1975), 61 Ill. 2d 92, 329 N.E.2d 208; Chicago Housing Authority v. Lamar (1961), 21 Ill. 2d 362, 172 N.E.2d 790; Eckhoff v. Forest Preserve District (1941), 377 Ill. 208, 36 N.E.2d 245.) In Eckhoff, plaintiffs sued for alleged damages suffered by defendant’s delay in exercising its eminent domain power over plaintiffs’ land after defendant adopted recommendations to create a forest preserve containing a portion of plaintiffs’ land. In denying damages, the court explained that “[t]he fact that at some future time a municipal corporation, with power of eminent domain, may require the land of a private owner, is one of the conditions on which the owner holds land in this State. Entering into negotiations for the purchase, and filing of a petition to condemn, vests no interest in land.” (377 Ill. 208, 214, 36 N.E.2d 245.) The court further stated that the “taking of land by eminent domain” is not accomplished by passing resolutions or ordinances, nor by negotiating with the owner for the purchase of it or by serving notice to the owners that land may be required for public purposes. (377 Ill. 208, 214, 36 N.E.2d 245.) Similarly, in Lamar, the court held that defendant had no right to alleged damages arising from the plaintiff’s notifying the defendant of its plan to acquire the defendant’s property. The court found that the plaintiff acquired no interest in defendant’s land by entering into negotiations or by filing a petition to condemn. Chicago Housing Authority v. Lamar (1961), 21 Ill. 2d 362, 366, 172 N.E.2d 790.

Finally, in City of Chicago v. Loitz (1975), 61 Ill. 2d 92, 329 N.E.2d 208, the court affirmed the trial court’s dismissal of defendant’s counterclaim for damages resulting from the city’s cancellation of a project which would have required the purchase of defendant’s land. Defendant had orally agreed to sell the land to plaintiff and argued for damages resulting from the cancellation of the proposed deal. The court found that “[t]he general rule followed in Illinois and most other jurisdictions is that mere planning or plotting in anticipation of a public improvement does not constitute a ‘taking.’ ” 61 Ill. 2d 92, 97, 329 N.E.2d 208.

Since no taking occurs until the execution of a purchase agreement or conclusion of eminent domain proceedings, no rights to property are transferred until that date. In the instant case, the Forest Preserve’s 1975 resolution was one of intent only; consequently, it acquired no rights in Griffin’s land until after the contract had been executed. For the same reasons, Griffin had no vested right in the sale of the land to the Forest Preserve.

The Forest Preserve further argues that it has a vested right in the development of the Green Belt Forest Preserve and that if it is prohibited from completing the development, the value of its past action would be diminished. However, it is well established that powers conferred upon municipal corporations of all kinds are not vested rights as against the State and a legislature has absolute power to change, modify or destroy them at pleasure. (McQuillin, Municipal Corporations sec. 4.05, at 14 (3d ed. 1979).) The General Assembly may withdraw from a municipal corporation a power it has previously given and confer it upon another. (People ex rel. Greening v. Bartholf (1944), 388 Ill. 445, 463, 58 N.E.2d 172.) The General Assembly, in the instant case, modified the Forest Preserve’s power to condemn or purchase property in certain situations. In doing so, it did not violate any vested rights of the Forest Preserve to complete the Green Belt Forest Preserve because the Forest Preserve’s right to complete it was contingent upon the continuation of the powers granted by the General Assembly.

Nothing in the statute indicates a legislative intent that the statute should not apply to land acquisitions in which negotiations have been previously initiated. In construing a statute, the intent of the legislature should be ascertained and given effect. (Illinois National Bank v. Chegin (1966), 35 Ill. 2d 375, 378, 220 N.E.2d 226; Droste v. Kerner (1966), 34 Ill. 2d 495, 503, 217 N.E.2d 73, cert. denied (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612.) All sections of the statute should be construed together in light of the statute’s general purpose and plans, the evil intended to be remedied, and the objective to be attained. (Scofield v. Board of Education (1952), 411 Ill. 11, 15, 103 N.E.2d 640.) Legislative intent is ascertained primarily from a consideration of the statute’s language. (Droste v. Kerner.) Words employed in a statute should be given their plain, or-, dinary, or commonly accepted meaning, unless to do so would defeat the legislative intent. Droste v. Kerner (1966), 34 Ill. 2d 495, 503, 217 N.E.2d 73.

The language of the Act clearly reveals the intent of the legislature that the consent requirement applies to any sale or condemnation of property occurring after January 1, 1980. In fact, the statute distinguishes between situations in which a municipality has received notice of a forest preserve district’s intent to acquire land and the actual acquiring of land, where it prohibits a municipality from annexing that land to defeat its acquisition. (See Ill. Rev. Stat. 1981, ch. 961/2, par. 6309.) The statute further provides that where a district has begun negotiations for acquisition of land adjacent to a municipality, acquisition should be deferred for six months. These distinctions thus indicate the legislative intent that the amendment applies to sales or condemnations of land occurring after the effective date of the amendment. Since, in the instant case, Griffin did not agree to sell his land until he executed the real estate contract, which occurred after the effective date of the amendment, the Act requires that the proposed sale receive the consent of the city of North Chicago prior to its consummation. Therefore, we believe the trial court must be reversed.

The trial court did not reach the issue of the constitutionality of the Act. We do not either. “Where no constitutional question was presented to or passed upon by the trial court and the only question is the interpretation of a statute, a constitutional question is not present on appeal.” Department of Public Works & Buildings v. Schon (1969), 42 Ill. 2d 537, 538, 250 N.E.2d 135; see also Hah v. Stackler (1978), 66 Ill. App. 3d 947, 954, 383 N.E.2d 1264.

For the reasons stated the judgment of the circuit court of Lake County is reversed and remanded for further proceedings consistent with this opinion..

Reversed and remanded.

NASH and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author:
PRESIDING JUSTICE BARRY
      JUSTICE HEIPLE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v LORETTA A. JACKSON, Defendant-Appellant.
    Third District
    No. 82—235
    Opinion filed March 4, 1983.
    Rehearing denied March 16, 1983.

      HEIPLE, J., dissenting.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Loretta A. Jackson, was convicted in a bench trial of theft of property valued in excess of $150 and was sentenced to a 30-month term of probation. A condition of the defendant’s probation was that she serve 26 weekends in the county jail.

The defendant appeals both her conviction and her sentence. She contends on appeal that her guilt was not proven beyond a reasonable doubt. In the alternative, the defendant contends that her sentence is improper due to a statutory change in the offense of which she was convicted. In light of the issues raised, a discussion of the facts is necessary.

The witness for the State, Imogene Wentz, was security manager for the Carson Pirie Scott & Company (hereafter Carsons) retail store in the Northwoods Mall in Peoria, Illinois. She was security manager on August 25, 1981, when the defendant allegedly removed merchandise belonging to Carsons from the store premises without purchasing the merchandise. The items taken by the defendant included five pairs of jeans and five ladies’ tops.

Ms. Wentz testified that she observed the defendant take the escalator, alone, to the ready-to-wear department on Carsons’ upper level. She watched the defendant, who was carrying a satchel type sack, go behind a rack of clothing. From a distance of four feet, Wentz observed five ladies’ tops coming off the hangers on the rack. The defendant was visible to Wentz only from the chest up. When the defendant moved from behind the rack, the hangers were empty, the tops were not in sight, and the defendant’s bag appeared fuller.

Ms. Wentz testified further that the defendant proceeded next to the sportswear area. Wentz observed the defendant take five pairs of jeans off of their hangers and walk, with the jeans in her hands, behind a rack of clothing. Wentz saw the defendant moving behind the rack and heard sounds like the rattling of a sack. When the defendant left the jeans area, her sack appeared fuller. The defendant at no time approached a cash register.

