author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLNOIS, Plaintiff-Appellee, v. JAMES L. FUTIA, Defendant-Appellant.
    Fourth District
    No. 4—82—0723
    Opinion filed July 14, 1983.
    Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged by indictment in the circuit court of Champaign County with the offense of forgery in violation of section 17 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 17 —3). He was found guilty by a jury and sentenced to an extended term of nine years’ imprisonment.

On appeal he raised three issues: (1) reasonable doubt, (2) improper cross-examination, and (3) error in not advising him of the possibility of treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91½, par. 120.1 et seq.)

The facts, briefly summarized, indicated that on July 14, 1982, defendant in the company of Kayrene Wright went in Wright’s car to a drive-up facility of the Champaign County Bank and Trust Company and presented for payment a check purportedly made by Helen J. Reinbold with Teresa Hibler as payee. The endorsement on the instrument purports to be that of Hibler together with her address and account number. The teller to whom the check was presented became suspicious because both the check and the deposit slip were improperly filled out. She then called her supervisor and also made a note of the license number of the car on the check. The car was registered to Kayrene Wright. The teller, at the direction of her supervisor, placed a call to the First Federal of Champaign, the drawee bank. While this was going on, defendant asked over the intercommunication system what was taking so long, and then drove away before the transaction could be completed. The supervisor then called the police and turned the check over to them.

Reinbold, the purported maker of the check, testified that her purse containing her checkbook had been taken from her grocery cart in a market on July 3. She identified the check in question as being one from her checkbook and stated that she did not sign it nor authorize anyone else to do so. She further stated that on July 7 she received a phone call from the defendant who said he had obtained her wallet from her purse and would return it to her. She agreed to meet him and did so; he returned her wallet but not her checkbook, purse, or keys.

Hibler, the purported payee, testified that she knew the defendant and had previously written a check to him; that the address in the endorsement of the check in question, 27 Rowena, was her former address; and that her new address, 601 Poplar, was known to the defendant since he had been there.

Urbana police officer Lockard testified that he received the check from the bank and forwarded it, together with the deposit slip and a set of defendant’s fingerprints, to the FBI. He further stated that he had for several weeks prior to trial attempted to locate Kayrene Wright, defendant’s companion, but was unable to do so.

A fingerprint expert from the FBI testified that the check contained four identifiable prints belonging to the defendant. These were found on the front of the instrument, near a crease in the middle. She found no prints belonging to Wright.

Defendant testified and attempted to lay all the blame on Kayrene Wright, claiming in substance that he was an innocent dupe. He stated that he had seen Reinbold’s purse and contents at a friend’s house and undertook to return it to her; that he knew Hibler lived on Poplar; and that she had written him a check earlier in June or July. He claimed that on the date of the offense, July 14, he was driving Wright’s car in her company and she asked him to go to the bank to cash a check for her; that they did go to the bank and she handed him a folded check which he put into the pneumatic tube at the drive-in without looking at it; and that he drove away on her direction.

In cross-examination of the defendant, the State commenced to delve into his activities with Wright prior to going to the bank. There was objection and a conference in chambers was held on the matter. At that conference it was represented that defendant was accompanying Wright while she was “boosting clothes.” It was stipulated that this phrase meant shoplifting. Defendant objected on the basis of prejudice, i.e., other crimes, while the State maintained that the probative value outweighed the prejudice, i.e., other crimes, while the State maintained that the probative value outweighed the prejudice, i.e., defendant knew Wright to be a dishonest and untrustworthy person and that this bore on his knowledge and intent when he presented the check for payment. The trial court overruled the objections and the defendant testified before the jury that he had been driving around to several stores before going to the bank and that at one store she had sent him in to return some clothing which he later found out were stolen and the price tags changed, apparently the origin of the term “boosted.”

Defendant’s principal argument on the reasonable doubt issue is that the entire case against him was circumstantial and therefore any doubt should be resolved in favor of innocence. He further maintains that the theory of innocence is underpinned by his explanation of events. We do not agree. As to his explanation, the jury was not required to believe it. (People v. Malmenato (1958), 14 Ill. 2d 52, 150 N.E.2d 806.) He was in possession of Reinbold’s purse more than a week before the offense; he knew Hibler and was aware of her address and account number; his flight was evidence of his consciousness of guilt. People v. Eston (1977), 49 Ill. App. 3d 747, 364 N.E.2d 609.

Interestingly, defendant’s fingerprints span the fold on the check, although he claimed to have handled it only in a folded condition. It would be physically impossible to make such prints unless the check were lying flat.

While there is no direct evidence that defendant made the instrument or knew it was forged, the evidence, taken as a whole, does not support his claim of nonparticipation. We find no basis for interfering with the verdict of the jury.

On the matter of the cross-examination: the parties argued the matter to the trial court and that court ruled on the basis of potential prejudice versus probative value. While we agree with the result, we find a firmer basis for the court’s ruling. On direct examination, the defendant had testified to a conversation with Officer Lockard but limited it to what had happened to the prior check given to him by Teresa Hibler, what he had told Lockard about the possibility of Wright’s having written the check, and why he had left the drive-in facility without completing the transaction. The prosecutor’s question on cross-examination was:

“Didn’t you tell Investigator Lockard on August 17, 1982, when Mr. Jones [defense counsel] indicated you spoke with him it was about 9:45 in the morning, didn’t you tell him that you and Kayrene Wright had been driving around in her car while she boosted clothes?”

The law has long been in this State that one cannot introduce a portion of a conversation and then bar the opposing party from bringing out the rest of that conversation. The most recent pronouncement is found in People v. Weaver (1982), 92 Ill. 2d 545, 556-57, 442 N.E.2d 255, 259:

“In People v. Nakutin (1936), 364 Ill. 563, 571, this court stated that ‘where a conversation is related by a witness the opposing party has a right to bring out all of the conversation on cross-examination.’ (Accord, People v. Kalpak (1957), 10 Ill. 2d 411, 424; Biel v. Wolff (1970), 126 Ill. App. 2d 209; Dispenza v. Picha (1968), 98 Ill. App. 2d 110.) In view of the possibility that the jurors would be misled into thinking that the defendant has said nothing else, we believe the trial court should have allowed Mrs. Goodfellow to testify to the defendant’s statement.”

While Illinois has somewhat vacillated between the “wide-open” rule and the “restrictive” rule on cross-examination (see McCormick, Evidence sec. 21, at 46-49 (2d ed. 1972)), clearly, as to conversations, a party cannot pick and choose which elements of a conversation he wishes to place before a jury. By opening up the conversation he opens it in its entirety, not in discrete portion. Here the defendant opened up the subject on direct examination and he cannot complain if the prosecutor elected to tell the jury what else was said.

The matter of the Dangerous Drug Abuse Act presents a closer question. Section 10 of that Act (Ill. Rev. Stat. 1981, ch 91½, par. 120.10) provides, in relevant part:

“If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds that he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission.”

In a prior opinion (People v. Chaput (1981), 100 Ill. App. 3d 982, 427 N.E. 2d 595) we held this provision to be mandatory. We employed that term because of the strong evidence in that case of drug addiction, unlike the instant case. In our opinion “reason to believe” is the semantic equivalent of probable cause. Therefore, the court must find probable cause that an individual is an addict before the admonition becomes mandatory. Probable cause is a familiar concept in the administration of criminal justice and requires no special definition in the context of this statute. There was probable cause in Chaput) there is not in the case at bar.

In the instant case, the presentence report stated in part: “Records reflect that the defendant is an alcohol and drug abuser, specifically heroin.” (Emphasis added.) It then went on to describe two drug rehabilitation programs in which the defendant had been participating, but indicated that they were not successful and the defendant was removed from them, one within two weeks and the other within one day. In argument concerning an extended sentence, the State’s Attorney stated that the defendant was “an admitted heroin addict.”

The question then becomes: were these two items enough to give the court reason to believe that the defendant was an addict? We think not. The information in the presentence report states only that he was an “abuser,” not an “addict.” It was also concerned with affairs which had occurred almost a year prior to the sentencing hearing. “Addict” is defined in the Act as:

“ ‘Addict’ means any person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger the public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” Ill. Rev. Stat. 1981, ch. 91½, par. 120.3—3.

The presentence report also indicated that the defendant was in apparent good health and had been incarcerated for a substantial period of time prior to trial without any indication of withdrawal symptoms. In this respect the instant case is strikingly similar to People v. Morgan (1977), 50 Ill. App. 3d 962, 965, 365 N.E.2d 1362, 1364, where the court said, “[T]he defendant resided in the Winnebago County Jail for four months, prior to sentencing, presumably cut off from any supply of heroin or any other unlawful drugs, without any apparent difficulty.”

At no time did the defendant state that he was an addict; the presentence report stated only that he was an abuser at a time remote from the sentencing hearing; and he appeared in good health at the time of sentencing after incarceration. There was nothing in the report which would give the trial court any reason to believe that at the time he was an addict. The cases cited by defendant are inapposite in that the defendants there were in fact in drug rehabilitation programs at the time of sentencing and the court so knew.

