author: JUSTICE RIZZI

text:
    NANCY PATRICK, Special Adm’r of the Estate of Kenneth E. Patrick, Deceased, Plaintiff-Appellant, v. VILLAGE MANAGEMENT et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—0335
    Opinion filed December 28, 1984.

      Benjamin & Shapiro, Ltd., of Chicago, for appellant.
    Herbert F. Stride, Ltd., of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Nancy Patrick, as special administrator of the estate of Kenneth E. Patrick, deceased, sought damages for personal injuries resulting from Patrick’s fall down a stairway in an apartment building. The court dismissed plaintiff’s complaints against the alleged owners of the premises, Avenue State Bank as trustee under trust No. 1193, Village Management, Leigh A. and Maureen G. Johnson and Richard A. Panfil. Plaintiff appeals the dismissal of the complaint against Panfil. We affirm.

On June 30, 1977, Kenneth Patrick fell down a stairway at 7 West Augusta in Oak Park. Patrick’s complaint, filed June 6, 1979, named Avenue State Bank as trustee under trust No. 1193 and Village Management as defendants and alleged that they owned the premises where Patrick fell. Summons was served on the bank on June 11, 1979. The bank moved to dismiss the complaint on the ground that it is the holder of naked legal title to the premises under a trust agreement pursuant to which the beneficiaries of the trust control and manage the property. The bank provided the names of the current beneficiaries and the names of the beneficiaries prior to April 13, 1979, Leigh A. and Maureen G. Johnson. The court dismissed the complaint against the bank.

On June 3, 1980, plaintiff filed a first amended complaint adding Leigh A. and Maureen G. Johnson as defendants. Leigh A. Johnson, doing business as Village Management, and the Johnsons individually, moved to dismiss the complaint on the ground that they were not the owners of the premises on June 30, 1977, since the property was sold to Richard A. Panfil and Roger E. Rummer on November 22, 1975, under articles of agreement for deed. Attached to the Johnsons’ motion were Leigh Johnson’s affidavit, in which he stated that he directed the bank to execute the articles of agreement for deed, and a copy of the articles of agreement for deed wherein the bank as trustee is designated as the seller. On September 19, 1980, plaintiff filed a second amended complaint adding Panfil and Ruminer as defendants. On September 25, 1981, the court dismissed the complaint against the Johnsons and Village Management with prejudice. Panfil moved to dismiss the second amended complaint on the ground that it was filed more than two years after the incident and therefore barred by the statute of limitations. The court dismissed the complaint against Panfil.

To overcome the statute of limitations’ bar to her action against Panfil, plaintiff here invokes the relation-back doctrine, which provides that an amendment adding a person as a defendant relates back to the date of the filing of the original pleading if all the following terms and conditions are met:

“(1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of. recovery when the condition precedent has in fact been performed, and even though the person was not named originally as a defendant. ***” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616.)

There is no dispute that plaintiff met the terms and conditions of subsections (d)(1), (d)(2) and (d)(5). The original action was commenced on June 6, 1979, less than two years after the incident, which took place on June 30, 1977. Plaintiff’s failure to name Panfil in the original complaint was inadvertent in that it was due to excusable ignorance regarding the installment sale of the property. The record indicates that the contract of sale to Panfil was not recorded, so plaintiff’s title search did not reveal Panfil’s name in connection with the ownership of the property. Plaintiff acted to add Panfil as a defendant less than three weeks after the Johnsons’ motion to dismiss revealed his existence. The cause of action in both the original and the amended complaints arose out of the same occurrence, Kenneth Patrick’s fall on the stairway. Thus, the dispositive issue here is whether plaintiff met the condition set forth in subsection (d)(3), specifically, whether an installment contract purchaser of real property which is the res of a land trust is a beneficiary of that trust.

Plaintiff argues that a contract purchaser of real property that is the res of a land trust is a beneficiary of that trust. Plaintiff contends that because the contract purchaser has the right to possession and income from the property, he fits the definition of a beneficiary. Further, plaintiff asserts that the contract. purchasers here were merely substituted as beneficiaries of the land trust. We believe that plaintiff’s argument lacks merit.