Ms. Wentz observed the defendant leave the store and approach an escalator in the mall area. She stopped the defendant and identified herself as a Carsons’ security employee. The defendant’s daughter, Julie Jackson, joined the defendant and they accompanied Wentz to the security office. Wentz then opened the defendant’s bag and found inside it five tops and five pairs of jeans. The defendant’s daughter volunteered that she had taken the merchandise. Ms. Wentz’ testimony on cross-examination as to how many bags the defendant carried was inconsistent with her direct testimony and her statements before the grand jury.

The defendant testified in her own behalf that she was approached by her daughter, Julie Jackson, as she reached the top of the escalator on Carsons’ upper level. Her daughter gave the defendant a bag, said she would be “right back,” and left the store. The defendant looked at some articles and then looked into the bag given to her by her daughter. She saw that the tags had not been removed from the items in the bag. The defendant left the store and called to her daughter, who returned to the defendant. As her daughter started back to her, the defendant was approached by Carsons’ security people. The defendant and her daughter followed Wentz to the security office, where her daughter admitted that she, and not the defendant, had taken the merchandise.

Julie Jackson, the defendant’s daughter, testified that she and a friend, Mary Beth Joos, accompanied the defendant to the Northwoods Mall. She and Mary Beth left the defendant and eventually entered the Carsons’ store. There Julie Jackson took five pairs of jeans from various departments and five tops from the ladies’ department. She placed the items in a bag. When she saw her mother at the escalator, Julie Jackson approached the defendant, gave the defendant her bag of merchandise, and told the defendant that she was going to look for her friend out in the mall. She was sitting in the mall area when she saw the defendant leave the store. When the security person approached the defendant, Julie returned to her mother. She accompanied the defendant to the security office and there told Ms. Wentz that she had taken the items.

Mary Beth Joos, Julie Jackson’s friend, testified that she, Julie and the defendant went to the Northwoods Mall. She and Julie separated from the defendant while in the mall. She accompanied Julie to the Carsons’ store, but when Julie began to put merchandise into her bag without paying for it, she became frightened and left the store.

Five ladies’ tops and five pairs of jeans were introduced into evidence as those taken from Carson Pirie Scott & Company by the defendant. Their value was $251.98.

The defendant argues that the State failed to prove her guilt beyond a reasonable doubt because the testimony of Imogene Wentz was not credible. However, in a bench trial it is the function of the trial court to determine the credibility of witnesses. (People v. Walcher (1969), 42 Ill. 2d 159, 246 N.E.2d 256.) A court of review will not set aside a verdict of guilty unless the evidence is so unreasonable or improbable as to cause doubt as to the guilt of the accused. People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.

In the case at bar, the trier of fact was presented with two conflicting sets of testimony. The trier of fact found the testimony of Imogene Wentz, the witness for the State, to be credible. After reviewing the record, we find that the testimony of Ms. Wentz is neither so improbable or unreasonable as to justify a reversal of the trial court. The defendant’s conviction is therefore affirmed.

In the alternative, the defendant asserts that her sentence should be vacated because the statutory penalty for theft was favorably changed prior to her trial. The defendant was charged with theft on September 1, 1981, under section 16 — 1 of the Criminal Code of 1961, which provided that theft of property exceeding $150 is a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1), (e)(3).) Effective January 1, 1982, the theft of property not exceeding $300 is a Class A misdemeanor. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(1).) On April 2, 1982, the defendant was sentenced to the maximum term of probation for a Class 3 felony.

The defendant argues that the change in the theft statute is a mitigation in the penalty for a conviction of theft. Therefore, she should have been given an election as to which statute she wished to be sentenced under, as provided in section 4 of “An Act to revise the law in relation to the construction of the statutes.” (Ill. Rev. Stat. 1979, ch. 1, par. 1103.) Section 4 provides that “If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.”

In Illinois, when the duration of punishment depends upon the value of the property stolen, the value of the property is a material element of the offense. (People v. Harden (1969), 42 Ill. 2d 301, 247 N.E.2d 404.) The defendant was convicted of theft of property exceeding $150. At the time she was charged, the value element of her charge made the offense a felony. The modification of the statute has altered the classification of offenses whose value element is not less than $150 and not more than $300 from a felony to a misdemeanor.

An analogous situation arose in People v. Poll (1979), 74 Ill. App. 3d 534, 393 N.E.2d 732, affd in part, vacated in part on other grounds (1980), 81 Ill. 2d 286, 408 N.E.2d 212. Poll was charged with armed violence, sections 8 — 4 and 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4, 33A — 2). At that time, armed violence included armed violations of the aggravated assault statute, section 12 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 2). Aggravated assault, which was the basis for Poll’s arrest for armed violence, was a misdemeanor while armed violence was a felony. Prior to Poll’s sentencing, the armed violence statute was modified to eliminate misdemeanors, including aggravated assault. Poll contended on appeal that because aggravated assault was no longer a basis for a charge of armed violence, his conviction and sentence must be reduced from the felony armed violence to the misdemeanor aggravated assault. The court rejected this argument.

The defendant in the instant case argues that because theft of property valued at more than $150, but not more than $300, is no longer a basis for a felony conviction for theft, that the conviction must be reduced from a felony theft to misdemeanor theft. Consistent with the decision in Poll, we reject the defendant’s argument. It is an element of the offense which has been modified and which has resulted in a reclassification of the offense. The substantive law of theft was changed, not merely the sentencing provisions. (People v. Primmer (1983), 111 Ill. App. 3d 1046; People v. Jimerson (1982), 111 Ill. App. 3d 82; see also People v. Gibson (1976), 41 Ill. App. 3d 209, 354 N.E.2d 71: contra, People v. Osborn (1983), 111 Ill. App. 3d 1078.) There has been no mitigation in the penalty or punishment as required by section 4 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1979, ch. 1, par. 1103).

For the above reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

I concur with that portion of the majority opinion which affirms the defendant’s conviction for theft. However, I dissent from that portion of the opinion which affirms the sentence. The sentence imposed should be vacated and the cause remanded for resentencing.

Defendant, Loretta A. Jackson, shoplifted clothing from the Carson Pirie Scott & Company store on August 25, 1981. The items taken had a fair market value of $251.98. Her trial took place in February of 1982. She was convicted and subsequently sentenced to a 30-month term of probation with further condition that she serve 26 weekends in the county jail. The 30-month term of probation was the maximum period of probation for a Class 3 felony.

On January 1, 1982, the demarcation line between misdemeanor theft and felony theft was increased from $150 to $300. Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1.

The law further provides that when penalties are mitigated by a new law, the defendant is entitled to claim the benefit of the lesser penalty. Ill. Rev. Stat. 1981, ch. 1, par. 1103.

The change in the law and its application to this case is the basis for my dissent.

The trial judge based his sentence on the law applicable on the date of the offense. Based on the amount taken, which exceeded $150, the law made the offense a Class 3 felony punishable by imprisonment for a determinate term of not less than two years and not more than five years. The maximum term of probation allowable for a Class 3 felony is 30 months. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—2.

Prior to January 1, 1982, thefts not exceeding $150 were Class A misdemeanors punishable with imprisonment of less than one year or probation of not to exceed one year. After January 1, 1982, thefts not exceeding $300 were so punishable.

The judge was aware of the change in the law but did not apply the new law since he did not believe that it was applicable.

The People argue that the judge was correct since the change in the law related to a change in an element of the offense rather than the penalty. This position is one of pure semantics. Though endorsed by a majority of this court, it cannot survive analysis.

In the interest of clear thought, the first step is to discard the use of labels. In the instant case, this means setting aside the labels of Class A misdemeanor and Class 3 felony. That is to say, let us look to the thing itself, the facts of the case. Regardless of label, a rose is a rose.

On August 25, 1981, the defendant stole property valued at $251.98. The then applicable law permitted imposition of a determinate sentence with a range of two to five years or of probation up to 30 months. In 1982, however, when the defendant was tried and sentenced, the penalty for theft of property valued at $251.98 was imprisonment for any term less than one year or probation not to exceed one year.