The State’s Attorney’s statement to the court, while inept, was not evidence — argument never is — and it was made in the context of the extended term. The fair inference is that he was using the term “addict” in its generic, rather than its statutory, sense, a denigration of defendant’s potential for rehabilitation.

Defendant’s final argument relates to the extended term. He does not maintain that he was not eligible for such a term, having been convicted of the same or greater class of felony within 10 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(b)(1).) However, he claims double enhancement in that the trial court used his prior criminal record once to support the extended term and next to impose only one year less than the maximum extended term for forgery, 10 years. He also argues that forgery is not a serious crime of violence.

The record does not support these contentions. Defendant’s extended term was the result of the statute, not his prior record, and it was well within the discretion of the trial court to consider that record in fixing the years of the extended term. This is a function peculiarly within the province of the trial courts, and reviewing courts will not interfere except in cases of clear abuse. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Defendant’s extensive criminal record clearly supports the trial court’s actions.

Whether forgery is a serious crime or not is a matter for the legislature to decide. If the question were asked, doubtless different answers would come from bankers and art dealers than from mule skinners and highwaymen. Every offense is serious to some segment of society while lightly regarded by others. It is for this reason that consensus on the matter can only be reached in a body representing all factions.

The conviction and sentence are affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    SHELBY COUNTRY CLUB et al., Plaintiffs-Appellees, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellants.
    Fifth District
    No. 82—295
    Opinion filed July 7, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellants.
    Dove & Dove, of Shelbyville, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court;

This action was brought under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). The sole issue raised by defendant’s appeal is whether the circuit court of Shelby County erred in concluding that the Illinois Liquor Control Commission (hereinafter the State Commission) lacked jurisdiction to consider whether the sale of alcoholic liquor was forbidden in Shelbyville Township, Shelby County, Illinois.

Prior to 1979, the Shelby County Local Liquor Control Commission (Local Commission) licensed the Shelby Country Club and Lithia Springs Marina, Inc. (licensees), to conduct retail sales of alcoholic liquor. The record indicates that Robert Ramshaw filed an appeal with the State Commission on May 3, 1979, from the Local Commission’s failure to set a hearing within 30 days of his complaint on the issue of whether the sale of alcoholic liquor was legal in Shelbyville Township. By order entered June 20, 1979, the State Commission remanded the matter to the local Liquor Control Commissioner of Shelby County (Local Commissioner) for a hearing on the issue of whether Ramshaw had submitted a proper petition to the Local Commissioner. The order of remand stated that the remand did not preclude filing a new petition. After a hearing, the Local Commission concluded, by written order dated July 25, 1979, that the petition was deficient because it was not signed or sworn to by five residents of Shelby County and because it did not substantially charge a violation. It does not appear of record that the Local Commission’s dismissal of Ramshaw’s petition was appealed to the State Commission.

On August 28, 1980, a new complaint was filed with the county clerk of Shelby County, alleging that the township was “dry” and that licensees’ licenses were therefore void. Ramshaw was not among the complainants, although the complaint bears his seal as notary public. The Local Commission issued summons on the complaint. Robert and Patricia Ramshaw subsequently joined in the complaint as additional complainants. The Ramshaws and one other complainant appealed to the State Commission on September 29, 1980, contending that the Local Commission had failed to grant a hearing on the complaint within 30 days as required by section 8 of article VII of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 153). The Local Commission was notified by letter by the State Commission regarding this appeal. On November 18, 1980, the Local Commission held a hearing on the complaint. On November 21, 1980, the Local Commission dismissed the complaint on the merits. No appeal from that dismissal appears of record. On November 26, 1980, the Local Commission moved to dismiss the September 29, 1980, appeal to the State Commission, urging that the appeal was moot because a hearing had been held and a decision returned.

Hearings were held before the State Commission on February 18 and April 22, 1981. By order of April 29, 1981, the State Commission remanded the matter to the Local Commission for a hearing on the merits. On May 6, 1981, the licensees filed a complaint for administrative review in the circuit court of Shelby County, alleging, inter alia, that the State Commission had lacked jurisdiction to remand the matter to the Local Commission. The licensees also unsuccessfully sought a stay of the order of remand. The Local Commission held a hearing on remand on June 1, 1981, and, on June 3, 1981, dismissed the complaint on the merits. Complainant Robert Ramshaw appealed this decision to the State Commission on June 8, 1981. After a hearing, the State Commission reversed the order of the Local Commission and declared the licensees’ licenses void. The licensees’ petition for rehearing was denied by the State Commission.

On September 3, 1981, the licensees filed a second complaint for administrative review in the circuit court, contesting, inter alia, the State Commission’s jurisdiction to enter its most recent order. The circuit court consolidated this action with the administrative review action filed by the licensees on May 6, 1981. After hearings, the circuit court found that: (1) because the Local Commission’s decision of November 21, 1980, had not been appealed in the manner and form provided by statute, the State Commission did not have jurisdiction to conduct proceedings on the matter; and (2) the State Commission’s orders subsequent to that date were void. The State Commission appeals to this court from this decision.

We first consider the State Commission’s challenge to the jurisdiction of the circuit court. The State Commission urges that the circuit court was without jurisdiction of the appeal from the April 29, 1981, order of the State Commission' which remanded the matter to the Local Commission for a hearing on the merits. The State Commission argues: (1) that the remand order was not “final” and hence not appealable under the provisions of sections 2 and 5 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, pars. 265, 268); and (2) alternatively, that the order could not be appealed if it were “final” because the complainants did not apply for a rehearing before the State Commission as required by section 8a of article VII of the Liquor Control Act (Ill. Rev. Stat. 1979, ch. 43, par. 154). The complainants argue that an application for rehearing was unnecessary to question the jurisdiction of the State Commission on appeal to the circuit court under the provisions of section 2 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 265).

We conclude, however, that we need not consider whether the circuit court lacked jurisdiction over the appeal from the State Commission’s April 29, 1981, remand order. The record indicates that the circuit court’s jurisdiction of the September 3, 1981, appeal is not in question; consequently, since defendants do not dispute the circuit court’s jurisdiction of the September 3, 1981, appeal, that court could consider “all questions of law and of fact presented by the entire record before the court” under the provisions of section 11 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 274). We note that the circuit court did not address the merits of the appeal from the April 29, 1981, remand order until after the September 3, 1981, appeal was filed; therefore, the circuit court had jurisdiction to consider the same issues regardless of whether it had jurisdiction of the appeal from the remand order prior to September 3, 1981, appeal.

We next consider the licensees’ contentions that the State Commission did not have jurisdiction to consider the merits of the issue as to whether the sale of alcoholic liquor was legal in Shelbyville Township.

The licensees urge that the Local Commission’s order of July 25, 1979, dismissing Ramshaw’s complaint became final and nonappealable because it was not appealed to the State Commission. The licensees argue that any proceedings on any level after the statutory time for appeal of that order had expired exceeded the grant of authority to the respective commissions by the legislature. We do not agree. The July 25, 1979, order was not a disposition on the merits. It was not final in form or effect. It set forth no defect in the complaint which could not have been cured by amendment. (Cf. Martin v. Marks (1980), 80 Ill. App. 3d 915, 918, 400 N.E.2d 711, 713, holding that the circuit court’s order striking a complaint or granting a motion to dismiss is generally not appealable absent words importing finality, i.e., that plaintiff will not be allowed to plead over or that the litigation between the parties is terminated.) Complainants were not precluded from filing a subsequent timely petition requesting a hearing on the merits, and the Local Commission’s entertainment of the August 28, 1980, complaint was proper.

Next, licensees contend that the State Commission did not have authority to consider the September 29, 1980, appeal from the Local Commission’s failure to set a hearing within 30 days of the August 28, 1980, complaint. Section 8 of article VII of the Liquor Control Act states:

<<*** any order or action of a local liquor control commissioner granting or refusing to grant a license, revoking or suspending or refusing to revoke or suspend a license or refusing for more than 30 days to grant a hearing upon a complaint to revoke or suspend a license may within 20 days after notice of such order or action be appealed from by any resident of the political subdivision *** to the State Commission ***.” Ill. Rev. Stat. 1979, ch. 43, par. 153.

The State Commission urges that an appealable refusal to grant a hearing occurred when, within 30 days of the filing of the August 28, 1980, complaint, the Local Commission merely issued summons to the licensees requiring their answer or appearance within 60 days and notified complainants that upon receipt of written appearance, answer or other pleading by the licensees, the Local Commission would determine whether or not the matter would be set for a hearing.