An Illinois land trust is an arrangement under which legal and equitable title to real property is held by a trustee and the interest of the beneficiary is personal property. (Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 176, 430 N.E.2d 708, 711.) The owner of a beneficial interest in a land trust is accorded four basic powers: (1) to possess, manage and physically control the real estate; (2) to receive all income generated by the property; (3) to direct the trustee in dealing with title to the real estate; and (4) to receive the proceeds of any sale of the property made pursuant to the power of direction. (Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 176, 430 N.E.2d 708, 711.) The owner of the beneficial interest is also empowered to transfer all or any number of the incidents of his beneficial interest through an assignment. 103 Ill. App. 3d 174, 177, 430 N.E.2d 708, 711.

Here, the beneficiaries of the land trust directed the trustee to execute the articles of agreement for deed, thereby essentially directing the trustee to give legal title to the property to the contract purchasers at the specified time. Generally, a contract purchaser becomes the equitable owner of the real property upon execution of the installment contract. (Conner v. First National Bank & Trust Co. (1982), 108 Ill. App. 3d 534, 538, 439 N.E.2d 122, 125.) Thus, upon . execution of the articles of agreement, Panfil and Rummer became equitable owners of the real property which is the res of the land trust. The land trust beneficiaries did not convey their personal property — their interest in the real estate. We believe that the installment sale constituted the beneficiaries’ exercise of their power of direction regarding title to the property, while retaining their beneficial interest in the property as distinguished from an assignment of their beneficial interest. Legal title is to remain in the trustee for the benefit of the sellers/beneficiaries until the time that the purchasers are entitled to the deed. (Cf. Conner v. First National Bank & Trust Co. (1982), 108 Ill. App. 3d 534, 537, 439 N.E.2d 122, 125.) The beneficiaries of the land trust exercise certain rights by virtue of a contract — the trust agreement. (H. Kenoe, Land Trusts sec. 1.11 (Ill. Inst. Cont. Leg. Educ. 1981).) The contract between the purchasers and the trustee does not confer beneficiary status on the purchasers. We therefore conclude that, by serving the bank as trustee of the land trust, plaintiff did not satisfy the condition of the relation-back doctrine set forth in subsection 2— 616(dX3) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(dX3)), because the additional defendants were not the beneficiaries of the land trust. Having determined that plaintiff did not meet the condition set forth in subsection (d)(3), we need not consider whether Panfil knew about the action so as to satisfy subsection (dX4).

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE G. BOWEL, Defendant-Appellant.
    Third District
    No. 3—84—0214
    Opinion filed January 8, 1985.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellant, Lawrence G. Bowel, was indicted for robbery and theft and was convicted of both offenses following a jury trial in Peoria County. The trial court entered judgment solely on the robbery conviction and sentenced the defendant to a five-year term of imprisonment. The defendant appeals.

The defendant contends that: (1) he was deprived of his right to trial by an impartial jury because the trial court refused to ask prospective jurors supplemental questions tendered by the defendant regarding his theory of mistaken identification; (2) the trial court denied him due process of law and a fair trial by refusing to admit testimony from a neighbor about a statement against penal interest by a person whom the defense accused of committing the offense; (3) the trial court erred by refusing to let him appear before the jury without handcuffs when the verdict was returned and the jurors were polled; and (4) his conviction for robbery should be reversed because the evidence does not establish that the snatching of the complainant’s purse was accomplished by the use of force.

The facts pertinent to this appeal are as follows. The victim, De-lorise Thomas, and her friend, May Ann Hall, drove to downtown Peoria on September 12, 1983. They arrived just after midnight and parked on Walnut Street. As the women began to cross the street, they noticed four black males at the corner of Adams and Walnut. When Thomas was at the middle of Walnut, one of the four men broke away from the group and approached her. When the man reached Thomas, he grabbed her left hand with his left hand and pulled the purse from her with his right hand. The man looked up and smiled at Thomas and then fled.

Thomas and Hall reported the incident to the police. Both women described the assailant as having a half-moon shaped scar on his left cheek under the eye, wearing jeans, a T-shirt, and tennis shoes, and carrying a radio with a rope for a shoulder strap. They differed slightly in their estimates of the assailant’s weight and height. Thomas and Hall also described the other three men that had been with the assailant. A short time later two men were brought back to the station. Neither man was the assailant or had a scar, but Hall indicated that both men had been with the assailant.

