author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY HATCH, Defendant-Appellant.
    Second District
    No. 81—400
    Opinion filed November 24, 1982.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

After a bench trial upon stipulated evidence, defendant, Gary Hatch, was convicted of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1) and received an extended-term sentence of 10 years’ imprisonment. On appeal, defendant contends that he was denied his statutory right to a speedy trial either because he was not tried within 120 days of being taken into custody of Du Page County authorities or because he was not tried within 160 days from the date of his demand for speedy trial filed at a time when he was on bond.

Defendant was arrested in Du Page County for burglary on September 27, 1980, and was released on bond that same day. On October 9, 1980, defendant’s privately retained counsel filed an appearance and a written speedy-trial demand on behalf of the defendant. On that date probable cause was found at the preliminary hearing and his arraignment was set for November 7, 1980. Defendant failed to appear for his November 7, 1980, arraignment, and the court ordered that defendant’s bond be forfeited and issued a warrant for defendant’s arrest. Thereafter, defendant was arrested in Kane County and was charged by the Kane County State’s Attorney for an unrelated felony offense alleged to have occurred in Kane County on September 10, 1980. Defendant appeared in the Du Page County circuit court on December 12, 1980, pursuant to a writ (presumably a writ of habeas corpus ad prosequendum although the writ is not in the record) while still in custody of the Kane County authorities. At that time, defendant was arraigned on the Du Page County burglary charge, the public defender was appointed to serve as counsel for defendant, and a discovery schedule and a trial date of February 24, 1981, were set. Defendant was then returned to Kane County where he was held until January 22, 1981, when proceedings there terminated upon his conviction of theft under $150 and his sentence of 70 days in the Kane County jail with credit for time served.

Defendant was brought before the circuit court of Du Page County on January 23, 1981, at which time his bond was revoked. The defendant was actually returned to Du Page County on January 22, 1981. On January 23, 1981, the Illinois Department of Corrections (DOC) filed a parole violation warrant with Du Page County officials. Defendant was apparently released on that date to the DOC in whose custody he remained until February 27, 1981, when he next appeared in the Du Page County circuit court. On February 27, 1981, his trial was continued to April 7, 1981, and later again continued until April 20, 1981, both on the court’s motion. On April 16, 1981, defendant filed four motions for discharge, based on the alleged violation of defendant’s statutory right to a speedy trial. The trial court denied defendant’s motions and identified January 23, 1981, as the date on which the 120-day speedy-trial term began to run. Defendant was thereupon tried by the court upon stipulated evidence, found guilty, and subsequently sentenced to an extended term of 10 years to run consecutive to “any sentence that he has been given prior to this date or is serving prior to this date.”

Defendant contends that he was in custody in Du Page County for purposes of the 120-day statutory speedy-trial term (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a)) from the date of his arraignment on December 12, 1980, for the Du Page County burglary charge. He argues that even though his case was not terminated in Kane County until January 22, 1981, there was no obstacle to Du Page County’s prosecution once he had been brought back for arraignment in Du Page County and a trial date had been set. The State’s position is that the 120-day statutory speedy-trial term commenced in Du Page County on January 22, 1981, the date on which the Kane County proceedings were terminated by defendant’s plea of guilty and sentencing, and on which defendant was returned to Du Page County.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a)) provides, in pertinent part, that “[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody ***.” Defendant maintains that the crucial issue is whether any actual obstacle to his prosecution exists in a particular county, citing our decision in People v. Hollowell (1979), 78 Ill. App. 3d 515, 397 N.E.2d 245, which cites our opinion in People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225. He contends that on December 12, 1980, he was before the Du Page County circuit court and no obstacle prevented his prosecution there despite the fact that his prosecution had not terminated in Kane County.

This argument misses the mark in interpreting our holdings in Kerley and Hollowell as well as being at odds with other appellate decisions which have addressed the issue of when a defendant is in custody for purposes of the commencing of the 120-day speedy-trial term under circumstances where a defendant simultaneously faces charges pending from two counties. It is clear in Kerley that the defendant therein commenced being in custody on the Du Page County detainer warrant upon the termination of the Cook County proceedings by the entry of the judgment of conviction and sentence. (72 Ill. App. 3d 916, 919, 391 N.E.2d 225.) It is in the context of the termination of the Cook County proceedings that we observed that no obstacle existed to trying the defendant in Du Page County and he could be considered in custody in Du Page County. Hollowell does not support any broader application of what we said in Kerley. We recently restated this position in People v. Wentlent (1982), 109 Ill. App. 3d 291, 297, 440 N.E.2d 296, therein citing additional appellate court decisions following this same reasoning, as follows:

“Where, however, defendant is in custody awaiting trial in one county and charges are pending against him in another county, then a different rule applies. In that situation, the 120-day period does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges. (People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710; People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225; People v. Karr (1979), 68 Ill. App. 3d 1040, 386 N.E.2d 927; People v. Clark (1968), 104 Ill. App. 2d 12, 244 N.E.2d 842.)”

Defendant seeks to escape application of this principle by the fact that he was brought by writ before the circuit court in Du Page County, arraigned, and had his trial date set. Notwithstanding the fact that he was thereafter returned to Kane County for continuation of the proceedings there, he maintains there was no obstacle to Du Page County’s prosecution of him. In a closely similar factual situation to the case at bar, the appellate court in People v. Gardner (1982), 105 Ill. App. 3d 103, 433 N.E.2d 1318, held that the 120-day term began to run on that date of the termination of the proceedings in Jackson County despite the fact that the defendant therein had been delivered to Williamson County pursuant to a writ of habeas corpus ad prosequendum, appeared before the court, and then returned to Jackson County for the conclusion of its prosecution. (105 Ill. App. 3d 103, 109-12, 433 N.E.2d 1318.) We approve of the holding in Gardner and find it is applicable to the facts here.

Defendant, herein, as in Gardner, was in custody and under prosecution in one county, was brought to a second county by writ prior to the termination of proceedings in the first county, appeared before the court in the second county, and returned thereafter to the first county until the proceedings there were terminated. Defendant attempts to distinguish Gardner by pointing out that he was initially arrested in Du Page County on September 27, 1980, before Kane County acquired custody of him, whereas in Gardner the defendant was not initially arrested in Williamson County. He maintains that under these circumstances he comes within the rule prescribed in People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242.

In Fosdick, the defendant was first charged with a Champaign County crime, then was arrested in De Witt County on other charges. He later escaped from De Witt County, and was eventually apprehended in Champaign County by F.B.I. agents acting under the authority of a Federal fugitive-from-justice warrant obtained by De Witt County. While in the Champaign County jail, the defendant was arrested on the Champaign County warrant, taken before a magistrate and served with a copy of the original Champaign County complaint. On the next day, the complaint was dismissed and another complaint was filed alleging the same charge based upon the same conduct. Another warrant was issued but not served upon the defendant who was then returned to De Witt County and tried and convicted of other charges. The supreme court held that the defendant was “in custody” of Champaign County from the date of the service of the Champaign County arrest warrant. The 120-day period did not begin on a later date when De Witt County, having finished with the defendant, turned him back over to Champaign County in order to allow the latter county to proceed against him. The court reasoned that such a voluntary dismissal of the charge by Champaign County without notice to the defendant cannot be used to evade the provisions of the 120-day rule. 36 Ill. 2d 524, 528, 224 N.E.2d 242.

In the instant case, defendant was originally arrested in Du Page County. While on bond for the Du Page County burglary, he was later arrested in Kane County arising out of an unrelated charge. At this point, unlike in Fosdick, Du Page County had not voluntarily given him over to another county and dismissed its charges, but, rather, Kane County had acquired custody over defendant through their own independent action arising from a separate charge in its county. In this context, the facts here are distinguishable from those in Fosdick. Defendant’s subsequent appearance by writ before the circuit court of Du Page County on December 12, 1980, for a limited purpose, does not, as held in Gardner, mean that he was in the custody of Du Page County any earlier than the termination of the Kane County proceedings. See People v. Gardner (1982), 105 Ill. App. 3d 103, 111, 433 N.E.2d 1318.

Were we to hold otherwise and conclude that defendant’s limited appearance in Du Page County, pursuant to a writ, for arraignment and a trial setting commenced the 120-day term, then the 120-day term would be running simultaneously in Du Page and Kane counties. Not only would this interpretation create administrative problems if simultaneous separate prosecutions were required within 120 days, but it would also discourage a second county from initiating the preliminary steps in a criminal proceeding thereby ultimately causing some delay in the subsequent trial in the second county which would inure to the defendant’s detriment. We cannot interpret section 103 — 5(a) as requiring such a result. Moreover, such an interpretation would certainly be anomalous in the light of section 103 — 5(e) which allows an additional 160 days to try a defendant after judgment relative to the first charge when that defendant is simultaneously in custody upon more than one charge pending against him in the same county. (See Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(e).) For the foregoing reasons, we conclude that the defendant’s appearance for a limited purpose on December 12, 1980, in Du Page County, pursuant to a writ, prior to the termination of the proceedings in Kane County did not render him in custody to trigger the 120-day speedy-trial provision. Instead, the 120-day term began on January 22, 1981, upon his return from Kane County upon the termination of the proceedings there. Since defendant’s trial commenced on April 23, 1981, he was tried within 120 days of January 22, 1981, in compliance with section 103 — 5(a).