We are of the opinion that complainants’ September 29, 1980, appeal based on failure to grant a hearing was premature at that point in time. The Local Commission had not expressly refused a hearing. Although no hearing had been promised or set, the Local Commission had merely delayed its decision whether to set the petition for hearing for a time certain while it gave the licensees an opportunity to file responsive pleadings if they wished. We find that action by the Local Commission to be reasonable in view of the fact that previously a similar petition had been filed with the Local Commission, by the State Commission, and dismissed by the Local Commission. The fact that a complaint requesting a hearing had been filed did not require the Local Commission to set a hearing within 30 days without further inquiry. The Local Commission was entitled to consider whether the complaint warranted a hearing. The existence and nature of the dispute before the Local Commission may not properly have been discerned absent the benefit of any responsive pleadings the licensees may have chosen to file. Their answer might have disposed of the issues raised to the complaint either in favor of or against the complainants, rendering a full hearing unnecessary. While permitting a reasonable time for the filing of responsive pleadings prior to setting a hearing date would appear to be appropriate in most, if not all, matters before the Local Commission, it was uniquely appropriate here for the additional reason that a prior petition had already been dismissed by the Local Commission as being inadequate on its face.

Nothing in the Liquor Control Act cited to this court or found by us requires the contrary conclusion. While section 8 of article VII makes appealable the “refusal” to grant a hearing, there was no refusal in the case of the August 28, 1980, petition. Neither can it be said that the Local Commission created or encouraged an inordinate delay in acting on such complaint prior to the September 29, 1980, appeal. Although it may be said that within that time, the Local Commission “failed to grant” a hearing, there was no refusal. Had the legislature chosen to make “failure to grant” a hearing within 30 days of the filing of petition appealable, it could have done so. In that regard we find the legislature’s choice of words in article VII, section 8 significant. We conclude that the action or inaction of the Local Commission as of September 29, 1980, was not appealable to the State Commission under the provisions of the Liquor Control Act. The matter was still pending before the Local Commission as of that time. In addition to the foregoing, the Local Commission’s decision of November 21, 1980, regarding the merits of the August 28, 1980, petition was a final and appealable order and was never appealed. As the trial court correctly concluded, the State Commission had no authority to conduct further proceedings on the question whether Shelbyville Township was a “dry” area absent a timely appeal from that decision. (See Ill. Rev. Stat. 1979, ch. 43, par. 153.) Accordingly, the trial court properly determined that the State Commission’s order reversing the Local Commission’s determination in favor of the licensees was beyond the authority granted by the legislature to the State Commission.

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

Affirmed.

JONES and EARNS, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD JUSTICE HOPE,

text:
    HERBERT HAYEN et al., Plaintiffs-Appellees, v. THE COUNTY OF OGLE, Defendant-Appellant (Aurand Construction et al., Intervenors-Appellants).
    Second District
    No. 82—313
    Opinion filed July 6, 1983.

      HOPF, J., dissenting.
    Dennis Schumacher, State’s Attorney, of Oregon, for appellant County of Ogle.
    Gerard C. Smetana, of Arvey, Hodes, Costello & Burman, of Chicago, for other appellants.
    Joseph W. Phebus and Janet A. Flaccus, both of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal challenges the constitutionality of “An Act regulating wages of *** workers employed in any public works ***” (Prevailing Wage Act) insofar as it is construed to define “general prevailing rate of wages” as wages paid to employees working on public works only. Ill. Rev. Stat. 1981, ch. 48, par. 39s—1 et seq.

The county board of Ogle County passed a resolution ascertaining the prevailing wages to be paid on public works projects in the county by first inquiring into wage rates paid on both public and private construction projects for similar trades. Using this information, the county board passed a resolution which averaged the rate set for each of the construction crafts to arrive at the prevailing wage for each craft. The plaintiffs, who are representative of certain trade unions in the county, objected to this method, claiming that the statute limits the inquiry to wages paid on public works projects. They further claim error in the mathematical computation.

Following a hearing, the county board adhered to its resolution. Plaintiffs sought administrative review in the circuit court. Various parties doing business in Ogle County were permitted to intervene as of right. The circuit court, finding no issue of fact, reversed the county board’s determination based on the law and directed the county to reascertain the prevailing rate of wages by limiting its inquiry to wages paid on public works. The county and intervenors appeal, contending that the statute, so construed, is unconstitutional as a violation of due process and equal protection standards.

We consider first the contention of the plaintiffs that the county lacks standing to challenge the constitutionality of the Prevailing Wage Act because a municipal entity is not a “person” entitled to fifth and fourteenth amendment protections of due process and equal protection under the Federal Constitution and under similar provisions in the State Constitution. (See Village of Riverwoods v. Department of Transportation (1979), 77 Ill. 2d 130, 136; Franciscan Hospital v. Town of Canoe Creek (1979), 79 Ill. App. 3d 490, 496-97.) This argument was not advanced by petitioners in the trial court and they are therefore precluded from raising it on appeal. (Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 11; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) We will therefore consider the constitutional arguments without reviewing the issue of the standing of the county and the intervenors to raise them.

The statute provides, as pertinent:

“Sec. 1. It is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works, exclusive of maintenance work.” Ill. Rev. Stat. 1981, ch. 48, par. 39s—1.
“Sec. 2. This Act applies to the wages of laborers, mechanics and other workers employed in any public works, as hereinafter defined, by any public body and to anyone under contracts for public works.
As used in this Act, unless the context indicates otherwise:
‘Public works’ means all fixed works constructed for public use by any public body, other than work done directly by any public utility company, whether or not done under public supervision or direction, or paid for wholly or in part out of public funds.
* * *
The terms ‘general prevailing rate of hourly wages,’ ‘general prevailing rate of wages’ or ‘prevailing rate of wages’ when used in this Act mean the hourly cash wages plus fringe benefits for health and welfare, insurance, vacations and pensions paid generally, in the locality in which the work is being performed, to employees engaged in work of a similar character on public works.” Ill. Rev. Stat. 1981, ch. 48, par. 39s—2.
“Sec. 3. Not less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed, and not less than the general prevailing rate of hourly wages for legal holiday and overtime work, shall be paid to all laborers, workers and mechanics employed by or on behalf of any public body engaged in the construction of public works, exclusive or maintenance work. ***” Ill. Rev. Stat. 1981, ch. 48, par. 39s-3.
“Sec. 4. The public body awarding any contract for public work or otherwise undertaking any public works, shall ascertain the general prevailing rate of hourly wages in the locality in which the work is to be performed, for each craft or type of worker or mechanic needed to execute the contract ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 39—4.)

The county and the interveners contend that the act as construed by the circuit court unconstitutionally deprives the taxpayers of Ogle County of property by forcing them to pay, they claim, substantially higher wages to workers on public projects than is paid on private projects, without a rational relation to the purpose of the act. They also contend that the statutory construction substantially interferes with the right of contractors to contract with their employees and materially increases the costs of construction.

This court has previously decided that the phrase “on public works,” which was added to section 2 of the act in 1961, has the effect of limiting the inquiry in ascertaining the prevailing wage rate to only those wages paid on public projects. (Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, 358.) The appellants appear to be arguing that we should reassess our holding in Anderson, apparently for the reason that, they argue, Anderson does not deal with the declaration of policy found in section 1 of the act which was not changed following the amendment to section 2 in 1961. They argue that the purpose of the act since its enactment, as stated in section 1, has been to effectuate a policy that workers on public contracts receive not less than wages paid for similar work throughout the locality, not merely wages paid on public works. Thus, the statute as we have construed it can never achieve the legislative purpose of equalizing public and private wages and therefore does not bear a rational relation to the legislative purpose.

We find these arguments unpersuasive for several reasons. First, the policy declaration is essentially neutral. Section 1 does not state that it is State policy to equalize public works and private construction wages. Rather, it declares the policy to be “that a wage of no less than the general prevailing hourly rate *** in the locality *** shall be paid” to all laborers on public works projects. (Emphasis added.) The underlined phrase is defined in section 2 as wages and benefits paid generally in the relevant locality to “employees engaged in work of a similar character on public works.” There is thus inherent harmony rather than conflict between sections 1 and 2. We recognized in Anderson that the legislature intended the act as amended to provide for the equalization of wages paid for similar jobs within only the public works sector. Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, 358.

Further, “a declaration of policy, like a preamble, ‘is no part of the Act.’ ” (Brown v. Kirk (1976), 64 Ill. 2d 144, 152.) The provision of the act as amended unambiguously indicates that only public works wages are to be equalized. It is an improper mode of construction of statutes to create ambiguity by reference to a policy section of the statute. (Brown v. Kirk (1976), 64 Ill. 2d 144, 152-53.) The real issue is whether the statute serves any legitimate State objective. A law does not violate due process as long as it bears a rational relation to a proper legislative purpose and is neither arbitrary nor discriminatory. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 725. See also Williamson v. Lee Optical (1955), 348 U.S. 483, 488, 99 L. Ed. 563, 572, 75 S. Ct. 461, 464.) The court applying the rational basis test is not charged with isolating the legislature’s actual “purpose” in passing a statute and then determining whether the statutory means are rationally related to the actual goal of the legislature. Rather, it is settled that there is a “rational basis” if the legislature could have concluded that the law is reasonably related to any legitimate State objective. The court is not restricted to examining the rational connection between the statute and the goal that the legislature had in mind when it passed the law; if there is a plausible reason for the legislative action it is “ ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.’ ” (United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 179, 66 L. Ed. 2d 368, 378, 101 S. Ct. 453, 461.) Thus the test is whether there exists a rational relation between the statute and “a” proper legislative purpose. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538; United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 175-78, 66 L. Ed. 2d 368, 376-78, 101 S. Ct. 453, 459-61; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 725.) This is consistent with the view that a law does not violate substantive due process if it is not arbitrary or discriminatory. United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 173 n.8, 66 L. Ed. 2d 368, 375 n.8, 101 S. Ct. 453, 458 n.8.