On September 19, 1983, the defendant talked with Officer Millard at the Peoria police station. The defendant said that he had been with his brothers, Michael Bowel and John Griffin, and a friend, Glen Cooley, on the night of the incident. As they were walking near Adams and Walnut they saw two women getting out of a car. Cooley, who was carrying a tape player, walked toward the women and took a purse from one of them. On September 20, 1983, an in-person lineup was conducted. Hall selected the defendant as being the assailant because he had a moon-shaped scar under his left eye. However, Hall said she would not stake her life on her selection. Thomas viewed the lineup separately and also selected the defendant. Thomas was positive of her selection after the men in the lineup were instructed to smile.

The defendant’s first contention is that the trial court deprived him of his right to trial by an impartial jury because it refused to ask prospective jurors two supplemental questions he had tendered regarding the defense theory of mistaken identification. The questions were: “Have you ever greeted a stranger as an acquaintance because you mistook the stranger?” and “Has a stranger ever greeted you because of mistaken identity? Please explain.”

The purpose of a voir dire is to assure the selection of a fair and impartial jury. It is not to be used to pre-educate or indoctrinate a jury. (People v. Teague (1982), 108 Ill. App. 3d 891, 894, 439 N.E.2d 1066, 1069, cert. denied (1983), 464 U.S. 867, 78 L. Ed. 2d 179, 104 S. Ct. 206.) In Illinois, the voir dire examination of prospective jurors is conducted by the trial judge, although the court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate. (87 Ill. 2d R. 234.) The scope and extent of the voir dire examination rests within the trial court’s discretion. People v. Lobb (1959), 17 Ill. 2d 287, 300, 161 N.E.2d 325, 332.

We find that the reasoning set forth in People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68, is dispositive. In Witted, the trial court refused to allow defense counsel to ask the prospective jurors the question, “Do you believe that a person can be mistaken about the identification of another?” In finding that the trial court had properly limited the voir dire examination, the appellate court stated that there was no basis for assuming that a person may harbor a bias or prejudice toward the defense of mistaken identity. Likewise, we are of the opinion that the supplemental questions tendered by the defendant in the case at bar would not have enabled the defendant to ascertain any bias or prejudice on the part of the prospective jurors. Rather, the questions would have served to pre-educate the jurors as to the defendant’s theory of the case.

People v. Zehr (1984), 103 Ill. 2d 472, cited by the defendant, does not dictate that we find otherwise. In Zehr, the Illinois Supreme Court held that the trial court had erred in failing to ask the jury three supplemental questions submitted by the defendant. The first related to the State’s duty to prove the defendant guilty beyond a reasonable doubt. The second related to the drawing of inferences from the defendant’s failure to testify. The third related to the presumption of innocence. In contrast to the questions proposed by defense counsel in Zehr, the two supplemental questions tendered by the defendant here did not go to “the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury.” People v. Zehr (1982), 110 Ill. App. 3d 458, 461, 442 N.E.2d 581, 584, aff’d (1984), 103 Ill. 2d 472.

The defendant’s second contention is that the trial court erred in refusing to admit testimony from a neighbor about a statement against penal interest by the person whom the defense accused of committing the offense.

In support of his theory of mistaken identification, the defendant intended to introduce testimony from three witnesses regarding statements by Glen Cooley that Cooley had taken Delorise Thomas’ purse. Following an offer of proof, Herbert Hogan, who lived with the defendant’s sister, was allowed to testify that Cooley came to his house on the afternoon of September 12, 1983, and stated that he had taken the purse. Following another offer of proof, John Bowel, the defendant’s father, was allowed to testify regarding incriminating statements made by Cooley at a gathering near the Bowel residence on the evening of September 12,1983.

Defense counsel also made an offer of proof in regard to the proposed testimony of Lee Otis Howard, who lived behind the Bowels. It' was at his house that Cooley and several other people had gathered on the evening of September 12, 1983, and at which Cooley made the incriminatory statements to the defendant’s father. The trial court determined that Howard’s testimony was not trustworthy and refused to admit it.

A statement against penal interest will be admitted as substantive evidence provided it satisfies the following four-part test announced by the United States Supreme Court in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, and adopted by the Illinois Supreme Court in People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1. First, the statement must have been made spontaneously to a close acquaintance shortly after the crime occurred. Second, the statement must be corroborated by some other evidence in the case. Third, the statement must be self-incriminating and against the declarant’s interest. Fourth, the declarant must be available for cross-examination. This exception to the hearsay rule is a limited one. (People v. Craven (1973), 54 Ill. 2d 419, 429, 299 N.E.2d 1, 6.) If any one of the four parts is absent, then the hearsay declaration will not be admissible. People v. Foster (1978), 66 Ill. App. 3d 292, 294, 383 N.E.2d 788, 789.