Defendant next contends that he was not tried within 160 days of his demand for a speedy trial made on October 9, 1980, while he was on bond for the Du Page County burglary charge. The State maintains that since defendant’s bond was later revoked for his failure to appear in court on November 7, 1980, the statutory 160-day speedy-trial term which pertains only to those on bail or recognizance is inapplicable under the facts present in this case. Alternatively, the State argues that even if the 160-day rule did apply here, any delay in bringing defendant to trial within that term was occasioned by the defendant’s own actions thereby tolling the running of the 160-day term.

Section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)) provides that “[ejvery person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial ***.” We have found no Illinois case which has had to determine whether the provisions of sections 103 — 5(a) and 103 — 5(b) both are applicable after a defendant on bond who had previously demanded a speedy trial had his bond revoked and is in custody. As support for its position, the State cites our decision in People v. Leannah (1981), 94 Ill. App. 3d 628, 418 N.E.2d 1054, where we held that a person not in custody or on bond or recognizance is not entitled to the benefits of the speedy-trial provisions of section 103 — 5. (94 Ill. App. 3d 628, 629-30, 418 N.E.2d 1054.) By analogy, the State contends that once bond is revoked, defendant is not on bail or recognizance and the provisions of section 103 — 5(b) are inapplicable. We find some merit to the State’s position that the protection afforded a defendant on bail or recognizance under section 103 — 5(b) is inapplicable once bail is revoked, particularly, as shown here, where the defendant’s own conduct has caused such a revocation. However, we need not determine whether sections 103 — 5(a) and 103 — 5(b) are always exclusive of each other since it is readily apparent here that even if defendant may claim the benefit of the 160-day speedy-trial term of section 103 — 5(b), his failure to appear for arraignment on November 7, 1980, and his subsequent arrest and the trial proceedings in Kane County tolled the running of this statutory period until termination of the Kane County proceedings on January 22,1981.

Section 103 — 5(f) provides, inter alia, that “[d]elay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f).) In determining if a delay in the trial was occasioned by the defendant, the court must carefully examine the facts of each case to prevent a “mockery of justice” either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him. (People v. Fosdick (1967), 36 Ill. 2d 524, 529, 224 N.E.2d 242.) The creation and enforcement of constitutional and statutory rights for the protection of defendants cannot be used for manipulation in such a way as to provide an avenue to escape legitimate prosecution. (People v. Sibley (1976), 41 Ill. App. 3d 616, 622, 354 N.E.2d 442.) A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to the delay. (People v. Bivins (1981), 97 Ill. App. 3d 386, 392, 422 N.E.2d 1044; People v. DeCarlis (1980), 88 Ill. App. 3d 634, 637, 410 N.E.2d 677.) A defendant’s failure to appear at a scheduled court hearing is a delay caused by the defendant (see People v. Cornwell (1973), 9 Ill. App. 3d 799, 800, 293 N.E.2d 139), and the tardiness of a defendant which renders a continuance necessary, even if requested by the State, may be a delay occasioned by the defendant. See People v. Boyce (1977), 51 Ill. App. 3d 549, 552-54, 366 N.E.2d 914.

Under the circumstances present here, the defendant while on bond failed to appear for his arraignment on November 7, 1980. The defendant concedes that a delay was occasioned by him, but maintains that this delay constituted only eight days since Du Page County officers visited him in the Kane County jail on November 15, 1980. We conclude, however, that the actual delay occasioned by the defendant was the period of time from November 7, 1980, until January 22, 1981, the latter date being the time when the Kane County proceedings terminated and defendant was returned to Du Page County. Certainly, defendant’s own actions in failing to appear on November 7, 1980, and his arrest and prosecution in Kane County, culminating in his guilty plea there on January 22, 1981, delayed the Du Page County prosecution until the January 22 date. For the reasons previously stated above, his limited appearance on December 12,1980, before the court in Du Page County did not cause him to be in custody in Du Page County for the 120-day term. Likewise, we conclude that this single appearance did not terminate the delay caused by the defendant in his prosecution as he created the necessity for postponement of trial until the Kane County proceedings were completed. Viewing the delay between November 7,1980, and January 22,1981, as occasioned by the defendant and thereby tolling the 160-day term during that time, we find the 160-day speedy-trial term was not violated.

Accordingly, the trial court did not err in denying defendant’s motions for discharge, and we affirm the judgment of the circuit court of Du Page County.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY JUSTICE HEIPLE,

license: Public Domain

text:
    HENRY WILSON, Plaintiff-Appellee, v. M & W GEAR, Defendant-Appellant.
    Third District
    No. 81—724
    Opinion filed November 24, 1982.

      HEIPLE, J., dissenting.
    James Patrick Murphy, of Flack, Kwacala & Murphy, of Macomb, for appellant.
    Stanley L. Tucker and John R. Glidden, both of Hartzell, Glidden, Tucker & Neff, of Carthage, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, M & W Gear, Inc., appeals from a judgment of the trial court awarding $5,400 to the plaintiff, Henry Wilson.

There is no serious dispute in the relevant facts of this case. On March 7, 1981, Wilson purchased a 14-foot M & W grain drill from Colusa Farm Equipment, Inc. (Colusa). Wilson paid for this drill by trading in his old drill and tendering a check for $3,600. Colusa agreed to deliver a grain drill by May 1, 1981, though it did not have any drills in stock at the time of purchase. On March 20, M & W delivered two identical 14-foot grain drills to Colusa. The owner of Colusa told Wilson that his drill arrived, and on several occasions prior to April 20, 1981, the owner and Wilson discussed which attachments were necessary for the drill as well as delivery arrangements for the drill. All M & W drills have individual serial numbers. The two drills that M & W delivered to Colusa were numbered 1018 and 1057. Wilson’s documentation did not indicate a particular serial number on the drill during his subsequent visits to Colusa.

M & W is a manufacturer of farm equipment. It furnished farm equipment to Colusa under a security agreement. Under the terms of the agreement, Colusa remits payments to M & W upon sale of equipment to a customer. M & W in turn maintains a security interest in the inventory of Colusa. M & W’s security agreement with Colusa was properly filed with the Secretary of State and with the recorder of Hancock County. As part of its procedure to enforce the security agreement, M & W contacted Colusa to make an inventory. Colusa had the two grain drills in its inventory. On March 31, M & W’s sales manager determined that one of the drills, serial number 1057, had been sold by Colusa and that M & W had been reimbursed for this drill. This was not the drill that is subject to dispute in this case. An identical drill, serial number 1018, was listed as unsold on March 31. On April 20, M & W seized this drill under its security agreement with Colusa. After Wilson made an unsuccessful demand upon M & W for the drill, he filed this action in the trial court. Both parties stipulated at trial that the grain drill is no longer in the defendant’s possession. After the hearing, the trial court awarded the plaintiff $5,400, representing the value of the grain drill. The defendant now appeals.

The initial issue the parties address in their appeal to this court is whether the grain drill that M & W seized was sufficiently identified or related to the Wilson-Colusa contract such that Wilson can maintain an action for replevin or damages. A plaintiff can sue in replevin only for property which is capable of identification and return. A plaintiff may, however, also proceed under the original replevin complaint for the value of the property not found or delivered. (S. T. Enterprises, Inc. v. Brunswick Corp. (1974), 57 Ill. 2d 461, 469, 315 N.E.2d 1.) The court may award the value.of the property to the plaintiff only if the property is not found or returned. (Brunswick Corp., citing with approval Kehoe v. Rounds (1873), 69 Ill. 351.) Although the defendant does not clearly argue the point, its initial contention appears to be that the plaintiff failed to establish that the drill in question was identified as the drill referred to in the contract. Therefore, the argument goes, the plaintiff is not entitled to maintain an action for replevin. The failure of his action for replevin would deny him any right to an award for the value of the drill bought and paid for by plaintiff.

Although the defendant’s statement of the law on this point may be correct, it does not determine the resolution of this appeal. Wilson did not merely try to replevin the drill. He also asked, in the alternative, for damages for the wrongful taking and detention of the drill. This alternative does not depend upon a right to maintain an action for replevin. Undoubtedly, specifying the prayer for relief as a separate and alternate count of his complaint would have led to less confusion. Failure to draft this alternative clearly, however, is not fatal to Wilson’s claim for damages.

The issue becomes, therefore, whether Wilson is entitled to the value of thé drill. “As a general rule, the holder of a perfected security interest has an interest in the secured property, and the proceeds from the sale thereof, which is superior to the interests of unsecured creditors of the debtor and subsequent purchasers of the secured property.” (Herman v. First Farmers State Bank (1979), 73 Ill. App. 3d 475, 477, 392 N.E.2d 344.) Under section 9 — 307(1) of the Uniform Commercial Code, however, a buyer in the ordinary course of business takes free of a security interest created by his seller even though the buyer knows of its existence. (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(1).) A buyer in the ordinary course of business is a person who “in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind ***.” (Ill. Rev. Stat. 1979, ch. 26, par. 1— 201(9).) Whether a person is a buyer in the ordinary course of business is a question of fact.