The same reasoning applies if the statute is subjected to a constitutional equal protection analysis. The argument that the act violates equal protection is essentially based on the assertion that it may require contractors to pay higher wages on public works projects than they might pay on private works projects. This difference is no ground for invalidating the statute and is adequately supported by the State’s interests in controlling the conditions under which public works projects are performed, so as to “give some assurance that the work will be completed without *** delay by workmen of average skill.” (Bradley v. Casey (1953), 415 Ill. 576, 586; Atkin v. State of Kansas (1903), 191 U.S. 207, 48 L. Ed. 148, 24 S. Ct. 124.) The act, which in essence sets a minimum wage for public works projects, is not arbitrary and thus violates neither due process nor equal protection.

We also find no merit in the other constitutional arguments raised by the county and intervenors. The act does not violate the privileges and immunities clause of the fourteenth amendment; the economic interests involved here are not within the rights of national citizenship protected by that clause. (Murphy v. Mt. Carmel High School (7th Cir. 1976), 543 F.2d 1189, 1192-93; Slaughter-House Cases (1873), 83 U.S. 36, 74-75, 21 L. Ed. 394, 408.) Finally, the argument that the statute unconstitutionally delegates the power to fix wages on public works projects to private parties was rejected by this court in Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, and we see no reason to disturb our holding there.

A further question has been raised as to whether the county is required to take into consideration the number of hours worked at each rate before determining the prevailing general hourly rate. The act does not require the county to use any specific formula in calculating the generally prevailing wage. Rather, the county must simply ascertain the “generally current” or “most frequent” wage for each particular craft in public construction projects in the area. (Bradley v. Casey (1953), 415 Ill. 576, 583.) The county’s determination will not be upset unless it is not supported by evidence. (See Fox River Valley Carpenters v. Board of Education (1978), 57 Ill. App. 3d 345, 347-48; Union School District v. Commissioner of Labor (1961), 103 N.H. 512, 517, 176 A.2d 332, 336.) In Anderson, this court approved use of questionnaires and the division of total pay by total hours worked within the trade. The focus, however, should be on what is “most frequent” or “generally current.” (Bradley v. Casey (1953), 415 Ill. 576, 583.) We find no error in the method used by the county to ascertain the generally prevailing wage.

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

Affirmed.

REINHARD, J., concurs.

JUSTICE HOPE,

dissenting:

I respectfully dissent. I agree with the majority that a statute does not violate due process as long as it bears a rational relationship to a proper legislative purpose and is neither arbitrary nor discriminatory. However, I do not believe a legitimate purpose exists to the Prevailing Wage Act as amended; nor do I believe that the limiting phrase “on public works” bears a reasonable relationship to the actual and original policy behind the act.

The original Illinois Prevailing Wage Act was one of many prevailing wage acts throughout the country which was enacted during the Depression to combat the economic and social conditions of the times. (See Leader & Janero, Implied, Private Right of Action Under the Davis-Bacon Act: Closing Some Loopholes in Administrative Enforcement, 29 DePaul L. Rev. 793 (1980) (hereinafter Leader); see also Annot., 18 A.L.R.3d 944 (1968).) During that period, widespread unemployment increased the competition among contractors for government employment at a time when the government was required to award its contracts to the lowest bidder. (See Leader, at 795; Ill. Rev. Stat. 1929, ch. 24, par. 129.) In order to capture this limited market, some contractors were employing migrant workers and paying them wages far below the rate paid locally. Local workmen and contractors were unable to compete with this migrant labor force. (Leader, at 795-96; see also Annot., 18 A.L.R.3d 944 (1968).) The prevailing wage acts were attempts by the various State and Federal legislatures to resurrect the depressed labor market by prohibiting wage differentials from becoming a major competitive advantage in bidding on government construction projects. (Leader, at 795-96; Annot., 18 A.L.R.3d 944 (1968).) Thus, the acts required taxpayers to pay increased wages to public works employees so that public wages would equal those paid generally in the community. In Bradley v. Casey (1953), 415 Ill. 576, 585-86, 114 N.E.2d 681, the court found that under the Illinois act the increased burden on the taxpayer and contractor was reasonable “when balanced against the advantage to the state of having the work performed under conditions which give some assurance that the work will be completed without interruptions or delay by workmen of average skill.”

The legislature’s redefinition in 1961 of “prevailing wages” so as to limit it to wages paid only to public works employees had the corresponding effect of incorporating by reference the new definition into the policy provision of the Act. (Ill. Rev. Stat. 1961, ch. 48, pars. 39s—1, 39s—2.) Thus, when the statute is construed as a whole (see Jahn v. City of Woodstock (1981), 99 Ill. App. 3d 206, 425 N.E.2d 490), the current policy of the Act as amended provides for the equalization of wages paid for similar jobs within only the public works sector itself. The result is a separate rate of pay for public workers which is unresponsive to the market generally and is allegedly 20% to 30% higher than the wages paid in the private sector. The reasoning to give some assurance that the work would be completed without delay by workmen of average skill may have been an appropriate justification when the Act was interpreted to bring public workers up to standards in the private industry. However, where the legislation as amended and applied provides for wages roughly 30% over private industry in the same locality, can we say that this result is necessary to assure that the work will be completed diligently by workers of average skill? In other words, there is a rationale in paying like wages in a given locality, but does the same reasoning apply so that public employees be paid over and above workers in a given locality? I think not. I am cognizant of the principle of statutory interpretation that a law does not violate due process as long a it bears a rational relation to a proper legislative purpose and is neither arbitrary nor discriminatory. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538, 426 N.E.2d 822; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) However, I find no legitimate legislative purpose in creating a self-perpetuating financial arrangement.

I am mindful of the caveat that the courts should not substitute their judgment for that of the legislature. (Kidd v. Industrial Com. (1981), 85 Ill. 2d 534, 538, 426 N.E.2d 822; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 454, 389 N.E.2d 529.) However, just because the legislature has legislated does not mean that analysis must end. Otherwise no statute could ever be found to be arbitrary. (See United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 187, 66 L. Ed. 2d 368, 383, 101 S. Ct. 453, 465 (Brennan, J., dissenting).) I have difficulty determining what the purpose of the amendment to section 2 is, other than to lock in one class of worker to a higher wage scheme to the detriment of the taxpayer and those working in the private sector. Would it not be possible that a worker on a public project could receive many times what his counterpart in the private sector is receiving? If we say that the original intent of the act was to guarantee to the public the services of workers of average capability, this new amendment should guarantee the cream of the crop.

I therefore conclude that the original purpose of the act remains intact and that the limiting phrase “on public works” bears an unreasonable relationship to that purpose. (Ill. Rev. Stat. 1981, ch. 48, pars. 39s—1, 39s— 2; cf. Anderson v. County of Jo Daviess (1980), 81 Ill. App. 3d 354, 401 N.E.2d 265, where we found no unconstitutional delegation of authority in the phrase “on public works.”) The purpose of equalizing wages in the public and private sectors of the economy can never be achieved if in ascertaining the general prevailing wage public bodies may only inquire into wages paid on public works projects. I would therefore hold that section 2 of the Prevailing Wage Act, insofar as it purports to limit such an inquiry to only public works wages and results in payment of wages up to 30% higher than those in the private sector, is unconstitutional as both a denial of due process and equal protection.


author: JUSTICE NASH

text:
    THE PEOPLE ex rel. CITY OF NORTH CHICAGO, Plaintiff-Appellee, v. THE CITY OF WAUKEGAN, Defendant-Appellant.
    Second District
    No. 82—861
    Opinion filed July 5, 1983.

      Robert E. Lessman, of Diver, Boilman, Grach, Quade & Lessman, of Waukegan, for appellant.
    Richard J. Smith and William Rosing, both of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, city of Waukegan, appeals from a judgment of ouster entered on the pleadings in a quo warranto action brought by plaintiff, city of North Chicago. The issues we consider are whether North Chicago had standing to bring quo warranto; whether the trial court erred in entering judgment on the pleadings; and, whether Waukegan’s motion to amend its answer to the complaint should have been granted.