In the present case, the first three factors appear to be met. The statement was made by Glen Cooley to John Bowel, who had known Cooley for 12 years. The statement was made by Cooley on the same day as Delorise Thomas’ purse was taken. The contents of Cooley’s statement were corroborated by John Griffin, who testified that Cooley, not the defendant, had taken the purse. Furthermore, the statement by Cooley that he had taken the purse was certainly against his penal interest.

However, the fourth factor was not met. Several subpoenas were issued commanding Glen Cooley to appear in court. Cooley failed to appear, and the trial court issued a writ of body attachment. However, Cooley remained unapprehended throughout the defendant’s trial. We find that because the declarant, Glen Cooley, remained unapprehended and thus was not available to the State for cross-examination, the trial court properly refused to admit Lee Howard’s testimony.

We note that Lee Howard walked back and forth between several groups of people during the time that Cooley was talking to John Bowel. Thus, he did not hear the entire conversation. However, there is no requirement that the witness have heard the declarant’s entire statement against penal interest. The fact that Howard did not hear the whole statement would affect his credibility, not the admissibility of his testimony. The State would have been able to adequately pursue this matter during cross-examination. We also note that Cooley made the statement to John Bowel, not to Lee Howard. However, there is no requirement that the statement be made to the witness, only that it be made to a close acquaintance. Here, John Bowel was a close acquaintance of Cooley. In addition, Lee Howard had known Cooley for three years.

Furthermore, even if we were to find, and we do not, that the trial court improperly excluded Lee Howard’s testimony, the error would be harmless. The substance of Howard’s testimony was the subject of Herbert Hogan’s and John Bowel’s testimony. Howard’s testimony may have been more credible because he was not related to the defendant. However, Hogan was not related to the defendant either, although he did live with the defendant’s sister. Thus, the trial court’s ruling did not preclude the defendant from presenting the jurors with his theory that Cooley took Delorise Thomas’ purse.

The defendant’s third contention is that the trial court erred by refusing to let him appear before the jury without handcuffs when the verdict was returned and the jurors were polled. In support of this argument the defendant relies on People v. Staley (1977), 67 Ill. 2d 33, 364 N.E.2d 72, People v. Boose (1977), 66 Ill. 2d 261, 362 N.E.2d 303, and People v. Brown (1977), 45 Ill. App. 3d 24, 358 N.E.2d 1362. However, in all three cases, the defendant was shackled before the trier of fact reached a decision on the merits. Here, the jury had reached its verdict. Any prejudice to the defendant which arose from his appearance in handcuffs before the jury at that stage of the proceedings is purely speculative. Therefore, we find that the trial court did not commit reversible error.

However, we believe that under similar circumstances in the future, where no reason for handcuffing a defendant appears on the record, the trial court should grant a defendant’s request to appear before the jury without handcuffs when the verdict is returned and the jurors are polled.

..The defendant’s fourth contention is that his conviction for robbery should be reversed because the evidence does not establish that the snatching of the complainant’s purse was accompanied by the use of force.

“A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 1(a).) “Thus, if no force or threat of imminent force is used in the taking, there is no robbery, although the act may constitute a theft.” (People v. Patton (1979), 76 Ill. 2d 45, 48, 389 N.E.2d 1174, 1175.) Robbery is a Class 2 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 1(b).) Theft from the person is a Class 3 felony, a lesser offense. Ill. Rev. Stat. 1983, ch. 38, par. 16-l(e)(3).

In the present case, Delorise Thomas was asked the following questions by defense counsel during cross-examination:

“Q. Did you have any bruises or marks on your hand as a result of this?
A. No, just kind of like you could tell where my fingers were a little red but not bad ***.
Q. Did you jerk your purse towards you or anticipate in any way that this man was going to take your purse?
A. Not until he already had my hand and he was pushing my hand behind me so I couldn’t pull it to me.
* * *
Q. He snatched the purse from your hand?
A. Yes.”

We believe that People v. Patton (1979), 76 Ill. 2d 45, 389 N.E.2d 1174, cited by the defendant, is dispositive. In Patton, the victim had been carrying her purse in her fingertips down at her side. The defendant grabbed the purse very quickly, and as a result the victim’s arm was thrown back “a little bit.” The State argued that any amount of physical force used to overcome the force exerted by a victim to hold the object taken is sufficient to constitute robbery. However, the lili-nois Supreme Court held that the taking or “snatching” of a purse from a victim does not in itself constitute sufficient use of force, or threat of imminent use of force, to warrant a conviction for robbery.