In the case at bar, the trial court’s ruling is amply supported by the evidence. It is undisputed that Wilson purchased a drill from Colusa. Colusa is in the business of selling farm equipment and the particular sale to Wilson was normal and typical of the type of sales made in this trade. M & W delivered a drill to Colusa, and it became a part of Colusa’s inventory. Moreover, there is no evidence that Wilson knew of M & W’s security interest or, if he did, that he knew that the sale of the drill was in violation of any security agreement between Colusa and the defendant.

The facts of this case make it indistinguishable from Herman. In Herman, the plaintiff bought 20 tons of liquid nitrogen solution from a dealer. The bank had a perfected security agreement in the inventory of the dealer. The plaintiff paid the purchase price and agreed with the dealer to delivery at a later unspecified date. When the dealer defaulted on the security agreement, the bank seized the dealer’s inventory, including 500 tons of the liquid nitrogen solution. The plaintiff never received the 20 tons she ordered and sued the bank for the value of the solution. On appeal, this court ruled the plaintiff was a buyer in the ordinary course of business who took free from the bank’s security interest.

M & W attempts to distinguish Herman from the instant case. In Herman, M & W argues, the dealer could have complied with the contract by delivering any accumulation of 20 tons of solution. In this case, however, each drill is separate and individually marked with an identifying serial number. This is a distinction without a difference. In Herman, this court placed no reliance on the fact that the goods were not readily and separately identifiable. Moreover, the question of identification is irrelevant to the issue of whether a purchaser is a buyer in the ordinary course of business. Herman.

Antiquated concepts of “title” do not control the resolution of this appeal. In fact, any reliance upon the location in this case would be contrary to the thrust of the Uniform Commercial Code and to modem case law and commentary interpreting the Code. The Code has diminished drastically the importance of title. In particular, the question of whether title has passed is immaterial to the protections afforded to a buyer in the ordinary course of business. Under article II of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 401), “Each provision of this Article with regard to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to goods except where the provision refers to such title.” The Illinois Code Comment explicitly explains the reduced importance of title in determining a buyer’s right to replevin:

“Article 2 deals with issues between buyer and seller in narrow terms rather than on the broad term of whether or not title to the goods has passed. Official Comment 1. The concept of title is thus subordinated under the Code. Instead of approaching a sales problem by first locating title to the goods, as under the Sales Act, a lawyer’s approach starts with an analysis of the problem in terms of these narrow issues (i.e., risk of loss, insurable interest, seller’s right to price, buyer’s right to specific performance or replevin, and rights of creditors of seller and of buyer) and an ascertainment of whether the Code deals specifically with its issues.” (Ill. Ann. Stat., ch. 26, par. 2 — 401, Illinois Code Comment, at 312-13 (Smith-Hurd 1963).)

In the instant case, section 9 — 307 of the Code specifically deals with the buyer’s rights to the goods.

Moreover, to avoid any confusion on the matter, the Code eliminates the importance of title in the law of secured transactions: “Each provision of this Article [article IX] with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” (Ill. Rev. Stat. 1981, ch. 26, par. 9— 202.) The comments to this section remove all doubt as to its full import. “This section de-emphasizes whatever significance the concept of ‘title’ may have had under pre-Code chattel security law.” (Ill. Ann. Stat., ch. 26, par. 9 — 202, Illinois Code Comment, at 103 (Smith-Hurd 1974).) The official comments of the UCC are even more specific: “The rights and duties of the parties to a security transaction and of third parties are stated in this Article without reference to the location of ‘title’ to the collateral.” Ill. Ann. Stat., ch. 26, par. 9 — 202, Uniform Commercial Code Comment, at 103 (Smith-Hurd 1974). See also 1 Anderson, Uniform Commercial Code sec. 1 — 201:19 (1970).

Furthermore, there is no need for the goods to be identified to the contract before section 9 — 307 will protect this plaintiff. Although many of the cases involving section 9 — 307 dealt with goods identified, most courts have not placed any critical emphasis upon that fact. (See, e.g., Chrysler Credit Corp. v. Sharp (1968), 56 Misc. 2d 261, 288 N.Y.S.2d 525; Rex Financial Corp. v. Mobile America Corp. (1978), 119 Ariz. 176, 580 P.2d 8. But see Holstein v. Greenwich Yacht Sales, Inc. (1979), _ R.I. _, 404 A.2d 842 (court ruled upon identification to characterize purchaser as a buyer in the ordinary course of business).) Identification of goods to a contract is relatively unimportant under the UCC. (T.M. Quinn, Uniform Commercial Code Commentary and Digest par. 9 — 307(A)(8) (1982 Cum. Supp. No. 1).) The official comments to section 2 — 501 of the Code — concerning the identification of goods — demonstrates the unimportance of identification. In Comment 5, for example, the Code drafters explained that:

“Undivided shares in an identified fungible bulk, such as grain in an elevator or oil in a storage tank, can be sold. The mere making of the contract with reference to an undivided share in an identified fungible bulk is enough under subsection (a) to effect an identification if there is no explicit agreement otherwise. The seller’s duty, however, to segregate and deliver according to the contract is not affected by such an identification but is controlled by other provisions of this Article.” (Ill. Ann. Stat., ch. 26, par. 2 — 501, Uniform Commercial Code Comment, at 349-50 (Smith-Hurd 1963).)

In Martin-Marietta Corp. v. N.J. National Bank (3d Cir. 1979), 612 F.2d 745, 750, the court observed that the “crux of the passage (Comment 5) is that if a seller removes some of the tangibles and later replaces them, that should not undercut the policy favoring identification, probably because such conduct is quite natural with tangibles and cannot be taken as an intent to negate the buyer’s interest in them.”

We are not arguing, of course, that grain drills are fungibles. There is no substantial distinction, however, between buying 20 tons of a fungible out of a dealer’s 500-ton inventory (as in Herman) and buying one grain drill out of a dealer’s two-drill inventory. The case law considers the goods in the first scenario as “identified” to the contract. We see no reason to give the purchaser in the second instance any less protection. Rather than distort the meaning and purpose of identification in the Code, it is better to recognize its relatively limited importance in the scheme of the UCC. In particular, substantive rights under section 9 — 307 should not. turn upon a concept so elusive and ephemeral.

Not surprisingly, neither Holstein, Martin-Marietta nor the defendant offer any reasonable justification for enhancing a relatively inconsequential concept to a position of such overwhelming importance. In regard to Herman, we saw no need for the seller of a particular group of gallons of liquid nitrogen to label it “Mrs. Herman’s.” In fact, even if the dealer had done so, he could have sold that group to someone else and the buyer still would have an interest in the remaining bulk of nitrogen. In other words, even if we adopt identification as a prerequisite to protection of buyers in the ordinary course of business, the Code would not change the result in Herman. As we have already stated, there is no logical reason to afford the purchasers of appliances or equipment any different protection.

The holding of Troy Lumber Co. v. Williams (1971), 124 Ga. App. 636, 185 S.E.2d 580, does not change our view of the law. The holding in Troy is not on point and the opinion — if anything — supports our view. In Troy, the plaintiffs placed $600 with a mobile home dealer as a down payment on a home. The contract did not specify any particular mobile home. The manufacturer of the mobile homes retained a security interest in the dealer’s inventory under a floor plan that was similar to the scheme in the case at bar. Subsequently, the dealer embezzled all the funds of the business. The manufacturer, not having been paid for any of the homes that it delivered to the dealer, seized the mobile homes in inventory. The plaintiff sued the manufacturer for a refund of the $600, claiming he was a buyer in the ordinary course of business.

Although the court rejected the plaintiff’s arguments, the court’s opinion fully supports our holding in the instant appeal:

“Plaintiffs’ main contention is that they are buyers in the ordinary course of business, and therefore take the property free of a security interest created by the seller. (UCC citations omitted.) This would be a valid argument if the plaintiffs were in fact buyers, i.e., if they were either attempting to enforce the contract of sale or defending their right to free possession of the property after having performed under the contract. However, the plaintiffs have, in effect, rescinded this contract by demanding refund of their down payment. They are not asking for a mobile home, they are asking for $600.” (Emphasis added.) (124 Ga. App. 636, 637-38, 185 S.E.2d 580, 582.)

The court characterized the plaintiffs as lien creditors of the dealer who held an inferior position to the manufacturer.

Troy explicitly recognizes the rights of a purchaser, standing as a buyer in the ordinary course of business, to sue the secured creditor which seizes the dealer’s inventory. Unquestionably, the plaintiff in the instant appeal is attempting to enforce the contract of sale and he fully performed his part of the contract. He paid for a grain drill and seeks to obtain a grain drill. Most significantly, Troy implicitly rejects any necessity for identification as a prerequisite to relief and protection under section 9 — 307.