It is clear that for identical conduct, there is a material difference in exposure to sentencing under the old and the new law. Under the old law, the defendant was exposed to a maximum sentence of five years’ imprisonment or 30 months’ probation; under the new law, to imprisonment of less than one year or probation not to exceed one year.

As previously noted, the law provides that a defendant is entitled to claim the benefits of changes in the law which mitigate penalties. Since it is clear that the penalty was mitigated for the described conduct, it should be equally clear that the defendant was entitled to elect sentencing under the new law. She was not afforded that right. The 30-month period of probation that was imposed substantially exceed the maximum period of one year probation that was allowable under the new law.

Accordingly, the sentence in this case should be vacated and the cause should be remanded for resentencing as a Class A misdemeanor.


author: JUSTICE LORENZ

text:
    NICK L. MLADE et al., Plaintiffs-Appellants, v. MORGAN M. FINLEY, Clerk of the Circuit Court of Cook County, et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—3010
    Opinion filed February 10, 1983.

      Charles R. Winkler, Ltd., of North Riverside (Harry G. Fins, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Robert S. Vihon, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs Nick and John Mlade filed a class action against the county of Cook, and various county officials, seeking (1) a declaration that several provisions of the clerks-of-courts act (Ill. Rev. Stat. 1979, ch. 25, par. 1 et seq.) are unconstitutional, and (2) recovery of the fees paid thereunder. The trial court granted the county’s motion to strike the complaint and dismiss the lawsuit, and did not rule on plaintiffs’ motion to certify the case as a class action.

According to plaintiffs, section 27.2 of the clerks-of-courts act (v. Rev. Stat. 1979, ch. 25, par. 27.2), which establishes the fees that must be paid by litigants to the clerk of the circuit court in counties having a population of more than 1,000,000 people, is invalid for the following reasons:

(1) The statute violates the equal protection and due process clauses of the Federal and 1970 Illinois constitutions (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2), as well as the Illinois provisions which prohibit “special legislation” “when a general law is or can be made applicable” (Ill. Const. 1970, art. IV, sec. 13), and which require that classifications created by revenue laws must be reasonable, with each class “taxed uniformly” (Ill. Const. 1970, art. IX, sec. 2);

(2) The “fees” established by section 27.2 are actually taxes, and they therefore constitute either an income tax imposed at a graduated rate, or an ad valorem personal property tax, both of which are forbidden by sections 3(a) and 5(c) of article IX of the 1970 Illinois Constitution;

(3) These statutory charges violate the constitutional provisions which require payment of just compensation when private property is taken for public use under the power of eminent domain. See Ill. Const. 1970, art. I, sec. 15; U.S. Const., amends. V and XIV, sec. 1; Chicago, Burlington & Quincy R.R. Co. v. City of Chicago (1897), 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581.

Although plaintiffs attack the validity of a number of the subsections contained in section 27.2 of the clerks of courts act, their complaint only alleges that they paid fees under, and were at most injured by operation of, section 27.2(1), which establishes the filing fee for complaints in civil actions, and section 27.2(15), which establishes fees for probate proceedings. See Ill. Rev. Stat. 1979, eh. 25, par. 27.2(1), (15).

Specifically, the complaint alleges that Nick Mlade paid a $40 fee (under section 27.2(1)) for filing a civil complaint, and John Mlade paid a $75 fee (under section 272(15Xa)) for filing a petition seeking appointment as representative of a decedent’s estate. A threshold question, therefore, is whether plaintiffs have standing to question the constitutional validity of other portions of the clerks-of-courts act.

“It is well established that a court will not entertain a challenge to the constitutionality of a statute by a party who is not affected by the statute or aggrieved by its operation.” (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 550; accord, Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 510-11; Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 408.) We accordingly hold that plaintiffs only have standing to challenge the validity of subsections (1) and (15Xa) of section 27.2, and we will not consider arguments which concern the constitutionality of other subsections.

Initially plaintiffs argue that the trial court committed reversible error by ruling that, as a matter of law, they could not prove any set of facts which would entitle them to the judicial relief they sought. (See Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305.) However, when the trial court strikes a complaint and the plaintiff does not ask for leave to amend, this is considered an election “to stand by his complaint” (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 109), and if the lawsuit is dismissed the cause of action “must stand or fall upon [the] contents” of the stricken pleading. Krachock v. Department of Revenue (1949), 403 Ill. 148, 153.

In the present case, although the trial court struck the complaint and dismissed the lawsuit, plaintiffs never asked for leave to file an amended complaint. As a result, their cause of action stands or falls based on the sufficiency of the stricken pleading.

The purpose of pleadings is to inform the court, and the other litigants, of the legal theories which are being relied upon, and to give notice of the factual issues which are to be tried. (Yeates v. Daily (1958), 13 Ill. 2d 510, 514.) And to achieve justice between the litigants, pleadings must be liberally construed. (Ill. Rev. Stat. 1979, ch. 110, par. 33(3), now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2— 603(c).) Nevertheless, Illinois does not permit so-called “notice pleading” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426-27), and allegations of fact, rather than mere legal conclusions, are necessary to state a cause of action under Illinois law. See Ill. Rev. Stat. 1979, ch. 110, par. 31, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2— 601; People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308.

“To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed.” People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308.

As a result of the fact-pleading requirement, a court which is examining the legal sufficiency of a complaint must assume the truth of “all facts properly pleaded” (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96), but it must also ignore conclusions of law which are “unsupported by allegations of specific facts upon which such conclusions rest” (Pierce v. Carpentier (1960), 20 Ill. 2d 526, 531).

Applying the principles stated in Fahner v. Carriage Way West, Inc. to the present case, we first examine the substantive law upon which plaintiffs’ complaint is based. Under the 1970 Illinois Constitution, the General Assembly has “the exclusive power to raise revenue by law except as limited or otherwise provided in this Constitution.” (Ill. Const. 1970, art. IX, sec. 1.) But despite this broad grant of authority, plaintiffs argue that section 27.2 of the clerks-of-courts act violates the equal protection and due process clauses of the Federal and 1970 Illinois constitutions (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2), as well as the Illinois provisions which prohibit “special legislation” “when a general law is or can be made applicable” (Ill. Const. 1970, art. IV, sec. 13), and which require that classifications created by revenue laws must be reasonable, with each class “taxed uniformly.” Ill. Const. 1970, art. IX, sec. 2.

At the start of our discussion of these constitutional provisions, we note that clauses which have been incorporated in the 1970 Constitution unchanged from the 1870 Constitution will generally receive a consistent interpretation. See Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 565; Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109.

In the context of revenue laws, the equal protection clauses and the special legislation provision merely require that there be a reasonable basis for the statutory classifications enacted by the legislature. (Thorpe v. Mahin (1969), 43 Ill. 2d 36, 45-46; see also Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137-38.) Similarly, the same analysis is used when a revenue law is attacked under the due process clauses, and the statute will be upheld if there is a reasonable basis for the legislative classifications. (See Thorpe v. Mahin (1969), 43 Ill. 2d 36, 45.) And if each member of a statutory classification is treated uniformly, section 2 of article IX of the 1970 Illinois Constitution is satisfied if the classifications are reasonable. Caterpillar Tractor Co. v. Department of Revenue (1970), 47 Ill. 2d 278, 284.

Briefly stated, the pertinent portions of section 27.2 of the clerks-of-courts act are valid under the due process, equal protection, special legislation, and uniform taxation provisions if there is a reasonable basis for the classifications created by this statute. See Williams v. City of Chicago (1977), 66 Ill. 2d 423, 432; Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 312; Grenier & Co. v. Stevenson (1969), 42 Ill. 2d 289, 291-92.