This case arises out of Waukegan’s effort to annex approximately 600 acres of farmland lying south of its border as requested by all of the owners and 51% of the electors residing therein. The territory consists of two parcels bounded on the north by Pulaski Drive and Waukegan city limits; on the east by U.S. Route 41; on the south by 22nd Street and on the west by the Milwaukee Road Railroad and Waukegan Road. As described by metes and bounds in the petition for annexation presented to Waukegan on February 22, 1982, pursuant to section 7—1—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7—1—8), the territory had a common boundary with Waukegan for approximately 2,360 feet. The notices required by section 7—1—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7—1—1) to be given to other interested governmental units were made by Waukegan and described the territory in the same manner as did the petition. Thereafter, on June 14, 1982, the city council adopted an ordinance annexing the territory as requested in the annexation petition. However, in section 1 of this ordinance, by which the territory was declared annexed, an error in the metes and bounds description created an 82-foot gap between Waukegan and the territory sought to be annexed. In section 2 of the ordinance, however, in which the territory was described for zoning and development purposes, it was correctly described so as to establish continguity with the city.

North Chicago thereafter presented a petition for leave to file a complaint in quo warranto, alleging the Attorney General and State’s Attorney had on request declined to do so. It also alleged that roadway portions of the subject property were within the corporate limits of the city of North Chicago and that it had a substantial private interest in the matter to preserve its corporate boundaries. Waukegan objected, asserting the petition failed to allege facts demonstrating a private interest in North Chicago sufficient to provide standing to institute quo warranto after the Attorney General and State’s Attorney had refused to do so. The trial court overruled defendant’s objections and granted North Chicago leave to proceed in quo warranto.

North Chicago’s complaint alleged generally that the disputed annexation unlawfully included within its boundaries portions of the city of North Chicago. It prayed that Waukegan be required to show by what right and authority it exercised jurisdiction over that territory and on its failure to justify or disclaim that it be ousted by the court from the exercise of authority over the territory. Waukegan answered the complaint setting forth, inter alia, the petition for annexation, notices, an annexation agreement with the owners, and the ordinance annexing the property which was adopted on June 14, 1982. It also raised as affirmative defenses the allegedly improper prior annexations of certain roads by North Chicago, and disclaimed any interest on the part of Waukegan to portions of U.S. Route 41.

Prior to a hearing on the merits of the quo warranto proceeding, Waukegan discovered the error in the description of the territory contained in its annexation ordinance and on October 18, 1982, its council adopted a new ordinance annexing the property in which the error was corrected to show that the subject property was in fact contiguous with Waukegan’s boundaries. When Waukegan then sought to amend its answer to incorporate the new annexation ordinance and a plat of annexation, North Chicago objected and moved for judgment on the pleadings. The trial court denied the amendment and entered judgment in favor of North Chicago on the grounds that under the June 14, 1982, annexation ordinance no portion of the subject property was contiguous to the city of Waukegan as is required by statute. (Ill. Rev. Stat. 1981, ch. 24, pars. 7—1—1, 7—1—8.) The judgment of ouster from which this appeal is taken was thereafter entered.

We consider first whether North Chicago has standing to bring an action under the quo warranto statute (Ill. Rev. Stat. 1981, ch. 110, par. 18—101 et seq.) to challenge the purported annexation by the city of Waukegan of territory located within the corporate limits of the city of North Chicago.

Section 18 — 102 of the Act provides:

“The proceeding shall be brought in the name of the People of the State of Illinois by the Attorney General or State’s Attorney of the proper county, either of his or her own accord or at the instance of any individual relator; or by any citizen having an interest in the question on his or her own relation, when he or she has requested the Attorney General and State’s Attorney to bring the same, and the Attorney General and State’s Attorney have refused or failed to do so, and when, after notice to the Attorney General and State’s Attorney, and to the adverse party, of the intended application, leave has been granted by the circuit court.” Ill. Rev. Stat. 1981, ch. 110, par. 18-102.

It has been established that quo warranto is the proper remedy to test the validity of an annexation by a municipality. (See, e.g., People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill. App. 3d 825, 833, 356 N.E.2d 806, appeal denied (1977), 65 Ill. 2d 580; People ex rel. Town of Richwoods v. City of Peoria (1967), 80 Ill. App. 2d 359, 363, 225 N.E.2d 48.) It has also been determined that only the Attorney General or State’s Attorney may apply for a writ of quo warranto in matters of purely public concern or interest and their discretion in.such matters is absolute. (People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 77-78, 432 N.E.2d 665; People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 113, 412 N.E.2d 718; People ex rel. Brooks v. Village of Lisle (1974), 24 Ill. App. 3d 432, 434, 321 N.E.2d 65.) In the present ease the Attorney General declined to institute the action as it “appears to be primarily of local interest” and the State’s Attorney also declined noting the dispute concerned the interests of the city of North Chicago and city of Waukegan and his refusal “will clear the way to enable you to file your own quo warranto action.”

A citizen may not, however, institute a quo warranto proceeding in his own interest unless it has been shown that a private interest has been invaded and adversely affected by the action sought to be challenged. (People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 77, 432 N.E.2d 665.) If a sufficient private interest is alleged, the fact that the wrong sought to be remedied may also have a public aspect would not be sufficient to require denial of a citizen’s request to bring a quo warranto action. People ex rel. Brooks v. Village of Lisle (1974), 24 Ill. App. 3d 432, 434, 321 N.E.2d 65; People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317, 323, 125 N.E.2d 637.

Waukegan relies primarily upon People ex rel. Brooks v. Village of Lisle to support its argument that North Chicago lacks standing to challenge by quo warranto the annexation of territory by Waukegan which is alleged to be within the corporate boundaries of North Chicago. That case must be distinguished, however, as there the court held that the city of Wheaton lacked standing to challenge the annexation of territory by the village of Lisle which was outside of Wheaton’s corporate limits, even though Wheaton claimed an interest in planning and zoning in that area. See also People ex rel. Durst v. Village of Germantown Hills (1977), 51 Ill. App. 3d 969, 367 N.E.2d 426; People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 115, 412 N.E.2d 718.

North Chicago offers People ex rel. City of Des Plaines v. Village of Mount Prospect (1975), 29 Ill. App. 3d 807, 331 N.E.2d 373, and People ex rel. Village of Northbrook v. City of Highland Park (1976), 35 Ill. App. 3d 435, 342 N.E.2d 196, as authority for its argument that a municipality has standing to institute a quo warranto proceeding where its territory has been annexed by another municipality. That was the remedy sought in these cases; however, it appears to have been undertaken without objection and the reviewing courts did not discuss the issue of standing.

We have concluded that when the Attorney General and State’s Attorney have declined to do so, a city whose territory is alleged to have been annexed by another city is authorized by section 18 — 102 of the quo warranto act to institute that proceeding. The relevant statutes bar annexation of territory by a municipality which is within the corporate limits of another municipality (see Ill. Rev. Stat. 1981, ch. 24, pars. 7—1—1, 7—1—8), and, as we have noted, quo warranto is the established remedy to test the validity of an annexation. This court also noted in People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 115, 412 N.E.2d 718, that “a municipality *** exercises both governmental and proprietory functions — they are concerned with both private or proprietory interests and public or governmental ones, either of which might be threatened by the annexation of territory it was exercising dominion over.” The interest, and responsibility, imposed upon a city for police, fire, street maintenance and other services over territory within its corporate limits is sufficient to permit it to challenge in quo warranto the purported annexation of a portion of its territory. Quo warranto uniquely permits resolution of competing rights of diverse parties as seen here. (Ill. Rev. Stat. 1981, ch. 110, par. 18—103.) We see no basis to deny standing to North Chicago for that purpose in this case and find that the trial court did not abuse its discretion in permitting North Chicago to proceed on its own relation. People ex rel. Koplin v. Village of Hinsdale (1976), 38 Ill. App. 3d 714, 718, 348 N.E.2d 483; People ex rel. Zimmerman v. Jones (1923), 308 Ill. 246, 249, 139 N.E. 403; People ex rel. Hettleman v. Board of County Commissioners (1968) , 102 Ill. App. 2d 310, 317, 243 N.E.2d 531, appeal denied (1969) , 40 Ill. 2d 578.

We next consider whether the trial court erred in its finding that the territory sought to be annexed was not contiguous to Waukegan and entering judgment on the pleadings ousting Waukegan.

There can be no justification for annexation absent statutory authority and one requisite for a valid annexation is that territory sought to be annexed is contiguous to the municipality. (People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 11, 417 N.E.2d 125; People ex rel. Johnson v. City of Waukegan (1976), 35 Ill. App. 3d 713, 717-18, 342 N.E.2d 480.) In City of Belleville, the supreme court also determined that territory must be contiguous at the time a petition for its annexation is filed. In the present case the trial court focused upon the description contained in the first annexation ordinance adopted by Waukegan in response to the petition for annexation presented to it. As we have noted, the ordinance contained an error in the legal description by which the territory sought to be annexed appeared to lack contiguity with the city. The trial court concluded that under the ordinance description the statutory requirement of contiguity was lacking and the annexation was fatally defective. In making its determination, the trial court relied upon In re Annexation to the City of Springfield (1967), 85 Ill. App. 2d 191, 228 N.E.2d 755, in which it was held that the proceeding for annexation of territory which was not contiguous at the time of filing of the petition could not be corrected by subsequent annexation of the intervening territory after the petition was filed. That is not the case before us, however, and North Chicago has not alleged in its motion for judgment on pleadings that the territory lacked contiguity as described in the petition for annexation. The trial court should have considered the description as seen in the petition for annexation initially presented to Waukegan.