Here, Thomas was carrying her purse by its opening at her side. The assailant approached Thomas quickly, grabbed her left hand with his left hand, and pulled the purse from her. While Thomas’ hand was pushed back slightly, like the victim in Patton, and she was thus not able to pull it towards herself, this did not constitute sufficient use of force to warrant a conviction for robbery. She was not bruised, cut or injured in any way. Finally, the State does not contend that the defendant is guilty of robbery on the basis that he took Thomas’ purse by “threatening the imminent use of force.”

People v. Kennedy (1980), 88 Ill. App. 3d 365, 410 N.E.2d 520, and People v. Sherman (1980), 87 Ill. App. 3d 937, 409 N.E.2d 486, cited by the State, are distinguishable. Both cases involved the same victim. The victim’s money bag was grabbed, and she was shoved into a garage. Thus, unlike the present case, there was direct evidence of the use of force.

As our supreme court advised in People v. Williams (1961), 23 Ill. 2d 295, 301, 178 N.E.2d 372, 376, “[wjhere it is doubtful under the facts whether the accused is guilty of robbery or larceny [theft] from the person, it is the duty of the court and the jury to resolve that doubt in favor of the lesser offense.” We find that the facts fail to demonstrate that Delorise Thomas’s purse was taken by sufficient use of force to warrant the defendant’s conviction for robbery.

There was, however, sufficient evidence to support a conviction for the crime of theft from the person. Theft may be established by a sufficient showing that one has knowingly obtained or exerted unauthorized control over the property of another with the intent to permanently deprive that person of the use or benefit of the property. Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1.

For the foregoing reasons, the judgment and sentence of the circuit court of Peoria County for the offense of robbery are reversed. This cause is remanded with directions that the court enter a judgment of conviction for the offense of theft from the person pursuant to the jury’s verdict and that the defendant be resentenced for the offense of theft from the person. See People v. Patton (1978), 60 Ill. App. 3d 456, 376 N.E.2d 1099, aff’d (1979), 76 Ill. 2d 45, 389 N.E.2d 1174.

Reversed and remanded with directions.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE McNAMARA

text:
    EUGENE THIELKE, Plaintiff-Appellant, v. OSMAN CONSTRUCTION CORPORATION, Defendant-Appellee (Oosterbaan Scaffolding Company et al., Defendants).
    First District (3rd Division)
    No. 84—541
    Opinion filed January 9,1985.

      Philip E. Howard, Ltd., of Chicago (Philip E. Howard, Paul I. Nemoy, and Michael W. Rathsack, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and Sharon F. Patterson, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Eugene Thielke, appeals from an order of the trial court dismissing his amended complaint for damages for personal injuries against defendant, Osman Construction Corp. Plaintiff timely filed suit against defendant, but misspelled its name. Defendant’s registered agent was served with summons after the expiration of the statute of limitations. Thereafter, plaintiff filed an amended complaint which correctly spelled defendant’s name. Pursuant to section 2— 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(d)), the trial court dismissed plaintiff’s amended complaint because defendant was not served within the limitations period. Plaintiff asserts that section 2 — 401(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 401(b)) allows the correction of a misnomer in a timely complaint, where process was served after the expiration of the statute of limitations, and that the dismissal was unwarranted.

Plaintiff was injured on May 9, 1980, while working at a construction site and filed suit against three defendants on April 30, 1982. Plaintiff erroneously named Osmond & Associates, Inc. (Osmond), as one of the defendants, instead of Osman & Associates, Inc. (Osman). The complaint alleged that Osmond owned certain real estate, acted as general contractor at the construction site, and violated the Structural Work Act. The summons accompanying plaintiff’s complaint directed service on Osmond at a Chicago address. The return of service, dated May 3, 1982, stated that Osmond was “not found.” The return also noted that Osmond had moved its company to Arlington Heights in 1980 and could be found in that suburban telephone directory. The Chicago address was in fact the former address of defendant Osman.