Additionally, with respect to revenue laws “even more than in other fields, legislatures possess the greatest freedom in classification.” (Doolin v. Korshak (1968), 39 Ill. 2d 521, 528, quoting Madden v. Kentucky (1940), 309 U.S. 83, 88, 84 L. Ed. 590, 593, 60 S. Ct. 406, 408.) Furthermore, not only is the statute valid if the legislative classifications are supported by a reasonable basis, but a presumption of constitutionality is applied to revenue laws, and this presumption “may be overcome only by a clear showing that [the statute] is arbitrary and unsupportable by any set of facts.” (People ex rel. Kutner v. Cullerton (1974), 58 Ill. 2d 266, 273.) Therefore “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Doolin v. Korshak (1968), 39 Ill. 2d 521, 528, quoting Madden v. Kentucky (1940), 309 U.S. 83, 88, 84 L. Ed. 590, 593, 60 S. Ct. 406, 408; accord, Berry v. Costello (1976), 62 Ill. 2d 342, 345.

“The reasons justifying the classification, moreover, need not appear on the face of the statute, and the classification must be upheld if any state of facts reasonably can be conceived that would sustain it. [Citations.] The burden therefore rests on one who assails the statute to negate the existence of such facts.” Department of Revenue v. Warren Petroleum Corp. (1954), 2 Ill. 2d 483, 490.

Plaintiffs nevertheless assert that we should not apply the presumption of constitutionality to section 27.2 of the clerks-of-courts act because, in Cook County v. Fairbank (1906), 222 Ill. 578, the supreme court held that a filing fee based on the value of a probate estate was invalid under a provision in the 1870 Constitution which limited such fees to “a reasonable compensation for services actually rendered.” (Ill. Const. 1870, art. X, sec. 12.) Plaintiffs’ theory is that once a statute has been ruled unconstitutional, the presumption of validity should not be applied to similar provisions which are subsequently enacted.

A similar situation arose in Zelney v. Murphy (1944), 387 Ill. 492, where the supreme court considered cases in which it had taken a more active role in striking down statutes. As the court explained in Zelney, the prior cases (which did not use the presumption of constitutionality courts now use when considering social-welfare and economic legislation), “could not be controlling as to the statute under consideration here and especially in view of the growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare.” (387 Ill. 492, 498.) In other words, courts simply began to give more deference to legislative judgments in the fields of social-welfare and economic legislation. See generally Corwin, Introduction to The Constitution of the United States, Analysis and Interpretation, Sen. Doc. 92 — 82, 92d Cong. 2d Sess., at XXVIII to XXXI (1973).

Although in Cook County v. Fairbank the supreme court invalidated a probate filing fee provision which is somewhat similar to the one under consideration here, the court did not apply the presumption of validity which is now required when examining the constitutionality of such laws, and Fairbank is not controlling.

Plaintiffs also argue that it was unreasonable for the General Assembly to provide different fee schedules for counties with populations of less and more than 1,000,000 inhabitants. (Compare Ill. Rev. Stat. 1979, ch. 25, pars. 27.1, 27.2.) We initially note that the $40 filing fee which Nick Mlade allegedly paid to the clerk of the circuit court of Cook County, under section 27.2(1), is the same amount he would have paid under section 27.1(d)(1) if he had filed his complaint in a county with a population of less than 1,000,000 inhabitants. Therefore Nick has not been treated any differently than he would have been if he had filed his action in a smaller county. However, John Mlade allegedly paid a $75 filing fee under section 27.2(15)(a), although the fee would have been $50 if he had filed the same probate petition in a county subject to section 27.1(j)(l).

The complaint alleges, and plaintiffs argue on appeal, that it was not reasonable for the legislature to distinguish between counties of less and more than 1,000,000 inhabitants when it enacted these fee provisions. However, in Hunt v. Rosenbaum (1934), 355 Ill. 504, 510, the supreme court expressly recognized that the great difference in the size of the population of Cook County, in relation to all other Illinois counties, provides a reasonable basis for requiring a larger jury fee in Cook than in smaller counties. See also Fried v. Danaher (1970), 46 Ill. 2d 475, 481 (holding that Hunt v. Rosenbaum “is equally applicable today”).

The Hunt case is also applicable to the other fees established by the clerks-of-courts act, and we conclude that there is a reasonable basis for the legislature’s decision to classify counties according to whether they have a population of less or more than 1,000,000 inhabitants.

Turning from an analysis of the applicable legal principles to the allegations of plaintiffs’ complaint, we find that their pleading contains no factual allegations which could, if proven, negate the presumed reasonable basis supporting the population classification created by sections 27.1 and 27.2. Instead, the complaint, and plaintiffs’ arguments on appeal, consist solely of conclusions of law. But plaintiffs’ “ ‘burden is not sustained by making allegations which are merely the general conclusions of law or fact ***. Facts relied upon to rebut the presumption of constitutionality must be specifically set forth ***. A motion to dismiss, like a demurrer, admits only facts well pleaded.’ ” Heyman v. Mahin (1971), 49 Ill. 2d 284, 291, quoting Pacific States Box & Basket Co. v. White (1935), 296 U.S. 176, 185, 80 L. Ed. 138, 146, 56 S. Ct. 159, 163.

In addition to attacking the population classifications created by sections 27.1 and 27.2, plaintiffs contend that it was unreasonable for the legislature to provide, in section 27.2(15Xa), that the amount of the filing fee for probate petitions should be based on the value of the particular estate. Under this subsection, the filing fee is $75 if the value of the decedent’s estate is more than $5,000, while the fee is only $10 for a smaller estate. Ill. Rev. Stat. 1979, ch. 25, par. 27.2(15)(a), (15Xa)(l).

Essentially plaintiffs argue that there is no rational reason for charging a $75 filing fee for an estate valued at $5,001, but only requiring a $10 fee for an estate valued at $4,999.

“ ‘Yet, this is the type of distinction which the law is often called upon to make, it is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt ***.’ ” S. Buchsbaum & Co. v. Gordon (1945), 389 Ill. 493, 510-11, quoting Carmichael v. Southern Coal & Coke Co. (1937), 301 U.S. 495, 510-11, 81 L. Ed. 1245, 1253-54, 57 S. Ct. 868, 873.

Moreover, at oral argument plaintiffs conceded that it was reasonable for the legislature to conclude that the clerk’s office will have to perform more work for a large estate than a small one. And still further, neither the complaint nor plaintiffs’ briefs refer to facts which could, if proven, rebut the presumption that the legislature acted reasonably in establishing a larger filing fee for estates valued at more than $5,000.

The next issue is whether the $75 probate filing fee established by section 27.2(15)(a) of the clerks-of-courts act is invalid under sections 3(a) and 5(c) of article IX of the 1970 Illinois Constitution. According to plaintiffs, this charge, which the statute designates a “fee,” actually constitutes a tax because, purportedly, it provides more revenue than the value of the services given in return for the “fee.” Based on this conclusion, plaintiffs also conclude that this purported “tax” is invalid under either the constitutional provision which prohibits graduated-rate income taxes (Ill. Const. 1970, art. IX, sec. 3(a)) or the provision which forbids ad valorem personal property taxes (Ill. Const. 1970, art. IX, sec. 5(c)). .

“[A] fee is compensation for particular services.” (People ex rel. Olson v. Atchison, Topeka & Santa Fe Ry. Co. (1945), 389 Ill. 204, 207.) “ ‘Fees’ are a reward or wages given to one for the execution of his office, the term being used synonymously with percentage or commission.” People ex rel. City of Peoria v. Weston (1934), 358 Ill. 610, 615.

Although the distinction between fees and taxes is not always observed (71 Am. Jur. 2d State & Local Taxation sec. 15, at 352 (1973)),

“A tax is imposed upon the party paying it by mandate of the public authorities, without his being consulted in regard to its necessity, or having any option as to its payment. The amount is not determined by any reference to the service which he receives from the government, but by his ability to pay, based on property or income. On the other hand, a fee is always voluntary, in the sense that the party who pays it originally has, of his own volition, asked a public officer to perform certain services for him, which presumably bestow upon him a benefit not shared by other members of society.” Stewart v. Verde River Irrigation & Power District (1937), 49 Ariz. 531, 544-45, 68 P.2d 329, 334-35; see also National Cable Television Association v. United States (1974), 415 U.S. 336, 340-41, 39 L. Ed. 2d 370, 375, 94 S. Ct. 1146, 1149.