We also conclude the trial court erred in refusing to permit Waukegan to amend its answer to the complaint in quo warranto by the second annexation ordinance adopted by Waukegan in which the description error is said to be corrected. In People ex rel. Reid v. Zellar (1906), 224 Ill. 408, 79 N.E. 697, the incorporation of a drainage district was challenged in quo warranto. The issue considered was whether the district could amend its records after commencement of the action to show what was actually done. The court held that a public body may amend the records of its actions to conform to the facts in order to prevent public injustice. A public body establishes its acts by its records and, in cases of error or omission, may amend them. Cf. In re Annexation to Village of Plainfield (1975), 25 Ill. App. 3d 1026, 1033, 323 N.E.2d 841.

The parties to this appeal have raised other issues in their briefs which we do not address as they were not considered by the trial court in entering judgment on the pleadings. We hold only that North Chicago may institute the quo warranto proceeding and that the trial court erred in denying Waukegan’s motion to amend and entering judgment on the pleadings.

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

Reversed and remanded.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAROL E. AUSTIN, a/k/a Carol Parker, Defendant-Appellant.
    Second District
    No. 81—884
    Opinion filed July 5, 1983.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Carol E. Austin, a/k/a Carol E. Parker, was convicted of retail theft (Ill. Rev. Stat. 1981, ch. 38, par. 16A—3(a)), and was sentenced to a one-year term of probation commencing December 16, 1980. Thereafter, the circuit court found pursuant to the State’s petition, that defendant had breached certain conditions of her probation, in that she committed a subsequent offense of retail theft (Ill. Rev. Stat. 1981, ch. 38, par. 16A—3(c)), and had failed to report as scheduled to her probation officer. Defendant’s probation was revoked, and defendant was sentenced to serve a term of 120 days’ imprisonment in the county jail. Defendant appealed.

On May 13, 1980, a preliminary hearing was held concerning four separate charges, including the present retail theft charge, which were then pending against the defendant. Mr. Craig Peterson, of the Winnebago County Public Defender’s Office, was appointed to represent defendant on the present charge at the May 13 preliminary hearing.

During the May 13 hearing, one of the four charges against defendant was dismissed on the State’s motion. A trial date was set on the remaining charges and defendant was placed on a $3,000 recognizance bond. The record does not reflect whether attorney Craig Peterson took part in further activities below as counsel for defendant. However, it is clear that the State’s May 29, 1981, petition to revoke defendant’s probation was heard and determined by the Honorable K. Craig Peterson, a judge of the circuit court in Winnebago County. On appeal, defendant has moved the court to take judicial notice that the Honorable K. Craig Peterson was the same person who appeared on defendant’s behalf at the May 13, 1981, preliminary hearing. The State filed objections to the defendant’s motion, and this court entered an order on February 1, 1983, which ordered the defendant’s motion and objections thereto to be taken with the case.

The facts adduced at the probation revocation hearing can briefly be set forth. An employee of the Farm & Fleet store in Rockford, Illinois, was asked to intercept defendant and her companion as they left the store, and inquire regarding a pair of wire snips. As the parties walked to the shelf where defendant allegedly placed the snips, the employee observed defendant remove a pair of wire snips from her purse, and hand them to the store manager. The wire snips in question was ordinarily displayed for sale on a rack within the store.

Both the defendant and her companion testified for the defense. Both witnesses testified that defendant found the wire snips on the shelf where she had previously laid them. Defendant denied that she had placed the snips in her purse.

The State also adduced evidence that defendant had failed to keep many scheduled appointments with her probation officer. Defendant attempted to explain her numerous failures to appear before that officer, as attributable to alleged problems with her mail delivery, as well as personal illness.

The circuit court found that the State had proved both counts of its petition to revoke defendant’s probation by a preponderance of the evidence. Thereafter, an order terminating defendant’s probation was entered.

A resentencing hearing was held September 22, 1981, during which defendant was sentenced to 120 days in jail. Defendant was not personally present at that hearing, due to her pregnancy. Neither was a court reporter present during that hearing.

After several continuances, a hearing was held November 6, 1981, during which the court granted defendant’s motion to stay issuance of the mittimus pending appeal. Then, the circuit court invited the parties to reiterate their positions respecting defendant’s sentence, so that defendant could be personally apprised of the reasons for her sentence, and also so that the positions of the parties and the court regarding the sentence could be “transcribed for appeal.” The circuit court reiterated in detail its reasons for imposing jail time on the defendant, and it was obvious from the court’s comments that it intended that defendant actually serve her 120-day sentence in jail. However, the record is devoid of a written order, or express oral comment of the circuit court, which would deny defendant sentence credit for the time she spent on probation. In fact, there is no indication in the record that the subject of credit for time served on probation was ever raised by any of the parties or the court. If such credit is extended, defendant will serve no time in jail as a result of the circuit court’s 120-day sentence, as the period between her admission to probation, December 16, 1980, and the filing of the State’s petition to revoke her probation, May 29,1981, exceeded 120 days.

We note two further facts which are material to defendant’s appellate contentions. First defendant moved for a directed finding at the close of the State’s proofs below, on the ground that the State failed to prove that defendant committed the offense charged (Ill. Rev. Stat. 1981, ch. 38, par. 16A—3(c)). The substance of this challenge to the State’s proofs is repeated in the defendant’s appellate brief. Second, defendant filed timely notice of appeal on October 6, 1981, exactly 30 days before the parties and the court restated their respective positions regarding defendant’s sentence at the November 6,1981, hearing.

Defendant’s Motion to Take Judicial Notice

We take judicial notice of the fact that public defender Craig Peterson was the same Honorable K. Craig Peterson who, as a judge of the circuit court of Winnebago County, presided over the probation revocation hearing held below. (III Martindale-Hubbell Law Directory 333 (113th ed. 1981).) A court is presumed to know its officers, and all public officials in civil affairs within its jurisdiction. (City of Rockford v. Mower (1913), 259 Ill. 604, 609; Thompson v. Haskell (1859), 21 Ill. 215, 216; 1 Card, Illinois Evidence Manual 51 (2d ed. 1979).) Not only may this court notice the Honorable K. Craig Peterson’s position on the bench within the bounds of the Second Judicial District (People v. McCullough (1940), 305 Ill. App. 269, 271-72, 27 N.E.2d 473, 475), but the court may also notice the judge’s former civil office as a public defender (City of Rockford v. Mower (1913), 259 Ill. 604, 609), or his status as a member of the bar and officer of the court (Ferris v. Commercial National Bank (1895), 158 Ill. 237, 241).

The State is incorrect in its assertion that the record contains an insufficient basis upon which judicial notice of the identity of the Honorable K. Craig Peterson can be taken. Nor was defendant required to support her motion with affidavits pursuant to Supreme Court Rule 361(a) (87 Ill. 2d R. 361(a)). The circuit court judge’s participation in this case is clearly established in the record, and this court does not require further information submitted by way of affidavit, to properly notice the identity of a court officer. Defendant’s motion is allowed, and the State’s objection thereto is overruled.

New Probation Revocation Hearing

Illinois Supreme Court Rule 67(c) provides:

“A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case.” (87 Ill. 2d R. 67(c).)

Defendant, in reliance on Supreme Court Rule 67(c) contends that the circuit court committed reversible error when it failed to recognize its prior representation of defendant on the instant charges, and consequently, failed to recuse itself from this case on its own motion. Defendant accurately notes that the circuit judge “acted as counsel” for defendant, for purposes of Supreme Court Rule 67(c), when the judge, who was then a public defender, appeared on defendant's behalf at the May 13, 1980, preliminary hearing in this cause. (See People v. Burnett (1979), 73 Ill. App. 3d 750, 754, 392 N.E.2d 235, 238 (construed plain meaning of phrase “acted as counsel” found in Supreme Court Rule 67(c)).) Defendant’s bond and trial date on the underlying retail theft charge was set at the May 13, 1980, hearing. It is possible, and indeed likely that defendant had additional discussions with Public Defender Peterson relating to the instant charges, following the May 13, 1980, hearing. Thus, it is clear from the record that the provisions of Supreme Court Rule 67(c) were applicable to this case. An attorney/client relationship had formed between defendant and Public Defender Peterson. Furthermore, that relationship was established vis-a-vis the instant charges, because a probation revocation hearing is merely a review of the original sentence of probation granted upon the underlying substantive criminal charge. (See People v. Estes (1977), 46 Ill. App. 3d 339, 341, 360 N.E.2d 1165, 1166-67.) Consequently, defendant’s probation revocation hearing should have been conducted before another judge. The issue on appeal is whether Judge Peterson’s failure to recuse himself sua sponte pursuant to Supreme Court Rule 67(c), necessitates that the judgment entered by Judge Peterson must be vacated, and defendant accorded a new probation revocation hearing.