On September 22, 1982, an alias summons and complaint directed to Osmond was served on Stanley Osman, registered agent for defendant Osman, in Arlington Heights. The return of service stated that the summons was served on “Stanley Osman” as registered agent for “Osmon & Associates Construction Corporation.” On November 30, 1982, Osmond entered a special appearance and therefore moved to quash the service of the alias summons. This motion was in fact filed by defendant Osman, although under the name Osmond. Os-mond claimed that the court lacked jurisdiction over it because of improper service. This motion was accompanied by the affidavit of Stanley Osman, which stated that he had received the summons but that he was never an employee or registered agent of Osmond. On January 19, 1983, the trial court quashed the service of summons in an uncontested proceeding.

On January 24, 1983, plaintiff filed an amended complaint changing defendant’s name from Osmond & Associates, Inc., to Osman & Associates, Inc./Osman Construction Corp. The company known as Osman & Associates, Inc., had changed its name to Osman Construction Corp. in 1980. A summons was issued for service on Osman Construction Corp. on January 24, 1983. That summons was quashed by agreement in April because it was served on a person who was no longer an employee of Osman.

On March 15, 1983, an alias summons was issued for service on Osman Construction Corp./Osman & Associates, Inc. On March 25, that summons was served on Stanley Osman, defendant’s registered agent and the same individual who was served six months earlier. In October 1983, the trial court granted defendant’s motion to dismiss plaintiff’s amended complaint pursuant to section 2 — 616(d) of the Code of Civil Procedure. The trial court held that the complaint was time-barred and that plaintiff could not correct the misnomer where defendant had not been served within the limitations period. The court also denied plaintiff’s motion for rehearing.

Plaintiff contends that the trial court erred in applying section 2— 616(d) to a misnomer situation. He maintains that section 2 — 401(b) of the Code of Civil Procedure applies and allows the correction of a misnomer in a complaint where process was served after the expiration of the statute of limitations.

Section 2 — 401(b) applies in those cases where the proper party or real party in interest is sued under the wrong name. (Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131; Borkoski v. Tumilty (1977), 52 Ill. App. 3d 839, 368 N.E.2d 136.) Section 2 — 401(b) provides:

“Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 401(b).)

There is no provision in section 2 — 401(b) that the misnamed defendant be served within the limitations period. (See Dunavan v. Heritage House Nursing Home (1984), 121 Ill. App. 3d 813, 460 N.E.2d 75; Hatcher v. Kentner (1983), 120 Ill. App. 3d 571, 458 N.E.2d 131.) Therefore, if section 2 — 401(b) applies, then service upon the misnamed defendant after the statute of limitations has expired would not bar the suit, provided that plaintiff used reasonable diligence in obtaining service on defendant. (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) However, in cases of mistaken identity where the wrong party is sued, in contrast to misnomer situations, section 2 — 616(d) applies and service is required before the running of the statute of limitations. See Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355.

Consequently, we must decide whether the error was a misnomer or whether plaintiff mistakenly sued the wrong party. In making such a decision, the pivotal inquiry is whom did plaintiff intend to sue. (Clinton v. Avello (1982), 105 Ill. App. 3d 336, 434 N.E.2d 355.) The complaint here demonstrates that plaintiff intended to sue the general contractor and owner of the real estate where plaintiff was injured, Osman Construction Corp. Plaintiff initially directed service to Osman’s former Chicago address. Moreover, plaintiff actually served Osman’s registered agent, Stanley Osman, although the summons spelled defendant’s name as Osmond. It seems clear that plaintiff did not have a mistaken belief as to the identity of defendant. This conclusion is enforced by the fact that there is no corporation in existence named Osmond. Plaintiff clearly intended to sue the real party in interest, Osman Construction Corp. Plaintiff merely misspelled the name Osman as Osmond, for which we believe the misnomer statute, section 2 — 401(b), provides relief. We hold that it was error to apply section 2 — 616(d) to the present situation.

The amended complaint should not have been dismissed, if service was proper on the misnamed defendant. A party may be served with process after the statute of limitations has expired if reasonable diligence is used in obtaining service on that party. (87 Ill. 2d R. 103(b).) Defendant contends that, since it was not served with process until IOV2 months after the statute of limitations had run, plaintiff did not exercise due diligence.