We need not decide in the present case whether, under Illinois law, a “fee” is a “tax” if it generates more revenue than the cost of the services given in return for the fee. We also need not decide exactly what services should be considered as being given in return for the fee in question. The underlying premise in plaintiffs’ argument is the assertion that the fee established by section 27.2(15)(a) of the clerks-of-courts act produces a government profit. But neither the complaint nor plaintiffs’ briefs refer to any facts which could, if proven, establish that this statutory fee generates more revenue than the cost of the services rendered by the clerk’s office, or by the circuit court itself.

Instead, relying on Cook County v. Fairbank (1906), 222 Ill. 578, and similar cases from other jurisdictions, plaintiffs conclude we should hold, as a matter of law, that section 27.2(15)(a) imposes a tax rather than a fee. But as we noted earlier, the Fairbank court invalidated a “fee” without applying the presumption of validity which the supreme court now requires.

We recognize that in early cases which considered the validity of graduated probate fees, courts often concluded that “there is no reasonable relationship between the size of an estate and the amount of services necessarily required in its administration.” (Annot., Validity of Statutes Imposing a Graduated Probate Fee Based Upon Value of Estate 76 A.L.R.3d 1117, 1120 (1977).) However, as we noted earlier, plaintiffs conceded at oral argument that a large estate will generally require more services than a small estate, and we agree with the modern cases which have held that “a statute fixing a graduated schedule of probate charges [is] presumably valid.” (Annot., 76 A.L.R.3d 1117, 1120.) “[S]uch an approach is not only more realistic in point of fact, but *** is also more nearly consonant with the generally recognized presumption of the validity of legislative action.” An-not., 76 A.L.R.3d 1117, 1120.

Although the statute attacked in the present case merely sets a higher fee for estates over $5,000, rather than establishing a graduated rate, the same principles are applicable, and we must presume that the statutory charge is a valid fee, not a tax.

Plaintiffs make two arguments which must be briefly mentioned with respect to this issue. First plaintiffs point out that the county’s motion to strike and dismiss states, in part, that the fees imposed by section 27.2 are “tantamount to a tax on litigation.” According to plaintiffs, this constitutes a binding judicial admission that the statutory charges constitute a tax rather than a fee.

Despite the distinction between “taxes” and “fees,” both are used by the government to raise revenue, and it was accurate for the county to state that the charges in question are “tantamount to a tax on litigation.” (Emphasis added.) We do not find that this “admission” aids plaintiffs’ case.

It is further argued that these statutory charges constitute “taxes” because various provisions refer to “fees” as being “taxed.” (See Ill. Const. 1970, art. IX, sec. 2, and Ill. Rev. Stat. 1979, ch. 33, par. 31.) But, as used in these provisions, the term “taxed” obviously refers to the process of assessing a charge such as court costs or fees. (See Webster’s Third New International Dictionary 2345 (1971).) Under plaintiffs’ interpretation of these provisions, fees always constitute taxes. We find no merit to this argument.

The complaint in this case fails to state facts which could, if proven, rebut the presumption that the charge imposed by section 27.2(15)(a) is a valid fee. Thus plaintiffs have failed to allege facts which could rebut the “presumption that the General Assembly and its committees acted conscientiously and did their duty in making a survey of the conditions prevailing in the [circuit courts] of the State before enacting [the clerks-of-courts act, as amended].” Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 399.

The next issue, as listed at the beginning of plaintiffs’ opening brief, is whether “the statutory clerk’s fees constitute a taking of property in violation of the Federal and Illinois constitutions.” Although we find no reference to this issue in the argument portion of the brief, we nevertheless find no merit to this argument because the “just compensation” provisions (Ill. Const. 1970, art. I, sec. 15; U.S. Const., amends. V and XIV, sec. 1) apply only to exercises of the power of eminent domain, not to applications of the authority to raise revenue for public purposes. See Zelney v. Murphy (1944), 387 Ill. 492 (holding that compulsory payments by employers under the Unemployment Compensation Act did not violate the “just compensation” provisions); 26 Am. Jur. 2d Eminent Domain sec. 4, at 642 (1966); cf. Coryn v. City of Moline (1978), 71 Ill. 2d 194, 202 (“The taxes imposed upon property within a special services area need not directly correspond to the monetary value of the benefits received”).

Finally, plaintiffs conclude that the clerks-of-courts act is invalid under the 1870 Illinois Constitution. See People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 76 (stating: “[W]e do not consider that the adoption of a new constitution serves to validate all statutes enacted under the former constitution regardless of their legality or illegality under the earlier constitution”).

However, plaintiffs present no argument in support of their conclusion. In fact, the argument portion of plaintiffs’ brief does not even list or refer to the sections of the 1870 Constitution which plaintiffs believe invalidate the clerks-of-courts act. The applicable rule in this situation is that,

“Where the constitutional validity of a statute is assailed the objection must be specific and complete. It is not enough merely to assert in a vague and general fashion that constitutional safeguards are violated.” Biggs v. Cummins (1955), 5 Ill. 2d 512, 516; see also Redmond v. Novak (1981), 86 Ill. 2d 374, 378 (holding that constitutional issues cannot be raised by general allegations which “do not specify in what manner the constitutional provisions were infringed”).

We accordingly hold that plaintiffs have not adequately raised or presented the issue of the. validity of section 27.2 under the 1870 Constitution.

Based on all the reasons given above, we find that plaintiffs’ complaint fails to state facts upon which judicial relief could be granted. Consequently, the court did not err in striking the complaint. And because plaintiffs elected to stand on the stricken complaint, the court did not err in dismissing the lawsuit. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE SULLIVAN

text:
    REVEREND ELIAS J. JONES, Petitioner-Appellant, v. THE MUNICIPAL OFFICERS ELECTORAL BOARD et al., Respondents-Appellees.
    First District (5th Division)
    No. 83—294
    Opinion filed February 10, 1983.
    Burton S. Odelson and Mark H. Sterk, both of Evergreen Park, for appellant.
    Michael Levinson and Franklin J. Funding, Jr., both of Chicago, for appellee Municipal Officers Electoral Board.
    Nathanial R. Howse, of Chicago, for appellee Charles E. Johnson.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Petitioner appeals from an order affirming a decision by the Municipal Officers Electoral Board (the Board) striking his name from the February 22, 1983, Aldermanic Ballot. He contends that (1) the statement of economic interests he filed was in substantial compliance with pertinent sections of the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1981, ch. 127, pars. 604A-101, 604A-104, 604A-105) (the Ethics Act) and the Election Code (111. Rev. Stat. 1981, ch. 46, par. 10 — 5); and (2) the removal of his name from the ballot was an improper sanction for violation of section 10 — 5—1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.1).

As a candidate for Chicago alderman from the Third Ward, petitioner was required to file a statement of economic interests in relation to that office. (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.) That statement must also comply with section 4A — 104 of the Ethics Act (Ill. Rev. Stat. 1981, ch. 127, par. 604A — 104), which provides in relevant part:

“The statement of economic interests required by this Article *** shall contain substantially the following:

STATEMENT OF ECONOMIC INTERESTS (TYPE OR HAND PRINT)

(name)

(office or position of employment for which this statement is filed)”

The pertinent portion of the statement filed by petitioner was as follows:

u

STATEMENT OF ECONOMIC INTERESTS TO BE FILED WITH THE COUNTY CLERK

(TYPE OR HAND PRINT)

R Pliaq ,T .TOrepq_3 P 0^ U7P* ^ (name)

Pactrir rrF 1 ch ITnify Mi'ssinnary Rapfist* CVmTrVi (office or position of employment tor which this statement is filed)

n

Petitioner also filed petitions for nomination which included the title “Reverend” before his name which were admittedly in violation of section 10 — 5.1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.1), which provides:

“In the designation of the name of a candidate on a certificate of nomination or nomination papers the candidate’s given name or names, initial or initials, a nickname by which the candidate is commonly known, or a combination thereof, may be used in addition to the candidate’s surname. No other designation such as a title or degree, or nickname suggesting or implying possession of a title, degree or professional status, or similar information may be used in connection with the candidate’s surname * * * ft

Objections to petitioner’s nomination papers were the subject of a hearing before the Board, which struck his name from the ballot after determining that he had violated section 10 — 5.1 of the Election Code and that he failed to file a statement of economic interests as required by the Ethics Act. The Board’s decision was affirmed by the trial court, and this appeal followed.