The State, in support of the judgment below, suggests that Supreme Court Rule 67(c) does not extend a private right to criminal defendants, but rather, speaks solely to the ethical responsibilities of judicial personnel. The State asserts that the sole consequence of a violation of Supreme Court Rule 67(c) is set forth in Supreme Court Rule 71 (87 Ill. 2d R. 71); that is, possible disciplinary action against the judge. Although no case authority has been located on this point, we reject the State’s argument.

Although Supreme Court Rule 67(c) does primarily address the ethical responsibilities of the Illinois judiciary, the rule also reflects a deeper policy judgment that a party, in fairness, should not be tried before a judicial officer with whom he had a prior attorney/client relationship in that same cause. The State contends that the involvement of Public Defender Craig Peterson with defendant in connection with the initial theft charge was so minimal that defendant was not prejudiced by the judge’s involvement in the probation revocation proceeding. However, the decisive factor for purposes of this issue is the effect of the appearance rather than a demonstration of impropriety below. Mere representation of a defendant, although brief, is sufficient to require a judge’s recusal under Supreme Court Rule 67(c).

Regardless of whether Supreme Court Rule 67(c) itself prescribes a private remedy for its violation, it nonetheless remains that a situation such as the one involved here gives rise to the appearance of impropriety, although no improper motive on the part of any party here is evident from the record. A recent American Bar Association draft contained the following commentary, which is relevant on this point:

“Beyond compliance with local statutes, the trial judge has an obligation to recuse himself whenever necessary to protect the right of the accused and of the public to an impartial trial. Canon 3C(1), Code of Judicial Conduct (Final Draft, May 1972). The appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of bias or prejudice. [Citation.]
Some situations requiring recusation are obvious, such as those involving relationships of consanguinity or affinity with the accused, the prosecuting witness, or other key figures in the trial. [Citations.] Participation in the investigation of the case or in commencement of the prosecution should disqualify newly-appointed judges who had a prior prosecutorial role. [Citations.] More subtle and more difficult of resolution are those cases in which the connection between the judge and other participants is remote and tenuous. Nothing more can be suggested by way of guidance than that there be a concerned interest in ascertaining whether the public impression will be favorable, even though the judge is convinced of his own impartiality. The question never centers on the reasonableness or fairness of the image which is being created, but rather on the actual character of that image. [Citation.]” (A.B.A. Standards, The Function of the Trial Judge 35-36 (Approved Draft 1972).)

Defendant has directed the court’s attention to situations in which the policy underlying Supreme Court Rule 67(c) has been cited by analogy, in support of the reversal of an administrative adjudication, where the litigant was tried before a potentially partial tribunal. (See Mank v. Board of Fire & Police Commissioners (1972), 7 Ill. App. 3d 478, 483-84, 288 N.E.2d 49, 53.) Moreover, it is implicit in the few authorities which have construed Supreme Court Rule 67(c), that a violation of that rule might result in reversible error. (See People v. Lipa (1982), 109 Ill. App. 3d 610, 612-13, 440 N.E.2d 1062, 1064; People v. Burnett (1979), 73 Ill. App. 3d 750, 754, 392 N.E.2d 235, 238.) It is concluded on the basis of all of these materials that a violation of Supreme Court Rule 67(c), in a proper case, can amount to a reversible error. We do not adopt the State’s suggestion that judicial disciplinary procedures form the sole sanction which may accompany a violation of Supreme Court Rule 67(c).

The question which remains is whether defendant has waived her objection to the failure of the circuit court to recuse itself by not raising such contention below. Ordinarily, an appellant may not prevail upon an issue raised for the first time in the appellate court. (See City of Elgin v. Rippberger (1978), 59 Ill. App. 3d 92, 93, 375 N.E.2d 170, 171-72; Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637, 640, 350 N.E.2d 242, 245.) However, both the right of defendant to a trial before an impartial tribunal, and the duty of a court to avoid the appearance of impropriety, leads us to relax the waiver rule in this case, and grant defendant a new probation revocation hearing before a different judge pursuant to our authority under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)).

The State further suggests that a defendant might attempt to obtain the best of both worlds by failing to seek a judge’s recusal at trial, and then later appeal that judge’s ruling based upon Supreme Court Rule 67(c), should that ruling be unfavorable. If the record did reflect such conduct on the part of defendant, then we conceivably could find that defendant invited error and knowingly waived her right to have the probation revocation hearing adjudicated before another judicial officer. In this case, there is no indication in the record that either defendant, or the circuit judge, was cognizant of the judge’s prior representation of defendant in this cause. Nor was defendant particularly experienced with court procedure such that this court might presume defendant’s awareness of her right to be tried before another circuit judge. We decline to apply the waiver rule to this issue. Defendant should receive a new probation revocation hearing before another judge.

Mischarging

Because the other issues raised by defendant may arise from the new hearing, we will review them. Count I of the State’s petition to revoke defendant’s probation alleged that defendant committed the offense of retail theft in that she transferred a set of wire snips “from the container in or on which said merchandise was displayed to another container,” with the intention of depriving Farm & Fleet of the full retail value of that merchandise, in violation of section 16A—3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16A—3(c)). In essence, defendant contends that the State mischarged her under section 16A—3(c) of the retail theft statute. Defendant implicitly concedes that her conduct below could have been charged under the more general subsection of the retail theft statute, section 16A—3(a). However, defendant insists that she was not proved guilty of commission of section 16A—3(a) as that section has been construed by defendant. Defendant’s contention is not meritorious.

According to defendant, section 16A—3 was intended to address only the situation where a shoplifter has taken one item of store merchandise from a display (which defendant apparently concedes is a “container” under the statute), and placed that item in her purse, which according to defendant, does not qualify as a proper “container” under section 16A—3(c).

However, in the absence of ambiguity, courts are to accord the words of a statute their “plain, ordinary and common meaning.” (Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569, 420 N.E.2d 472, 473; People v. Rogers (1980), 86 Ill. App. 3d 1092, 1093-94, 408 N.E.2d 769, 770.) Here, section 16A — 3(c) does not appear to be ambiguous on its face. A purse is clearly a “container,” which is used as such in day-to-day life. Section 16A—3(c) does not expressly differentiate between “containers” owned by the merchant, and those carried into the store by shoplifters. Nor is such a distinction apparent, or rationally justified by reference to the statutory scheme underlying section 16A—3(c). Defendant is mistaken in her assertion that section 16A—3(c) would be rendered superfluous by section 16A—3(a). Defendant could have been charged under either provision under the circumstances of this case. However, defendant completed the offense provided by section 16A— 3(c) when she placed the wire snips in her purse. In contrast, the offense specified in section 16A — 3(a) requires commission of an additional element: that the shoplifter take possession of, carry away, transfer, or cause to be carried away or transferred the merchandise in question. Thus, sections 16A — 3(a) and (c) are separate offenses, completed in different manners at separate times. The fact that defendant was chargeable under both sections under the circumstances of this case, does not necessitate a finding that section 16A — 3(c) is superfluous to subsection (a), or require the adoption of defendant’s strained construction of section 16A — 3(c).

Furthermore, defendant’s probation revocation and sentence could be affirmed based upon her unchallenged failure to report to her probation officer as scheduled. (Compare People v. Freeman (1964), 49 Ill. App. 2d 464, 467, 200 N.E.2d 146, 147, with In re G. L. C. (1979), 74 Ill. App. 3d 411, 412-13, 393 N.E.2d 113, 114.) It is noted that defendant’s reliance on the case of People v. Guppy (1975), 30 Ill. App. 3d 489, 333 N.E.2d 576, is misplaced. Guppy involved a direct appeal of defendant’s convictions and sentence, where some but not all of defendant’s convictions were reversed on appeal. The present case, in contrast, is governed by a different rule applicable to the review of a revocation of probation. See, e.g., People v. Freeman (1964), 49 Ill. App. 2d 464, 467, 200 N.E.2d 146, 147.

Credit for Time Spent on Probation

As her final contention, defendant requests that this court should, in the event of remand, direct that the mittimus provide that defendant receive credit against her jail sentence for time successfully spent on probation. Defendant’s request is denied.

It is true that defendant is entitled to the sentence credit claimed, because the circuit court below did not order that such credit would be denied. (People v. Hollingsworth (1982), 89 Ill. 2d 466, 467-68; People v. Hills (1980), 78 Ill. 2d 500, 508; People v. Stiger (1979), 69 Ill. App. 3d 188, 191-92, 387 N.E.2d 55, 57-58; Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(h).) Nonetheless, there is no indication in the record that defendant will be denied such credit upon remand. The issuance of mittimus from the circuit court was stayed, pending resolution of this appeal. Thus, there exists no mittimus below either to “correct” or enlarge. Nor does there exist a purported nunc pro tunc order respecting defendant’s sentence credit entitlement. Defendant’s request for relief of this nature is simply premature.