The appellants in the case at bar invite the court to reconsider Herman and resurrect the argument that protecting the buyer will make security on an inventory an unworkable concept. We decline the invitation. All courts that have faced this problem have reached the same conclusion: “If there is a usage of trade which exposes an entruster on floor plan to certain risks, these are risks against which he can guard by audits and accounting procedures or he can refuse to knowingly expose himself to the risk with the particular dealer.” (Chrysler Credit Corp. v. Sharp (1968), 56 Misc. 2d 261, 270, 288 N.Y.S.2d 525, 534, quoted with approval in Herman.) The secured party is in an excellent position to know whether an item has been sold. In the case at bar, for example, the manufacturer could have required copies of all orders before shipment to the dealer. Upon receiving the orders, the manufacturer could have assigned particular grain drills to particular retail purchasers. Failing this simple routine, the manufacturer could have examined Colusa’s records to determine how many grain drills had been paid for but were currently undelivered. M & W would have discovered that two grain drills were paid for, that these two drills had not yet been delivered to the purchasers and that two drills were still in inventory. This information is certainly sufficient to inform the manufacturer that the two drills in inventory have been sold. Requiring a serial number on each order form would be superfluous. Even if these records are unavailable, Colusa’s and M & W’s failure to utilize modern accounting and auditing procedures can hardly be a justification for prejudicing the retail purchaser’s rights under section 9 — 307. Finally, if any particular dealer is unreliable in its inventory or accounting practices, the manufacturer can refuse to expose itself to those risks.

Herman is directly on point for this appeal. It is in accord "with modern case law and understanding of the Uniform Commercial Code. More importantly, Herman was decided by a unanimous panel of this court only three years ago, and it is based on a sound and rational policy of protecting innocent purchasers from the zealous and unilateral actions of secured creditors of the dealers. There is no sensible reason to deviate from Herman, especially where the retail purchaser has fully performed his obligations of the contract. We hold, therefore, that when a person contracts to buy goods and those goods are in the dealer’s inventory, awaiting delivery or being prepared for delivery, that purchaser is a buyer in the ordinary course of business within the meaning of section 9 — 307. Title to the goods does not have to pass to the purchaser nor do the goods need to be identified by number before section 9 — 307 will protect the retail purchasers.

For the reasons stated, the judgment of the circuit court of Hancock County is affirmed.

BARRY, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

This is a suit for replevin brought by a farmer against a farm implement manufacturer. The controversy arose after the farmer, Wilson, had prepaid an order to a farm implement dealer, Colusa, for a grain drill that was not in stock at the time of the order. The dealer was to obtain a drill of a certain make and type and deliver it to the farmer. Later, however, and before a drill was delivered to Wilson, the dealer inventory was repossessed by the manufacturer, M & W Gear, pursuant to a security agreement. At the time of repossession, the inventory repossessed included a grain drill of the make and type ordered by Wilson. Wilson claimed that it was his. Wilson’s replevin suit also included a claim for damages resulting from the retention of the chattel by M & W Gear. The trial court found for Wilson and awarded him a judgment for the value of the grain drill, but denied his claim for damages for retention. It was not possible for the trial court to award the drill itself since it was no longer in defendant’s possession.

M & W Gear appeals.

In a carelessly reasoned opinion, the majority chooses to affirm and, in so doing, takes off on a discussion of the Uniform Commercial Code that defies rational analysis, states bad law, and republishes an earlier erroneous decision of this court in the 1979 case of Herman v. First Farmers State Bank (1979), 73 Ill. App. 3d 475. Such distortions cannot be endorsed and should not go unremarked.

Article 9 of our Uniform Commercial Code establishes a priority system for determining the rights of parties who claim competing interests in secured property. (Ill. Ann. Stat., ch. 26, art. 9, Introductory Comment (Smith-Hurd 1979).) As a general rule, the holder of a perfected security interest has an interest in the secured property, and the proceeds from the sale thereof, which is superior to the interests of unsecured creditors of the debtor and subsequent purchasers of the secured property.

“Sec. 9 — 201. General Validity of Security Agreement. Except as otherwise provided by this Act a security agreement is effective according to its terms between the parties, against purchasers of the collateral and against creditors.” (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 201.)

However, the principal exception to this general rule is found in section 9 — 307(1), which provides:

“Sec. 9 — 307. Protection of Buyers of Goods. (1) A buyer in ordinary course of business (subsection (9) of Section 1 — 201) *** takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” (Ill. Rev. Stat. 1979, ch. 26, par. 9-307(1).)

The definitional provision of the Code states:

“ ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind ***.” (Ill. Rev. Stat. 1979, ch. 26, par. 1-201(9).)
“A ‘sale’ consists in the passing of title from the seller to the buyer for a price. ***” (Ill. Rev. Stat. 1979, ch. 26, par. 2— 106(1).)
“Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are ‘future’ goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.” (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 105(2).)

The manner of identification of goods is as follows:

“(1) The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers even though the goods so identified are non-conforming and he has an option to return or reject them. Such identification can be made at any time and in any manner explicitly agreed to by the parties. In the absence of explicit agreement identification occurs
(a) when the contract is made if it is for the sale of goods already existing and identified;
(b) if the contract is for the sale of future goods other than those described in paragraph (c), when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers.” (Ill. Rev. Stat. 1979, ch. 26, par. 2-501(1).)

Identification is required for title to pass:

“Title to goods cannot pass under a contract for sale prior to their identification to the contract (Section 2 — 501), and unless otherwise explicitly agreed the buyer acquires by their identification a special property as limited by this Act. *** Subject to these provisions and to the provisions of the Article on Secured Transactions (Article 9), title to goods passes from the seller to the buyer in any manner and on any conditions explicitly agreed on by the parties.” (Ill. Rev. Stat. 1979, ch. 26, par. 2— 401(1).)

Delivery passes title:

“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading * * *
(b) if the contract requires delivery at destination, title passes on tender there.” Ill. Rev. Stat. 1979,. ch. 26, par. 2-401(2).

The foregoing is the statutory law applicable to this transaction. What are the facts? The record discloses that on or about March 7 to March 9, 1981, Wilson paid Colusa $3,600 in cash and gave them his old drill which Colusa valued at $1,800 for tradein purposes. This total of $5,400 was to cover the purchase price of a new 14-foot M & W grain drill which was not then on the premises of Colusa but was to be obtained by Colusa for Wilson. Wilson, testifying as to the agreement, stated: “Well, the agreement was that [Colusa] was supposed to deliver the drill before season or May 1st, I believe, it was to be delivered to my farm.” This testimony supplements and corroborates the dealer’s receipt to Wilson on March 7 and Wilson’s $3,600 check to Colusa dated March 9. Thus, it is seen that the transaction of March 7-9 amounted to the placing of a prepaid order for future delivery of a particular type of farm implement but not a particular implement. The implement was not identified as to serial number, color, nor, in fact, in any other way except as to make and type. Indeed, it could not have been identified as it was not on the premises of Colusa at such time. Presumably, any drill of the make and type ordered that Colusa would have procured would have been satisfactory. The new drill was to become Wilson’s when it was delivered to Wilson at his farm. With the payment and order which Wilson gave to Colusa, Wilson became a contract buyer and an unsecured creditor of Colusa to the extent of $5,400.

For its part, M & W Gear, the manufacturer, supplied farm equipment on credit to Colusa, the dealer, for sale to customers of Colusa. To secure this extension of credit, M & W had an agreement with Colusa commonly known as a floor plan. Under this floor-plan agreement, it became Colusa’s obligation to remit payment to M & W whenever an included item of inventory was sold. Colusa also executed a promissory note and a security agreement in favor of M & W. Under the terms of the security agreement, M & W received a security interest in all of Colusa’s inventory, equipment, and all cash and noncash proceeds arising out of the sale of M & W products sold by Colusa. The agreement further spelled out that such “proceeds” included all cash, chattel paper, contract rights and instruments presently owned or later acquired by Colusa upon the sale of any item of inventory. Pursuant to statute, M & W perfected this security interest with a filing in the office of the recorder of deeds of Hancock County, which was the site of the transaction. Ill. Rev. Stat. 1979, ch. 26, pars. 9 — 401, 9-402.

On March 20, M & W delivered two identical 14-foot grain drills to Colusa of the make and type ordered by Wilson. All M & W drills have individual serial numbers and these two were numbered 1018 and 1057. On March 31, M & W determined that drill number 1057 had been sold by Colusa and payment rendered to M & W. On April 20, M & W seized drill 1018-under its security agreement and further disposed of it. After Wilson made an unsuccessful demand upon Colusa for delivery of the drill he had ordered, he brought this replevin action against the manufacturer.

The evidence concerning whether drill number 1018 was identified to the contract of sale between Colusa and Wilson is in dispute. Wilson testified that after he was told by his neighbor, Dennis Pilkington, that his drill was in, that he went over to Colusa and looked at a drill there. He claims there were some things he felt needed to be done before delivery. A U-bolt needed to be replaced; the tires needed to be checked; an acre meter and scratches needed to be attached. The record is unclear if these concerns were communicated to anyone at Colusa and if they agreed to do them to the drill now identified as number 1018. The record does not clearly support the proposition that anyone at Colusa told him his drill was in nor the drill that was his is the one now identified as number 1018. Wilson acknowledged at trial he gave a deposition shortly after the seizure by M & W. He admitted that in the deposition he said that no one called him from Colusa to say his drill was in. While Wilson had tried to telephone them when he heard his drill was in, he was never able to make contact with anyone at Colusa. In short, there is no solid evidence in the record to show that grain drill number 1018 was designated or marked by Colusa as the one to fill their contract of sale with Wilson. Wilson never claimed that he was told by Colusa that the drill grain number 1018 was his drill.