Opinion

Petitioner first contends that inclusion of the words “3rd Ward” next to his name constituted substantial compliance with the require-ment that his statement of economic interest include “the office *** for which this statement is filed.”

Initially, we note that a factual determination of the electoral board will not be reversed unless it is contrary to the manifest weight of the evidence (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 432 N.E.2d 1333); that is, unless the decision lacks “some competent evidence in the record sufficient to support the agency finding” (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538, 341 N.E.2d 394, 399).

The Board sustained the objections on the bases (1) that the petition violated section 10 — 5.1 of the Election Code; and (2) “for failure to file a Statement of Economic Interests in relationship to the office for which candidate is seeking election as required by the Illinois Governmental Ethics Act.” Petitioner agrees that absent the words “3rd Ward,” handwritten after petitioner’s name, the statement in question would not be in compliance with the Ethics Act, but it is his position that their inclusion brings the statement into compliance. He maintains that it may be presumed the statement was filed in relation to the aldermanic position, since it was filed concurrently with his nomination papers for that office. We note, however, not only that the statement is filed separately from other nomination papers and with a different governmental agency, but also that it makes no reference to those papers. Furthermore, such a statement is also filed by current public officials as well as by certain governmental employees and persons seeking employment, which further negates any presumption that the filing was in reference to an election.

It thus appears clear to us that the inclusion of the words “3rd Ward” does not describe the office of alderman of the Third Ward, as required not only by section 4A — 104 of the Ethics Act but also by section 10 — 5 of the Election Code, which provides that “[nomination papers *** are not valid if the candidate named therein fails to file a statement of economic interests *** in relation to his candidacy ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5(3).) In light thereof, we find that the Board’s determination in this regard is not against the manifest weight of the evidence.

Petitioner further argues, relying on Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, that section 4A — 104 is directory rather than mandatory, and maintains that removal from the ballot is therefore not a proper sanction for failure to comply. The Board contends that inclusion of the office sought is made mandatory by section 10 — 5 of the Election Code, which provides that all nomination papers are invalid if a candidate fails to file a statement “in relation to his candidacy.”

A mandatory provision is “one the omission to follow which renders the proceeding to which it relates illegal and void” (Havens v. Miller (1981), 102 Ill. App. 3d 558, 564, 429 N.E.2d 1292, 1296), and the question presented by this argument is whether the legislature intended to create a mandatory provision by requiring that a statement be filed in relation to a candidacy. Where the language of a statute is plain, there is no need for interpretation (Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 403 N.E.2d 225); however, where interpretation is required, we will select the construction which leads to a logical result (Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 232 N.E.2d 316), and we must consider the object to be attained (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31) and the result of various interpretations of the act (People ex rel. Holland v. Edelman (1975), 27 Ill. App. 3d 793, 327 N.E.2d 338).

Here, the provision in question should be considered not only in relation to the Election Code as a whole (Huckaba v. Cox (1958), 14 Ill. 2d 126, 150 N.E.2d 832), but also in relation to section 4A — 104 of the Ethics Act, to which specific reference is made. The Election Code requires that candidates comply with section 4A — 104 which, in directory rather than mandatory terms, requires candidates to reveal, among other things, the office to which they seek election. It thus appears that the use of the phrase “in relation to his candidacy” in section 10 — 5 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10— 5) is redundant, since that section incorporates section 4A — 104 by reference containing the same phrase. It is a general rule of statutory construction, however, that statutes should be construed so that no sentence, clause or word is superfluous. (In re Estate of Cregar (1975), 30 Ill. App. 3d 798, 333 N.E.2d 540.) Therefore, considering that repetition of the requirement served some purpose, we believe the most logical interpretation is that the legislature intended to make mandatory, rather than directory, the inclusion of the office sought, for that is the sole difference between the requirements of section 4A — 104 and section 10 — 5.

This construction is bolstered by consideration of the purpose of this statute and the result of a contrary interpretation. The public has a right to know of any financial dealings, however indirect, between a candidate and the unit of government in which he seeks office. The provisions of the Election Code are designed to facilitate that right. If we accept petitioner’s argument that failure to reveal the office sought does not affect the validity of his nomination petition, then the requirement of a statement of economic interests becomes meaningless. Furthermore, if the office is not revealed, then the truth of the candidate’s answers on his statement can never be tested, for they are not made in reference to any office or position of employment.

Petitioner next contends that removal of his name from the ballot was an inappropriate sanction for violation of section 10 — 5.1 of the Election Code. (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.1) He argues that the integrity of the election process would be preserved by merely deleting the title “Reverend” from the ballot.

Petitioner’s argument assumes that the sole purpose of prohibiting the use of a title on nomination papers is to prevent that title from appearing on the ballot. However, we note that the identical restrictive language is used in the Election Code to eliminate titles or degrees on petitions for nomination (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10.2), on certificates of nomination or nomination papers (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 5.1), on primary ballots (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 17) and on general election ballots (Ill. Rev. Stat. 1981, ch. 46, par. 16 — 3). It appears, then, that section 10 — 5.1 is unrelated to the use of titles on a ballot, since that problem is the subject matter of a separate section of the statute. Rather, it was obviously the intention of the legislature to ban the use of titles at any stage of the election process, not just at the final stage. Clearly, the purpose of these provisions is to prevent a candidate from unduly influencing voters in his nomination as well as in his election.

It is possible that a voter, seeing the title “Reverend” on a nominating petition, would be induced to sign that petition on the strength of that title, whether or not he was familiar with the candidate’s abilities. We do not know whether that was the case here, but the statute was designed to eliminate the need for inquiry into the reasoning processes of the numerous persons who sign a candidate’s petition. Petitioner argues, however, that under the reasoning of Richards v. Lavelle (7th Cir. 1980), 620 F.2d 144, the remedy of removing the title “Reverend” from the ballot would be a reasonable sanction which still preserved the integrity of the ballot. We believe that case to be inapposite, for there the court was able to fashion a remedy which accommodated the State’s interest in an orderly election procedure and the candidate’s due process rights. In the instant case, we are concerned not merely with orderly procedure but with conduct in direct violation of the Electoral Code, and the remedy petitioner urges us to adopt does nothing to solve the problem which the statute in question seeks to avoid. Moreover, were we to accept petitioner’s remedy, we might encourage others in the future to consider the use of titles on nomination papers knowing that it would result only in the removal of the titles on the ballots.

Finally, we note that at the time these nomination papers were filed, the harm had already occurred — nomination petitions were circulated bearing the title “Reverend.” The question for the Board, then, was not whether the title should go on the ballot, but whether the nomination process was tainted. The statute itself mandates the Board’s answer to that question, and the only possible remedy was removal of petitioner’s name from the ballot.

For the foregoing reasons, the order of the trial court affirming the Board’s decision is affirmed.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    CRAIG WILSON, Plaintiff-Appellee, v. ILLINOIS BENEDICTINE COLLEGE, Defendant-Appellant.
    Second District
    No. 82—386
    Opinion filed February 10, 1983.