The State’s suggestion that defendant has waived her right to seek sentence credit, through her failure to provide this court with an accurate record upon which to review her sentence, is meritless. Defendant has not waived a claim of error respecting her sentence, and therefore, the State’s citation of authority concerning an appellant’s duty to bring up the appellate record, has no application here. Moreover, the State freely participated in the November 6, 1981, hearing, a purpose of which hearing was to set forth a transcript of the circuit court’s sentencing determination, and the reasons for such determination, for purposes of appeal. If indeed waiver is apparent from the record, such waiver occurred November 6, 1981, and the party aggrieved by such waiver would be the State.

Nor is the State persuasive in its contention that defendant is not entitled to receive sentence credit under section 5 — 6—4(h), inasmuch as it was obvious that the circuit court intended defendant to serve jail time. The Illinois Supreme Court rejected that exact argument in its recent opinion in People v. Hollingsworth (1982), 89 Ill. 2d 466.

The judgment of the circuit court of Winnebago County is affirmed in part, reversed in part and remanded for a new revocation hearing before a different judge.

Affirmed in part, reversed in part and remanded.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CYRIL ELBUS, Defendant-Appellee.
    Fourth District
    No. 4—82—0750
    Opinion filed July 5, 1983.

      John B. Leonard, State’s Attorney, of Mt. Sterling (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No appearance for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an interlocutory appeal from rulings of the circuit court of Brown County. Defendant Cyril Elbus was charged by complaint with seven counts of failure to provide for sanitary disposal of domestic sewage on real estate owned by him (Ill. Rev. Stat. 1981, ch. 111½, par. 116.306), a misdemeanor (Ill. Rev. Stat. 1981, ch. 111½, par. 116.319). Before the trial began, the judge ruled that the State could not use defendant’s prior testimony in a separate juvenile proceeding as direct evidence. After the jury was impaneled and heard testimony of several witnesses, the trial court suppressed correspondence between the Department of Public Health (Department) and defendant, photographs of the scene of the offense, and testimony thereon as a discovery sanction. This appeal was then brought by the State pursuant to Supreme Court Rule 604. (87 Ill. 2d R. 604; People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509.) The jury was discharged.

The appellee has not filed a brief with this court and, therefore, if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record of judgment, the trial court may be reversed. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) We affirm in part; reverse in part; and remand.

A family lived in a trailer on defendant’s property. The trailer’s sewage drained from a pipe beneath the trailer into a five-gallon bucket. No other sewage disposal system was provided. On February 9, 1982, Merle L. King, regional engineer for the Department, contacted Elbus by certified letter, advising him that he was required to provide proper sewage disposal on the property and requesting that he contact the Department within 10 days to discuss a temporary solution. Elbus wrote back that he and his tenant were going to fix the toilet facilities as soon as weather conditions permitted. King then wrote Elbus informing him that the sewage system must be installed according to the Private Sewage Disposal Act code and provided a copy.

On April 30, 1982, King wrote Elbus requesting that he contact the Department within five days and begin construction of a septic system within 20 days. On May 20, 1982, King wrote Elbus and requested that he begin construction of a properly installed private sewage disposal system before June 1, 1982, and advised him that the matter would otherwise be referred to the legal department for necessary action. On June 21, 1982, criminal complaints against defendant were filed.

We first consider the judge’s ruling on the State’s use of Elbus’ prior testimony in a proceeding involving his tenants under the Juvenile Court Act. Elbus testified voluntarily on behalf of his tenants that he had received several letters from the Department and had made a written reply, that he was in the process of installing a septic system, and that installation would be completed when weather permitted. Elbus was subsequently served as defendant in this case. The trial judge ruled that defendant, as a witness in a juvenile court proceeding, had a right to rely on the confidentiality of the proceeding. The judge limited the use of defendant’s prior testimony to impeachment. This ruling was not error. The confidentiality of proceedings under the Juvenile Court Act is secured by section 2—10 of that Act. Ill. Rev. Stat. 1981, ch. 37, par. 702—10.

In the jury trial, the State sought to elicit testimony regarding the contacts between the Department and defendant about the sewage disposal matter and photographs taken at the scene of the offense. Defendant objected that the State, responding to a pretrial discovery request, denied possession of any physical evidence. The trial judge sustained defendant’s objections. Outside the presence of the jury, the State made an offer of proof.

The trial judge correctly concluded that the supreme court rules for discovery in criminal cases are not applicable in misdemeanor cases. The State is required to furnish defendants in misdemeanor cases with a list of witnesses (Ill. Rev. Stat. 1981, ch. 38, par. 114—9), any confession of defendant (Ill. Rev. Stat. 1981, ch. 38, par. 114—10), and evidence negating the defendant’s guilt (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194). (People v. Schmidt (1974), 56 Ill. 2d 572, 309 N.E.2d 557.) Whatever authority a trial court may have had to order pretrial discovery, absent specific rules, is not relevant after adoption of the supreme court rules. People v. Williams (1981), 87 Ill. 2d 161, 429 N.E.2d 487.

The court nevertheless suppressed the evidence as a discovery sanction:

“However, in this case the prosecution, instead of objecting to their motion for discovery, responded to it and said the prosecution is not in possession of any physical evidence. Now, 'i have a tendency to agree with the State’s Attorney’s concept that physical evidence may be something different than photographs, documents, and tangible objects, but I don’t find the words ‘physical evidence’ in the discovery rules at all, but I do find them in some of the cases that have cropped up, and it seems to me that although it is a broad term it should be interpreted here to encompass these documents that are sought to be introduced. Because the answer was that the prosecution is not in possession of them I think this is misleading to the defendant and I think it is only fair that I impose the sanction of not letting the People introduce the evidence of the documents, the photographs, or any testimony that these documents exist ***.”

We find that there was no discovery violation. Defendant made a discovery request for a witness list, any confessions and witnesses thereto, any physical evidence relating to this case in the State’s possession, material or information known to negate defendant’s guilt, and police reports. The suppressed evidence does not fall within these categories.

First, the only statements offered by the prosecutor were defendant’s February 1982 letter to the Department, his testimony in the juvenile proceedings, and statements made to an employee of the Department of Children and Family Services (DCFS) in a telephone conversation. A confession is a voluntary acknowledgement of guilt after the perpetration of an offense, and it does not embrace mere statements or declarations of independent facts from which guilt may be inferred, while an admission is any statement or conduct from which guilt of the crime may be inferred but from which guilt does not necessarily follow. (People v. Stanton (1959), 16 Ill. 2d 459, 158 N.E.2d 47.) Defendant’s letter preceded the date of the charged offense; his testimony followed the date of the charged offense. As to the former, defendant said only that he and his tenant would fix the toilet facilities when weather permitted; as to the latter, the court found that there was substantial compliance with the discovery. We do not address the question of whether statements made to the DCFS employee, Beth Noble, constitute a confession since the record does not indicate the statements made, the nature of the employee’s position, or the date of the conversation.

Second, neither the correspondence between the Department and defendant nor the photographs of the scene of the offense had to be supplied on a general discovery request for “any physical evidence.” A defendant’s discovery request may be too indefinite or too comprehensive. (2 L. Orfield, Criminal Procedure Under the Federal Rules sec. 16.38 (1966).) Supreme Court Rule 412(a)(v) states that “any books, papers, documents, photographs or tangible objects” are discoverable. 87 Ill. 2d R. 412(a)(v).

In this context, “physical evidence” is a term of art. A request for physical evidence is a request for tangible objects, a distinct category under the rule. It does not encompass all that is “physical.” Physical evidence generally refers to items taken from the crime scene. Although this may include correspondence and photographs found at the scene of the offense, it does not include all correspondence and photographs. In this case, the correspondence passed between the parties prior to the charged offenses. Likewise, a request for “any physical evidence” is not sufficiently specific to require production of these photographs. People v. Fitzgerald (1977), 55 Ill. App. 3d 626, 370 N.E.2d 1207.

Third, defendant’s counsel was furnished with a copy of the transcript of the juvenile proceedings in which Elbus testified. The transcript contains numerous references to correspondence between the Department and defendant. Defense counsel was thus aware, prior to trial, that he did not possess all material information to which he claimed entitlement under his discovery request. He proceeded to trial and may not complain of surprise as to the correspondence or its contents. People v. Curtis (1977), 48 Ill. App. 3d 375, 362 N.E.2d 1319.

Finally, if this had been a discovery violation, suppression of the evidence would have been too harsh a sanction. Such sanctions as may be used must necessarily be designed and structured to obtain pretrial discovery. An order suppressing the evidence has the effect of decreasing the equality necessary for a fair trial. It is a sanction which affects the prosecution and not the prosecutor who fails to provide discovery. People v. Endress (1969), 106 Ill. App. 2d 217, 245 N.E.2d 26; People v. Petru (1977), 52 Ill. App. 3d 676, 367 N.E.2d 980.

For these reasons we reverse that part of the order of the circuit court which suppressed the correspondence, the photographs, and tes- . timony pertaining thereto, and remand the cause to the trial court for proceedings not inconsistent with our order.

Affirmed in part; reversed in part; and remanded.

WEBBER, P.J., and MILLS, J., concur.