The trial judge, although finding that Wilson was a buyer in the ordinary course of business, made no finding that drill number 1018 was identified as to Wilson. Wilson offered the only testimony pointing towards identification and it was self-serving, equivocal and impeached. In short, the judge did not find identification. And if he had so found, the evidence would not have supported it.

In a total misconception of the law, the majority opinion says that such lack of identification makes no difference; that, “Although the defendant’s statement of the law on this point may be correct, it does not determine the resolution of this appeal.” Nothing could be further from the truth. For if the drill had never been identified as to Wilson, then Wilson could have no interest in it. Certainly, Wilson had a valid claim against Colusa for breach of contract when May 1 came and went and the ordered drill was not delivered to him. That is clear. But that is not what this lawsuit is about. This lawsuit is a replevin suit to recover a particular drill that allegedly belonged to Wilson. If it wasn’t Wilson’s drill, it wasn’t subject to replevin. And if it wasn’t subject to replevin, M & W wasn’t liable for the value of the drill which they repossessed from Colusa. It is also notable that on April 21, when M & W repossessed drill 1018, there were 10 days still remaining on Wilson’s contract with Colusa before delivery of a 14-foot M & W drill had to be made. Wilson had no clear right to insist on delivery of any drill on April 21, much less drill 1018.

Assuming arguendo that fire or act of God had destroyed the drill or that the drill was stolen during the period it was on the premises of Colusa, would the loss have fallen on Wilson? Clearly not. Wilson had a contract of purchase for delivery of a 14-foot M & W drill on or before May 1. His contract did not call for drill 1018 nor for any other specific identifiable chattel. Rather, it called for the delivery of a particular make and type of drill on or before May 1. Wilson had a right to insist on performance of such contract by Colusa and could have maintained a suit for breach of contract against Colusa if delivery failed. Since drill 1018 was not identified as to him, he would not have had to accept the loss if it had been destroyed on Colusa’s sales lot or been stolen. Likewise, it is clear that he had no right to replevin that item.

Having dismissed out of hand the significance of identification, the majority concludes that the only issue in the case is whether Wilson was a buyer in the ordinary course of business. Finding that he was such a buyer and relying on Herman, the majority affirms the judgment of the trial court in favor of Wilson. Such finding cannot survive analysis.

Section 9 — 307(1) of the Uniform Commercial Code which protects a “buyer in the ordinary course of business” cannot be said to protect all persons who have paid money to a seller. There must be a buyer. The very term presupposes a sale as shown by the definition of such buyer in section 1 — 201(9) where the word “sale” is used. Merely paying the money does not constitute a sale. At some point in time there must be a transfer of ownership, at which time the person becomes a buyer. A sale consists of the “passing of title from the seller to the buyer for a price.” (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 106(1).) “Title to goods cannot pass under a contract for sale prior to their identification to the contract.” (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 401(1).) Thus, prior to identification, no property interest could pass to Wilson so as to bring him within the protection of a buyer in the ordinary course of business.

Although the question of title passage is of prime importance in determining the respective interest of Colusa’s customers and Colusa’s secured creditor, the Uniform Commercial Code has, to a great extent, softened the concept of title through the use of specific provisions determining the rights and duties of buyers and sellers with regard to such things as risk of loss and insurable interest. Even under those specific provisions, however, the Uniform Commercial Code does not impose the risk of loss on the buyer until tender of delivery is made to the buyer (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 509(3)), nor does it give buyer an insurable interest until goods are existing and identified. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 501.) In fact, as logic would require, the Code provides that no interest in specific goods can pass before the goods are (1) existing, and (2) identified. The Uniform Commercial Code’s definition of goods provides:

“Goods must be existing and identified before any interest in them can pass. Goods which are not both existing and identified are ‘future’ goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.” Ill. Rev. Stat. 1979, ch. 26, par. 2 — 105(2).

The plaintiff could not be a buyer in ordinary course of business until there were goods which were existing and identified to comprise the subject matter of the purchase. In this case, since no identification took place, no interest in any particular item of inventory passed to plaintiff. Although Wilson’s contract with Colusa was a valid contract, his rights to the Colusa inventory are inferior to the rights of M & W as the holder of a perfected security interest.

As already noted, the Code provides that no passage of title could occur under the facts of this case, as it says that title to goods cannot pass under a contract for sale prior to their identification to the contract. Passage of title to goods would be controlled by the explicit agreement of the parties, and as there is no explicit agreement regarding title, title passes to the buyer at the time and place which the seller completes his performance with reference to physical delivery of the goods (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 401(2)) and, in particular, if the contract requires delivery at destination, title passes on tender there. (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 401(2)(b).) It will be recalled that the contract between Wilson and Colusa called for delivery of the drill to Wilson’s farm on or before May 1. Such delivery never took place, and no identification under the Code took place on the premises of Colusa prior to repossession.

There are few cases squarely on the point. One case which appears precisely on point is Troy Lumber Co. v. Williams (1971), 124 Ga. App. 636, 185 S.E.2d 580, where plaintiffs made a down payment of $600 to a mobile home dealer. There were mobile homes in the lot, but the payment was not on a specific mobile home. The court held that plaintiffs were not “buyers in ordinary course” and the security interest was held to be prior. In Draper v. Minneapolis-Moline, Inc. (1968), 100 Ill. App. 2d 324, a buyer of a tractor took prior to the secured party because “there was a complete and sufficient identification of the tractor to the contract.” In that case a particular tractor was shown to the purchaser who was told that it was his. This case clearly recognizes the principle that there must be an identification and appropriation to the contract.

The majority opinion, as a practical matter, makes the concept of security on inventory an entirely unworkable concept. It makes any inventory on hand subject to the claims of unsecured buyers of “future goods,” and it makes these goods subject to such claims without regard to when the goods came into possession of the dealer, without regard as to whether they have been identified as to the contract, and without regard to delivery conditions of the contract. The secured party cannot know on repossession of a particular item whether one or several unknown persons may have a prior claim to that particular item. After repossession and sale by the secured party, claims by one or more previously unknown buyers may be filed against the proceeds. Suppose, for instance, that Colusa had contracted to sell an undetermined number of drills for future delivery. Suppose further that one drill comes into inventory and is repossessed and sold by the manufacturer prior to identification or delivery to any customer. The repossessing secured party would have to sit on the proceeds until the four-year statute of limitations (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 725) expired in order to know that it was entitled to keep the money. They would have no way of knowing how many claims existed against the repossessed inventory or when, or if, or in what manner they would be presented. That is the evil of the ruling in this case and that is the evil of Herman. The majority says that Herman is indistinguishable from this case. That is true. Herman was wrong and pronounced bad law. There is no need to dissect Herman here. Such analysis would be a reiteration of my dissenting opinion in this case. Errors once made, if recognized, need not be repeated. I would not follow Herman and I would not affirm the judgment in this case. Rather, I would direct the entry of judgment for the secured creditor.


author: PRESIDING JUSTICE GREEN

text:
    D. SCOTT CHARLTON et al., Plaintiffs-Appellants, v. CHAMPAIGN PARK DISTRICT, Defendant-Appellee.—(RAINBOW BEND-CHAMPAIGN, LTD., Intervening Defendant-Appellee.)
    Fourth District
    No. 4—82—0210
    Opinion filed October 21, 1982.
    Modified on denial of rehearing December 29, 1982.
    Paul C. Hendren, of Williamson, Miller & Hendren, of Champaign, for appellants.
    Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee Champaign Park District.

      Gene A. Petersen, of Davis & Morgan, of Peoria, for appellee Rainbow Bend-Champaign, Ltd.
    Harris W. Fawell and Heidi H. Katz, both of Fawell, James and Brooks, of Naperville, for amicus curiae.

   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

The plaintiffs in this case are taxpayers residing within the boundaries of defendant, Champaign Park District (Park District). On March 5, 1982, they filed a complaint in the circuit court of Champaign County seeking a declaratory judgment declaring to be invalid a purported agreement between defendant and Group VI, Ltd., assignor of all its rights and obligations under the agreement to intervenordefendant, Rainbow Bend-Champaign, Ltd. (Rainbow Bend). The agreement provided for Group VI to construct, own, operate and charge admission to patrons using a waterslide to be built by Group VI at Centennial Park in Champaign, a public park owned and operated by the Park District. Plaintiffs also sought preliminary and permanent injunctions prohibiting construction of the waterslide and its operation under the terms of the agreement.

The circuit court ordered a preliminary injunction to issue on March 8, 1982. Rainbow Bend was allowed to intervene as assignee of Group VI. On March 18, 1982, after a hearing on the merits, the circuit court dissolved the interlocutory judgment and denied all relief requested by plaintiffs. Plaintiffs appeal, asserting the Park District acted beyond its authority in attempting to contract with Rainbow Bend because (1) the Park District has only the powers granted to it by statute and no power to enter into a contract of this nature has been so granted, (2) the purported contract violates the statutory mandate that the Park District control its property, and (3) in purporting to enter into the contract, the Park District violated a statutory requirement that it advertise for bids before entering into a contract of this nature. We affirm.