      James Salega, of Nadelhoffer, Hennessy, Dommermuth & Brestal, of Naperville, for appellant.
    Patrick Mahoney & Associates, of Chicago, and Thomas V. O’Connor, of Wheaton, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Illinois Benedictine College (hereafter IBC), defendant, appeals the granting of an injunction by the circuit court of Du Page County, requiring IBC to graduate the plaintiff, Craig Wilson, at its May 23, 1982, commencement and to award him a bachelor of arts degree, provided he received a grade of “D“ or better in each of his 1982 spring semester courses. On May 20, 1982, this court stayed enforcement of this injunction pending appeal. On appeal, IBC contends that the circuit court erred in denying its motions to dismiss the complaint and for summary judgment, and in granting this mandatory injunction, arguing that the contract between IBC and Wilson, the IBC Bulletin 1978-79 (hereafter Bulletin), was not ambiguous in setting forth the necessary requirements to be eligible for graduation.

Wilson, an accounting major at IBC, filed a two-count complaint against IBC after being informed that his failure to receive a grade of “C” or better in two economics courses precluded him from graduating until he retook those courses. In count I, a specific performance count, Wilson alleged, inter alia, that a contract exists between him and IBC by virtue of the Bulletin which provides that IBC would certify Wilson for graduation if he completes certain courses and pays the necessary tuition; that he fulfilled or will fulfill his obligations pursuant to this contract by the end of the 1982 spring semester; that IBC, without any basis, wrote a letter to him informing him that he could not be certified for graduation; and that he has no adequate remedy of law. In count II, requesting a mandatory injunction and declaratory relief, Wilson realleged the allegations set forth in count I, and added that no advisor in IBC’s student advising system advised him that he would have to repeat the two courses in which he received “D’s”; that the Bulletin is ambiguous; that IBC’s agents refused to waive any of these requirements; that IBC and its agents acted arbitrarily and capriciously; and that irreparable harm results.

Wilson began his studies at IBC during the fall of 1978. He received a copy of the Bulletin during the prior summer and chose accounting as a major when he registered. In the spring of 1980 term, he took a macroeconomics course and received the grade “D”; the next fall he took microeconomics and also received a “D.” He received a copy of his grade report at the end of each semester which revealed these grades. He never discussed or inquired about the effect of these grades with his advisor or any faculty member or administration official. He never consulted the Bulletin to determine the effect of these grades.

On February 2, 1982, during the last semester before Wilson expected to graduate, he received a letter from IBC stating that he would not be allowed to graduate because he failed to receive grades of “C” or better in the two economics courses. He sought a waiver of this requirement but Dr. Margarete P. Roth, chairperson of the economics department until 1981, and Dr. Hull, refused to waive this requirement. Wilson was referred to the dean, Dr. Marvin E. Camburn, yet Wilson never met with him. Dr. Roth testified that she never has and never would waive the requirement that a student receive a “C” or better in these courses because they are important courses and waiver could harm IBC’s reputation. Wilson would have graduated but for the two “D’s” he received in these courses.

Professor Norman Gierlasinski, Wilson’s junior and senior year advisor, never discussed the impact that the two “D’s” would have on Wilson’s graduation prospects although he met with Wilson every semester and knew that he anticipated graduating in May 1982. Gierlasinski testified that he did not know that Wilson had received those grades, and that had he known he would have talked to Wilson about them. Grade reports, however, found in Wilson’s advisor’s file revealed that Wilson received “D’s” in those two courses. That file also contains checkoff sheets which keep track of a student’s completion of courses needed for graduation but do not mention the required grades. Gierlasinski discussed with Wilson the courses needed according to this requirement sheet to fulfill his graduation requirements. He first realized Wilson’s deficiency when Wilson called him concerning the receipt of the letter of February 2, 1982.

Although IBC has a deficiency notice system by which a professor sends a notice to the student when a student is doing poorly in a course, a copy of which is placed in his advisor’s file, no such notice was issued in Wilson’s economics courses. Thomas J. Dyba, executive vice-president of IBC, explained that the reason for this lack of notice could be that where a student appears to be doing well in a course, no notice is sent even though that student may eventually end up receiving a “D.”

Dean Camburn testified that an advisor need not go over a student’s file during that student’s junior year. Thomas Dyba testified that both the student and the advisor have the responsibility to know whether a course needs to be retaken.

After Wilson received the notification from IBC he rejected various options offered by Mr. Dyba to secure his graduation: retaking macroeconomics during the current term and participating in an independent study project in lieu of retaking microeconomics; taking one course at another college and transferring the credits; or taking summer school with permission to be absent for two weeks for his planned wedding and honeymoon to California. Wilson intended to take the certified public accountant’s review course during the summer, although he was not certain whether he was going to take the examination in November. He had received a full-time job offer from the place where he had been working part-time, but his salary had not yet been determined. The job offer did not require Wilson to take the CPA examination. During Wilson’s tenure at IBC, he never took more than 15 hours a semester and currently was taking 15 hours. He admitted, however, that had he decided to take extra hours of the economics courses during the current semester, it would not have been excessive because he had already been exposed to the material.

The Bulletin provides in pertinent part: a student must earn 120 semester hours and maintain a “C” average during his college career; “[ojnly courses in which a student has received a ‘C’ or better may be applied to the major” and “[rjepetition may be required if the student received ‘D’ in a course in his or her major and specific departmental regulations so require ***.” The Bulletin then discusses the various majors and minors and sets forth the required courses utilizing different language to explain the requirements: at times the Bulletin states that a student must successfully complete certain courses; other times it states that a student must satisfactorily complete certain courses. With respect to economics majors, which encompasses accounting, Wilson’s major, a student must successfully complete microeconomics and macroeconomics. The Bulletin further provides that, “Since students are responsible for their own academic programs, and for meeting the requirements of their major department, it is recommended that they meet with their faculty advisors for counseling at least once each semester.”

On the day set for trial, IBC filed a motion for summary judgment, which the court denied. At the close of the evidence, IBC renewed this motion and made an oral motion to dismiss the complaint for failure to state a cause of action pursuant to section 45 of the Civil Practice Act, recodified as section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615). The court denied both of these motions. The trial court found that the use of different language in the Bulletin relating what courses a student must complete created an ambiguity because the term “satisfactorily” implies a grade of “C” while the use of “successfully” could mean something less than a grade of “C,” and concluded that since a “D” is a passing grade, Wilson fulfilled the requirements for graduation.

Although IBC presents four issues for review, we need merely determine whether the mandatory injunction was properly entered and whether the deficiencies in IBC’s brief require this court to dismiss the appeal. The resolution of these two issues is dispositive of the appeal. We find it unnecessary, therefore, to consider the additional issues presented. A reviewing court will not consider questions or contentions which are not essential to the determination of the case before it. Yale Development Co. v. Andermann (1976), 37 Ill. App. 3d 33.

Wilson’s brief first argues that this court should either dismiss IBC’s appeal or summarily affirm the judgment below based upon certain deficiencies in IBC’s brief. Reviewing courts may dismiss an appeal where the appellant’s brief fails to comply with supreme court rules applicable to briefs. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 232.) In Coleman, the court explained that Supreme Court Rule 341(e) (87 Ill. 2d R. 341(e)),

“is not an arbitrary exercise of the supreme court’s supervisory powers. Its purpose is to require parties to proceedings before a reviewing court to present clear and orderly arguments for that court’s consideration.
Briefs are for the benefit of the reviewing court. They should be prepared in accordance with the applicable supreme court rule. They should follow the sequence set forth in the rule to the end a reviewing court may properly ascertain and dispose of the issues involved.” 56 Ill. App. 3d 229, 232.

Nevertheless, since Rule 341(e) is an admonishment to the parties, and not a limitation upon this court’s jurisdiction, this court may nevertheless consider the merits of a party’s appeal. (Brown v. Brown (1978), 62 Ill. App. 3d 328, 332.) While Wilson’s brief points to various defects in IBC’s brief, and despite the fact that IBC’s brief may be organized in an unusual manner, a cogent legal argument may be discerned from it. Therefore, this court will review the merits of IBC’s appeal.