The evidence was mostly undisputed and need not be recited at length here. Pertinent details will be mentioned in discussion of the legal points raised. The document in dispute was entitled “Concession Agreement.” After the assignment and an amendment made before the hearing on the merits, the agreement provided for Rainbow Bend to build, own and operate the waterslide and related concessions, collecting the admission and concession charges and remitting 10% thereof to the Park District. The size of the area for the project was estimated to be less than V-k acres. The length of the agreement was stated to be slightly over five years with Rainbow Bend given options to renew for five three-year periods. The agreement also provided that Rainbow Bend might terminate it on the first of any calendar year, upon proper notice, if it could “establish to the reasonable satisfaction of the Park District that the continued operation of the Water Slide is no longer economically feasibile.”

The parties agree that park districts, like other non-home-rule units of local government, can only exercise those powers expressly granted to them by statute or necessarily implied from such a grant. (People ex rel. Nelson v. Beu (1949), 403 Ill. 232, 85 N.E.2d 829.) The Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 1 — 1 et seq.) does not expressly grant to park districts the power to enter into leases, licenses, or concessions with a private entity for the operation on district property of a business of profit to the private party. To support the holding of the trial court that the Park District had power to enter into the “Concession Agreement,” the Park District and Rainbow Bend' rely upon the implications of several express statutory grants of authority to park districts. Section 8 — 10 of the Code (Ill. Rev. Stat. 1979, ch. 105, par. 8 — 10) gives park districts power to establish and maintain various recreational programs and facilities including swimming pools and states that the grant of power is not a limitation on the power to provide other recreational facilities. Section 8 — 1(a) of the Code (Ill. Rev. Stat. 1979, ch. 105, par. 8 — 1(a)) permits park districts “to contract in furtherance of any of its corporate purposes.”

Plaintiffs concede the Park District has power under section 8 — 10 to itself build and operate the waterslide as a recreational facility and to charge admission for its use. Plaintiffs dispute that the Park District has power to contract with others to operate the slide and receive admission charge for it. No Illinois cases are directly in point. However, plaintiffs have been unable to present any case from any jurisdiction holding that legislation similar to that here has been insufficient to authorize the granting of concessions or licenses for similar activity by any municipality. We conclude the cases cited by parties-defendant here are sufficient to support their contention that the power of the Park District to enter into the agreement here was necessarily implied from the park district act.

We consider People ex rel. Hoyne v. Chicago Motor Bus Co. (1920), 295 Ill. 486, 129 N.E. 114, to be the most significant case cited. In a quo warranto proceeding, the supreme court upheld the power of a park district, acting through its commissioners, to license, for a fee, a corporation to operate buses on and through the streets within the park lands. The supreme court deemed the grant to the district to generally regulate the park land and the specific grant to provide for streets and alleys to be sufficient to imply the power to issue such licenses.

The case of Hagerman v. South Park Commissioners (1934), 278 Ill. App. 33, is also helpful. An action was brought by one who had obtained a contract for concessions from a park district seeking to have money paid by him on the contract returned. The contract provided the district would purchase concession stands, which were in the park, from the present concession holders and resell them to the plaintiff at the same price. In seeking to rescind the contract, the plaintiff claimed the park commissioners lacked authority to enter into a contract for concessions. The appellate court affirmed a judgment for the defendants ruling that although the commissioners’ powers were to be strictly construed, “[t]he agency employed by the defendant was to carry out a proper activity of the defendant as a municipal entity.” 278 Ill. App. 33, 40-41.

The Hagerman court drew analogy to the case of Furlong v. South Park Commissioners (1926), 320 Ill. 507, 151 N.E. 510, where the court upheld the power of the commissioners to build museums. The Hagerman court stated that “whether the contract in question [was] to be construed to be a sale, lease, or a license” was immaterial. (278 Ill. App. 33, 41.) However, the Hagerman court also deemed significant the fact that although attacking the validity of the contract, the plaintiff had enjoyed benefits of the contract and remained in possession of the stands.

Neither Kurek v. Pleasure Driveway & Park District (7th Cir. 1977), 557 F.2d 580, nor People ex rel. Carroll v. Village of Lakewood (1938), 368 Ill. 209, 13 N.E.2d 275, cited by both parties-defendant, pass directly upon the power of the Park District to enter into concession agreements. Dictum in Kurek is marred by an apparent misapprehension of that court that section 8 — 16 of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 8 — 16) expressly authorizes park districts to lease its real estate to others.

We need not hold that a park district has even implied power to lease its real estate in order to uphold the instant agreement because we deem the agreement to merely grant a license to Rainbow Bend. A license differs from a lease in that the former merely gives the licensee a right to enter upon the licensor’s land and use it for a specific purpose. The licensor still has legal possession of and control over the premises. In a lease, the lessee possesses an estate and controls the property against the lessor and all the world. (Mueller v. Keller (1960), 18 Ill. 2d 334, 164 N.E.2d 28; Jackson Park Yacht Club v. Department of Local Government Affairs (1981), 93 Ill. App. 3d 542, 417 N.E.2d 1039; In re Application of Rosewell (1979), 69 Ill. App. 3d 996, 387 N.E.2d 866.) Whether the agreement entered into by the parties is a license or a lease is partly a question of the intent of the parties. Jackson Park Yacht Club.

The case of In re Application of Rosewell (1979), 69 Ill. App. 3d 996, 387 N.E.2d 866, is closely on point. In Rosewell, the sole issue before the court was whether agreements between the city of Chicago and private companies for the operation of parking facilities were leases subject to real estate taxation. The agreements between the city and the private operators transferred possession of the garages to the operators. The garage operators had to have prior written approval of the city before signs could be posted or before commercial vehicles could be allowed to park. The agreement set out a schedule of parking fees and required the garages to be open 24 hours per day, seven days per week. The city also had the power to approve the design and color of the uniforms worn by the operator’s employees.

The trial court had held that the agreement was a lease because the operators had exclusive possession of the premises. The appellate court disagreed, holding that “an agreement which merely entitles one party to use property subject to the management and control of the other party does not constitute a lease, but rather grants only a license [citations].” (69 Ill. App. 3d 996, 1001-02, 387 N.E.2d 866, 870.) The appellate court found that the agreements were not intended to transfer possession of the real estate, coupled with sufficient control necessary to create a leasehold interest.

The concession agreement as amended grants the power to “construct, operate and manage” the waterslide and to collect the proceeds. As in Rosewell the agreement also states that possession is given to the licensee. However, as we subsequently explain, the documents give no indication the Park District has abdicated all of its important rights incident to possession.

The foregoing cases indicate the argument in favor of a park district having implied power to enter into an agreement of the nature here is strongest when the function to be performed by the other party is incidental to the performance by the district of its authorized activities and when sufficient control of the premises is retained by the park district to make the agreement a license rather than a lease. Plaintiffs cite an additional reason why the retention of control in the park district is of importance. Section 8 — 1(f) of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 8 — 1(f)) states park districts have power to “manage and control all officers and property of such districts.” Plaintiffs contend that the precedent of Boseley v. Park District (1916), 275 Ill. 92, 113 N.E. 984, requires a determination that the instant agreement is beyond the power of the Park District because it has relinquished too much control of the premises.

In Boseley, a contract between a park district and a local library authority called for the building of a library on park district property, with the two groups each occupying and managing portions of the building, was held to be invalid. The court noted that both entities were given statutory power to manage their property and joint management would be inconsistent with the statutory grant. Plaintiffs maintain that similarly the grant of power to the Park District to manage its property precludes any sharing of that function with Rainbow Bend. However, we note that in Boseley the library authority had “the exclusive right to use, occupy and control all of the building except a portion of the basement.” (275 Ill. 92, 96, 113 N.E. 984, 985.) Here, greater control was retained by the Park District.

As the facts bearing upon whether the operation of the waterslide were incidental to other park functions and those concerning the degree of control remaining in the Park District over the operation of the slide are somewhat related, we discuss them together.

The project was expected to cost about $625,000 to Rainbow Bend and was to occupy about IV2 acres of Centennial Park. The twoflumed slide was expected to extend 40 feet into the air. Centennial Park contains 78.5 acres and is only one of 34 parks containing 458 acres in all which are operated by the Park District. In addition to the waterslide, Centennial Park is improved with a 24-foot high sledding hill, lighted baseball and softball diamonds each with substantial spectator seats, two Little League baseball diamonds, a building housing a gymnasium and a meeting room, eight lighted tennis courts, a 21k-acre stocked animal farm and a swimming and diving facility near the waterslide which was licensed to serve 1500 people. The Park District anticipated revenues of from $15,000 to $25,000 as their share of the waterslide and concession revenues and expected the presence of the waterslide to increase swimming pool revenues by about $10,000.

Plaintiffs cite as instances of an excessive grant of control to Rainbow Bend the following: (1) the “Termination or Expiration Clause” which authorizes Rainbow Bend to terminate upon a showing of economic unfeasibility; (2) the possibility that the ownership and control of Rainbow Bend might change; (3) the ability of Rainbow Bend under the agreement as amended to charge less than established rates at certain times when reasonable to do so; (4) the provision of the agreement as amended for Rainbow Bend, with Park District approval, to operate the slide during the off season without a provision whereby the Park District can require Rainbow Bend to do so; (5) provision of foregoing which prohibits other concession stands within 1,000 feet of Rainbow Bend’s concession stand; and (6) lack of provision in agreement as amended for proper input.

We do not consider the “Termination or Expiration Clause” to constitute a divestiture by the Park District of control of its property for a successful exercise of that provision by Rainbow Bend would return complete control of the property to the Park District. Likewise the control by the Park District of property would not change if ownership of Rainbow Bend changed. The powers of Rainbow Bend might be exercised by different people, but the powers of the Park District would remain the same. The effect of the provisions for off-season operation merely require agreement between the parties for any off-season operation. No complete loss of control by the Park District is involved.

Some divestiture of control by the Park District is inherent in any granting of a license. Here, however, the agreement as amended provides for (1) an establishment of the regular prices to be charged the public for the first year, (2) an agreement that those charges will not be raised more than 15% in any year without Park District approval, (3) a determination that the regular season for operation was from Memorial Day to Labor Day, (4) power in the Park District to require the discharge of any Rainbow Bend employee if those employees engage in any disorderly or otherwise “improper” conduct, and (5) a requirement that Rainbow Bend comply with the affirmative action program of the Park District. The documents also require Rainbow Bend to comply with various laws and ordinances which would be binding on them anyway.

We recognize the problems that might arise if a unit of local government completely abrogated its function or surrendered control of its property to an independent contractor. That has not occurred here. The operation of the waterslide, although a substantial undertaking, is clearly incidental to the total recreation facilities provided by the Park District at the park and even more incidental to the total operation of the Park District in all of its parks. The Park District has maintained sufficient control over the waterslide operation to protect its property at the site and to protect the public use of the waterslide and the rest of the park. The situation is far different than in Boseley where the park authorities had abandoned all control of all but a small portion of the building.

We now turn to plaintiffs’ final contention that, even if the Park District was otherwise authorized to enter into the agreement, it could not do so without first advertising for bids from other entities that might be willing to enter into a similar agreement. Plaintiffs maintain the solicitation of bids was required by section 8 — 1(c) of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 8 — 1(c)) which in listing the power of park districts, states:

“(c) To acquire by gift, bequest or purchase any personal property necessary for its corporate purposes provided that all contracts for supplies, materials or work involving an expenditure in excess of $4000 shall be let to the lowest responsible bidder, after due advertisement, excepting contracts which by their nature are not adapted to award by competitive bidding, such as contracts for the services of individuals possessing a high degree of professional skill where the ability or fitness of the individual plays an important part ***.” (Emphasis added.)

The parties-defendant seek to justify the Park District’s decision not to take bids mostly on the theory that the essence of the agreement was the high degree of skill and expertise possessed by persons connected with Rainbow Bend who had also built and operated a similar slide at Peoria. Plaintiffs respond that the ownership and personnel connected with Rainbow Bend could change at any time.

We agree that the personnel connected with Rainbow Bend would be an important consideration for the Park District to consider in determining who to select for an undertaking of the nature of the aquaslide. Although both the personnel and ownership could change, this is true of most business entities of size today. The Park District could properly have decided that a change was unlikely. In any event, other considerations also justify the failure to take bids. Section 8— 1(c) excepts “contracts which by their nature are not adapted to award by competitive bidding.” It then lists examples prefaced by the phrase “such as” indicating the examples given are not exhaustive. Although bids were apparently solicited for the Peoria project, contracts of this nature are inherently “not adapted to award by competitive bidding” because of the many variables involved which need to be worked out. The legislation is keyed to contracts for the furnishing of goods or services for a price or fee. The phrase “an expenditure in excess of $4000” would ordinarily refer to the amount to be paid by the district to the entity furnishing the goods or services. The evidence indicated that the Park District made a substantial investigation with reference to other possible bidders before concluding that seeking bids would not be appropriate. It was acting within its discretion when it decided not to do so.

We agree with the trial court that the agreement was within the Park District’s powers of contract and properly entered into by it. The judgment denying plaintiffs the relief they requested is affirmed.

Affirmed.

TRAPP and LEWIS, JJ., concur.


author: JUSTICE NASH

text:
    JAMES WALKER et al., Plaintiffs-Appellants, v. JOHN W. COCKRELL, Clerk of the Circuit Court of Du Page County, Defendant-Appellee.—FRED LAUTH et al., Plaintiffs-Appellants, v. THE COUNTY OF LAKE et al., Defendants-Appellees.
    Second District
    Nos. 82—90, 82—209 cons.
    Opinion filed November 24, 1982.

      Richard J. Prendergast, Thomas J. Tyrrell, and Katrina Veerhusen, all of William J. Harte, Ltd., and Larry D. Drury, Ltd., both of Chicago, and Berle L. Schwartz, of Highland Park, for appellants.
    John T. Eisner, of Samelson, Knickerbocker & Schirott, of Des Plaines, and Fred L. Foreman, State’s Attorney, of Waukegan (Gary Neddenriep, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE NASH

delivered the opinion of the court:

The principle question presented by these consolidated cases is whether the 10% bail bond costs retained by the clerk of the circuit court, as authorized by section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f)), violate article VII, section 9(a), of the 1970 Illinois Constitution. Ill. Const. 1970, art. VII, sec. 9(a).

The Du Page County appeal is from dismissal of a purported class action brought by plaintiffs James Walker and Ronald Klimer, on behalf of themselves and all others similarly situated in that county, and the Lake County appeal is brought by plaintiffs Fred Lauth, Láveme Krensky and Jeffrey Krensky from the dismissal of their similar purported class action in that county. In each case plaintiffs sought declaratory judgment that the costs which had been retained (or in Kliner’s case, will be retained) by the circuit clerk from their bail deposit after disposition of their underlying cases violated the constitutional prohibition that compensation and expenses of officers and employees of units of local government shall not be based upon the funds disbursed or collected by them. In each case plaintiffs sought refund of all bail bond costs so retained by the respective circuit clerks since the effective date of the 1970 constitution. The Du Page County case joined as defendant only the circuit clerk while in Lake County the circuit clerk, county treasurer and the County of Lake were made defendants. The trial court in each case granted defendant’s motion to dismiss the complaint and plaintiffs appeal.

We consider first the contention of defendants in each case that principles of collateral estoppel bar plaintiffs, other than Kliner in the Du Page County appeal, from maintaining these actions, and, as to Kliner, that no actual controversy is present to support an action for declaratory judgment.

In the Lake County case the complaint alleged, inter alia, that each plaintiff had posted sums equal to 10% of the bail fixed after being arrested for ordinance or statute violations. After disposition of their cases, each plaintiff received a refund from the circuit clerk of 90% of the sums so deposited as bail with the clerk retaining as bail bond costs 10% of the amount deposited. In the Du Page County case the complaint alleged plaintiff Walker was arrested December 4, 1979, and, after bail was set at $100,000 by the court, he deposited $10,000 with the circuit clerk to secure his release under the 10% bail bond provision. That thereafter plaintiff Walker was discharged from his obligation under his bond and $9,000, or 90%, was returned to him, or his assignee, while the circuit clerk retained $1,000 as bail bond costs pursuant to section 110 — 7(f). As to plaintiff Kliner, the complaint alleged that after his arrest on March 11, 1981, he deposited $6,000 (10% of the bail set) with the circuit clerk pursuant to the statute which the circuit clerk presently holds pending disposition of that underlying case and his bond remains in effect. Kliner also alleged that $600, or 10% of the bail deposited by him, would be thereafter retained by the circuit clerk as costs upon disposition of that case.

Neither complaint alleged that any objection to the retention of the bail bond costs by the circuit clerk was made by plaintiffs in the trial court in those underlying cases which were completed or that appeals had been taken from the judgments there entered after their disposition.

We conclude that the present action attacking the disposition of the bail deposited by each plaintiff, except Kliner, constitutes an attempt to avoid the rule against collateral attack of a judgment. The trial courts in each completed case had jurisdiction over the disposition of the bail deposited by virtue of section 110 — 7(f) (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f)) and plaintiffs were required to raise the issues sought to be presented here before those courts in which the judgments were entered. (See Morgan v. Finley (1982), 105 Ill. App. 3d 80, 83-84, 433 N.E.2d 1047, 1048-49; Sanner v. Champaign County (1980), 88 Ill. App. 3d 491, 497, 410 N.E.2d 656, 660.) If plaintiffs had done so those portions of the judgments directing disposition of defendant’s bail deposit could have been considered by a reviewing court on a direct appeal. See People v. Castile (1981), 87 Ill. 2d 73, 76, 429 N.E.2d 495, 496.

Accordingly, in the Lake County appeal and that portion of the Du Page County appeal brought by plaintiff Walker, the trial court will be affirmed as the complaints contained no allegations attacking the jurisdiction of the courts entering the underlying judgments and thus failed to state a cause of action. See DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 137-38, 418 N.E.2d 413, 417-18.