The determinative issue presented for review is whether the trial court erred in granting a mandatory injunction requiring defendant college to graduate the plaintiff and award him a bachelor of arts degree.

An injunction is an extraordinary remedy which is only granted after the plaintiff establishes the existence of a lawful right, irreparable harm, and an inadequate remedy at law. (Distaola v. Department of Registration & Education (1979) 72 Ill. App. 3d 977, 980; Baugher v. Walker (1977), 47 Ill. App. 3d 573, 577.) The right sought to be protected must be certain and clearly ascertainable. (Potter v. School Directors of District No. 87 (1974), 17 Ill. App. 3d 781, 783.) A mandatory injunction, moreover, does not have judicial favor and is issued only with caution and in the sound discretion of the court. Malchow v. Tiarks (1970), 122 Ill. App. 2d 304, 311.

A college or university and its students have a contractual relationship; the relevant terms of the contract are set forth in the university’s catalogs. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 331-32; Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 1043.) A contract between a private institution and a student confers duties upon both parties which cannot be arbitrarily disregarded and may be judicially enforced. (DeMarco v. University of Health Sciences (1976), 40 Ill. App 3d 474, 480.) A student may have a remedy when it is alleged that an adverse decision concerning the student, supposedly for academic deficiencies, was made arbitrarily and capriciously and in bad faith (40 Ill. App. 3d 474, 480); thus a university may not act maliciously or in bad faith by arbitrarily and capriciously refusing to award a degree to a student who fulfills its degree requirements. Tanner v. Board of Trustees (1977), 48 Ill. App. 3d 680, 683.

In the instant case, the parties agree that the Bulletin constitutes a contract between them; their disagreement concerns the interpretation of that contract and whether any ambiguities exist in it. A contract will not be held binding and enforceable unless its terms are sufficiently definite and certain. (Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 1044.) A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. (In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 108.) The fact that a plaintiff does not agree with a defendant’s interpretation of these provisions does not create an ambiguity. (Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 1045; National Wrecking Co. v. City of Chicago (1970), 128 Ill. App. 2d 205, 208-09.) Whether a contract is ambiguous presents an issue of law so that a reviewing court may independently construe the contract unrestrained by the trial court’s judgment. Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc. (1982), 107 Ill. App. 3d 442, 446; Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697.

The trial court erred in finding that the Bulletin was ambigúous. It clearly states that, “Only courses in which a student has received a ‘C’ or better may be applied to the major,” and informs the student that he may have to repeat a course in his major if he received a “D” and if specific departmental regulations so require. While it is true that the Bulletin’s listing of required courses for accounting majors states that a student must “successfully complete” certain courses, the use of different words to outline courses necessary for other majors does not create an ambiguity. Reading the Bulletin as a whole and giving meaning and effect to every provision thereof because it is presumed that every clause in the contract was inserted deliberately and for a purpose (Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 991) shows that the trial court’s interpretation of the Bulletin was in error. For example, biochemistry majors, according to the Bulletin, need to complete certain courses; minors, however, must satisfactorily complete certain of the same courses. Adopting the trial court’s interpretation of the contract would mean that the contract requires more stringent standards for minors than majors, an unrealistic result. The Bulletin requires that biology minors must satisfactorily complete certain courses and notifies the student that “only courses in which a grade of C or better was earned may be counted.” If satisfactory means receiving a “C” or better, as Wilson advocates, then this section of the Bulletin would be redundant. Clearly, the purpose of the college notifying the biology minor of the need to receive a “C” or better is because a “C” or better is normally required only from majors in a particular field. Similar indicators that the terms “complete,” “successfully complete,” and “satisfactorily complete,” represent the same concept are replete in the Bulletin. Thus, in light of the two provisions quoted earlier, no ambiguity exists in the Bulletin: a student must receive a “C” or better in a course in the student’s major to have it credited.

Had there been a protectible right, the mandatory injunction may have been proper. No clear remedy at law existed. For a legal remedy to be deemed adequate, it must be clear, complete, and as practical and efficient to the ends of justice in its prompt administration as the equitable remedy. (City of Chicago v. Festival Theatre Corp. (1982), 91 Ill. 2d 295, 314; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549.) A threatened breach of contract may be enjoined. (See Sports Unlimited, Inc. v. Scotch & Sirloin (1978), 58 Ill. App. 3d 579.) Since the withholding of a diploma is a unique injury, it justifies equitable relief. DeMarco v. University of Health Sciences (1976), 40 Ill. App. 3d 474, 481.

Whether IBC’s action created irreparable harm, however, is not as clear. Wilson presented evidence showing irreparable harm, in that many of his plans would have to be delayed. IBC attempted to contradict at trial the actual impact that Wilson’s delayed graduation would have. Since in a bench trial, as in the present one, the trial judge weighs the evidence and draws from it proper inferences and conclusions; these conclusions will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (American Food Management, Inc. v. Henson (1982), 105 Ill. App. 3d 141, 147.) Inasmuch as irreparable harm does not mean injury that is beyond repair nor beyond compensation in damages, and rather, denotes transgressions of a continuing nature (SSA Foods, Inc. v. Giannotti (1982), 105 Ill. App. 3d 424, 428), it cannot be said that the trial court’s finding that there was irreparable harm was against the manifest weight of the evidence.

Wilson further urges that IBC is estopped from refusing to graduate him because its agent, the IBC advisor, and others, never informed him of the consequences of receiving the two grades of “D.” Estoppel refers to reliance by one party on the word or conduct of another so that the party changes his position and subsequently suffers harm. (Vendo Co. v. Stoner (1982), 108 Ill. App. 3d 51, 55.) It arises whenever “'“*** one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is as a reasonable and inevitable consequence, misled, to his injury.” ’ ” (Allstate Insurance Co. v. Horn (1974), 24 Ill. App. 3d 583, 588.) Estoppel must be proven by clear unequivocal evidence. (Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 21.) Although an intent to mislead is not required, the reliance must be reasonable. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 95.) The mere passage of time without action by one party does not by itself bring this doctrine into effect. (In re Estate of Neirinck (1978), 62 Ill. App. 3d 189, 192.) Furthermore, to claim reliance on the conduct of another, which could be silence or statements, the party must have acted without knowledge of the truth of the matter relied upon. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 94.) Finally, the conduct of the person seeking the benefit of the doctrine may be scrutinized. Forest Investment Corp. v. Chaplin (1965), 55 Ill. App. 2d 429, 434.

In the instant case, since the Bulletin contained no ambiguity, it is not reasonable for Wilson to have relied on the lack of warnings by his advisor or other agents of IBC. The Bulletin provides that "students are responsible for their own academic programs and for meeting the requirements of their major department.” Wilson testified that after he received each “D” he never inquired about its effect or read the Bulletin to determine its effect. Perusal of the Bulletin surely would have put him on notice that he should have made some sort of inquiry. Any obligation of IBC or its agent to notify Wilson of a deficiency which he wishes to infer from the Bulletin lacks support. While the Bulletin “recommends” that students “meet with their faculty advisors for counseling at least once each semester,” that does not create any obligation to so meet. More accurately, that provision is more in the nature of an unenforceable expression of intention, hope, or desire, and was not communicated to Wilson in such a way as to invite payment of tuition in reliance thereon. (See Abrams v. Illinois College of Podiatric Medicine (1979), 77 Ill. App. 3d 471, 477.) Thus, since the reason for IBC’s action is clearly stated in the Bulletin, neither IBC nor its agents acted in violation of the Bulletin or acted in an arbitrary or capricious manner. Where their conduct complied with the contractual relationship, and was not discretionary, it cannot be said that IBC and its agents acted arbitrarily or capriciously. See Aronson v. North Park College (1981), 94 Ill. App. 3d 211; Eisele v. Ayers (1978), 63 Ill. App. 3d 1039.

The judgment of the circuit court of Du Page County is reversed.

Judgment reversed.

SEIDENFELD, P.J., and LINDBERG, J., concur.