A different question is presented as to whether plaintiff Kliner may pursue this action in the Du Page County appeal. Defendant contends Kliner’s cause is not ripe for determination in declaratory judgment as the underlying case still pends and no actual controversy regarding the return of Kliner’s bail deposit presently exists. (Howlett v. Scott (1977), 69 Ill. 2d 135, 141, 370 N.E.2d 1036, 1038; Greene v. Village of Reynolds (1976),35 Ill. App. 3d 998, 1000, 342 N.E.2d 834, 836.) We do not agree.

Plaintiff Kliner would appear to be in the immediate danger of sustaining direct injury by the loss of 10% of his bail deposit to the circuit clerk as costs, and we conclude that an actual controversy is present sufficiently to permit this action. If Kliner fulfills the obligation of his bond and the circuit clerk then follows the statute, the clerk will undoubtedly retain the challenged bail deposit costs as he is charged to do under the statute. (See Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450, 389 N.E.2d 529, 531, and Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298, 300.) We will, therefore, consider the issues presented by Kliner’s appeal.

We note that the constitutionality of the administrative cost provision contained in section 110 — 7(f) has been upheld by our supreme court in Schilb v. Kuebel (1970), 46 Ill. 2d 538, 264 N.E.2d 377, aff’d (1971), 404 U.S. 357, 30 L. Ed. 2d 502, 92 S. Ct. 479, as conforming to fundamental concepts of due process and equal protection of the law. It was again upheld in Andrews v. Danaher (1976), 62 Ill. 2d 268, 342 N.E.2d 49, against the claim the State unlawfully imposed upon an accused a fee for exercising his constitutional right to bail. The arguments advanced by plaintiff here were not considered in those cases. However, in Sanko v. Carlson (1977), 69 Ill. 2d 246, 249, 371 N.E.2d 613, 615, the court rejected as without merit an argument that the fee charged by the clerk of the circuit court for filing a tax objection violated article VII, section 9(a), of the constitution.

Plaintiff Kliner contends that article VII, section 9(a), of the constitution prohibits fees based upon “funds disbursed or collected” and, as the funds for bail bond costs are paid into the county treasury from which the clerk’s office is funded, it is an unconstitutional county fee. Plaintiff argues that section 9(a) prohibits all fees received by the county which are based upon funds disbursed or collected, even if not collected by a county officer. Defendant essentially contends that the restrictions of article VII, section 9, relate only to officers and employees of units of local government and do not apply to the clerk of the circuit court.

Section 110 — 7 of the Code of Criminal Procedure of 1963 provides for the posting of bail for release from custody by a person who has been arrested and for whom bail has been set by the court upon executing a bail bond and depositing with the clerk of the circuit court a sum of money equal to 10% of the bail. It further provides:

“When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. However, in no event shall the amount retained by the clerk as bail bond costs be less than $5.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f).

The bail bond costs so received by the circuit clerk are not kept by that office, but are deposited with the county treasurer as is required by section 2 of “An Act to provide for the timely deposit of fees ***” (Ill. Rev. Stat. 1979, ch. 85, par. 722); it states that “[a]ll elected or appointed officials of units of local government, and clerks of the circuit courts, *** shall deposit all such collected fees upon receipt with the county treasurer ***.” (Emphasis added.) Other statutes require the county board to fund the office of clerk of the circuit court for salaries and other costs of operation. (See Ill. Rev. Stat. 1979, ch. 25, pars. 18, 19, 20, 27.3; Ill. Rev. Stat. 1979, ch. 34, pars. 432, 2101, 2104.) No question is raised by the complaint in the present case that bail bond costs are either retained personally by the circuit clerk or applied by him directly to the expenses of his office. See Kotche v. County Board (1980), 87 Ill. App. 3d 1127, 409 N.E.2d 501.

Article VII of the Illinois Constitution of 1970 relates to local government and its section 1 defines “units of local government” as

“counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.” Ill. Const. 1970, art. VII, sec. 1.

Section 9 of article VII of the constitution, entitled “Salaries and Fees,” provides that,'

“(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.
(b) An increase or decrease of the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” (Emphasis added.) Ill. Const. 1970, art. VII, sec. 9(a)(b).

It is clear that section 9(a) of article VII of the constitution prohibits salaries and office expenses of units of local government from being paid directly from fees collected by such units and, also, prohibits the charging of fees which are based upon funds disbursed or collected or the levy and extension of taxes by such units. (See, e.g., DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413; Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197; Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 357 N.E.2d 1157; City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543.) In each of these cases, relied upon by plaintiff, the fees held to violate these constitutional restrictions were collected by officers of units of local government for services rendered by their county offices, i.e., county treasurer, sheriff and recorder of deeds.

In the present case, however, the defendant circuit clerk is a nonjudicial official of the judicial branch of State government and is not a county officer or agent. (Drury v. County of McLean (1982), 89 Ill. 2d 417, 424, 433 N.E.2d 666, 667.) The question then becomes whether the proscriptions of article VII, section 9(a), apply to the clerk of the circuit court or attach to fees collected by that office when deposited in the county treasury.

In a similar context in Village of Oak Lawn v. Zagel (1981), 96 Ill. App. 3d 254, 421 N.E.2d 251, appeal denied (1981), 85 Ill. 2d 567, the court held that local government article VII of the constitution did not apply to the State thus permitting the State treasurer to withhold as a fee a percentage of tax funds collected by the State on behalf of units of local government. The Zagel court found that both the terms of section 9(a), article VII, and the Record of Proceedings of the Constitutional Convention made clear that the prohibition against fees based on the collection of funds applies only to units of local government. The Attorney General has also concluded that the provisions of section 9, article VII, do not apply to the clerks of the circuit court as they are not officers of a unit of local government. See 1977 Ill. Att’y Gen. Op. 112; 1977 Ill. Att’y Gen. Op. 159; 1973 Ill. Att’y Gen. Op. 171.

We agree with this reasoning and conclude article VII, section 9(a), of the 1970 Illinois Constitution does not apply to the clerks of the circuit court.

Nor are we persuaded that the deposit in the county treasury by the circuit clerk of the retained bail bond costs somehow impresses upon these funds the prohibitions of article VII of the constitution, as suggested by plaintiff.

The operation of a bail bond deposit system under section 110 — 7 is an administrative function of the circuit clerk’s office, and a fee requirement to help defray the cost of court services is a traditional concept recognized as valid. (Schilb v. Kuebel (1970), 46 Ill. 2d 538, 548, 264 N.E.2d 377, 382, aff’d (1971), 404 U.S. 357, 30 L. Ed. 2d 502, 92 S. Ct. 479.) The circuit clerk holds bail bond funds deposited with the office under the authority of the court to be disposed of as directed by statute (A-1 Lithoplate, Inc. v. AFS Publishing Co. (1978), 66 Ill. App. 3d 560, 562, 384 N.E.2d 395, 396), and is so directed to deposit all fees collected -with the county treasurer (Ill. Rev. Stat. 1979, ch. 85, par. 722). In Kotche v. County Board of Winnebago County (1980), 87 Ill. App. 3d 1127, 409 N.E.2d 501, this court found that section 2 of “An Act to provide for the timely deposit of fees ***” (Ill. Rev. Stat. 1979, ch. 85, par. 722) met constitutional requirements. In Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 357 N.E.2d 1157, the court held that a statute allowing county treasurers to retain 4% of State inheritance and transfer taxes collected by them violated article VII, section 9(a), of the constitution, as a fee based upon funds collected by the county treasurer, and was not, in that case, an authorized distribution of State funds to counties. The court noted, however, its decision did not reflect adversely upon the common and accepted practice of sharing State revenues with local governmental units. (65 Ill. 2d 325, 329.) We find it noteworthy that in Goldstein, and in each of the other cases in which the supreme court has found violations of article VII, section 9, the fee in question was generated by services performed by a unit of local government. In the present case, however, the bail bond costs retained by the circuit clerk are for administrative services of the judicial branch of State government, as authorized by the legislature. The allocation of this fee, and all other fees and costs received by the circuit clerk, to the county treasury cannot, in our view, be considered to place it under the constraints of article VII of the constitution.

The purpose and intent of the Constitutional Convention in adopting article VII, section 9(a), was to abolish the local government “fee office” system and, in particular, local governmental fees based upon the collection of taxes. (See, e.g., City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543.) This article of the constitution does not, however, purport to regulate the collection or disposition of the bail costs considered in this case or to impose restrictions upon funds received by a unit of local government from a branch of the State government.

Nor, do we consider that the bail bond costs retained by the circuit clerk conflict with the stipulation of article VI, section 14, of the 1970 constitution (Ill. Const. 1970, art. VI, sec. 14) that “[tjhere shall be no fee officers in the judicial system.” In Kotche v. County Board of Winnebago County the court considered the fees received by the circuit clerk and paid over to the county treasurer and concluded the legislature was free from any constitutional restraints to dispose of such fees as provided in section 2 of “An Act to provide, for the timely deposit of fees ***” (Ill. Rev. Stat. 1977, ch. 85, par. 722). 87 Ill. App. 3d 1127, 1130, 409 N.E.2d 501, 504.

Accordingly, for the reasons stated the judgments of the circuit courts of Du Page and Lake Counties will be affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.