Defendant was served, although misnamed, through Stanley Osman, its registered agent, 4V2 months after the limitations period had expired. Although this service was quashed, it was done so on the technicality that Stanley Osman was not the registered agent for “Osmond.” Moreover, the motion to quash the affidavit did not mention that Stanley Osman was the owner and registered agent for Osman & Associates, Inc., even though Osman knew from the allegations of the complaint that it was the intended defendant. Further, defendant spe-dally appeared under the name Osmond & Assodates, instead of identifying itself as Osman & Assodates. After the hearing on the motion to quash, plaintiff discovered the misnomer and filed an amended complaint within one week. The amended complaint corrected the spelling of Osmond to Osman and corrected the complaint to reflect the corporate name change. Service was made on Stanley Osman two months later. We conclude that the facts established that plaintiff used reasonable diligence in obtaining service on defendant, where the length of time before service was extended by the misnomer. (See Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) We hold that service on defendant was proper.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE STAMOS

text:
    HATTIE MURPHY, Adm’r. of the Estate of George Lee Murphy, Jr., Deceased, Plaintiff-Appellant, v. ADRIAN PETERSON, Defendant (Underwriters at Lloyd’s of London, Magill Agency, Garnishee Defendant-Appellee).
    First District (2nd Division)
    No. 84—311
    Opinion filed December 28, 1984.

      Holland H. Stimson, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller and Hugh C. Griffin, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises out of a garnishment action (nonwage) brought by plaintiff, Hattie Murphy, against defendant, Underwriters at Lloyd’s, London, Magill Agency (Lloyd’s).

On June 16, 1977, plaintiff filed a wrongful death complaint solely against Adrian Peterson. Plaintiff alleged that, on April 19, 1977, Adrian Peterson negligently fired a weapon, thereby causing the death of plaintiff’s decedent, George Murphy, while Mürphy was at or near the 400 block of North Avers Avenue, in Chicago. Adrian Peterson had previously been convicted of involuntary manslaughter based upon his actions on April 19, 1977, which resulted in the death of George Murphy. Adrian was apparently guarding his mother’s house, vacated because of a fire, when he shot and killed George Murphy. Adrian erroneously believed that Murphy was a burglar he had confronted in the house the night before. In the wrongful death action, plaintiff sought damages against Adrian in the amount of $100,000.

The wrongful death case was tried without a jury by stipulation of counsel. On May 9, 1983, the trial court entered a $90,000 judgment in favor of plaintiff and against Adrian as follows:

“This cause coming on for trial before this Court, the jury having been waived, the Court finds as follows:
1. The defendant, Adrian Peterson, was negligent in causing the death of George Lee Murphy, Jr.
2. Because of his negligence the defendant, Adrian Peterson, is found liable to plaintiffs in the amount of $90,000.00.
It is hereby ordered that judgment be entered in favor of the plaintiffs and against the defendant in the amount of $90,000.00.”

Plaintiff alleges that defendant herein, Lloyd’s, was notified of this action, and Lloyd’s does not dispute the point. However, it cannot be determined from the record exactly when Lloyd’s received notice of the action. In the wrongful death action, plaintiff filed interrogatories to defendant Adrian on February 8, 1978, inquiring as to the existence of liability insurance covering defendant. It could be inferred that plaintiff found out about the policy issued by Lloyd’s to Adrian’s mother as a result of this interrogatory. On July 28, 1981, plaintiff filed a request to produce the mother’s homeowner’s policy. The affidavit for garnishment was filed on August 31, 1983, and, as stated above, the judgment against Adrian was entered on May 9, 1983.

From July 8, 1976, to July 8, 1977, Lloyd’s had issued an insurance policy to Florence M. Peterson. The policy was a “surplus line policy,” meaning that licensed Illinois insurers had refused to write the risk. The policy provided:

“Insured’s Name and Mailing Address
Florence M. Peterson
430 North Avers Avenue, Chicago, Illinois
* * *
In consideration of the Provisions and Stipulations Herein *** and of the Premium Specified * * * this Certificate *** does insure the Insured named in the Declarations above and legal representatives ***.”

Coverage E of the policy was a $25,000 personal liability provision. Coverage E provided in full:

“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company’s liability has been exhausted by payment of judgments or settlements.”

Adrian Peterson was not named as an insured under any section or provision of the policy.

After entry of the $90,000 judgment against Adrian, plaintiff filed an affidavit of garnishment against Lloyd’s as insurer of Adrian Peterson. Lloyd’s answered “no funds” and filed a memorandum supporting its position that its policy did not insure Adrian. Plaintiff filed a memorandum supporting the contrary position. The garnishment judge dismissed the action, stating that the policy only covered Florence Peterson. Plaintiff appeals the dismissal order.

Plaintiff’s first contention on appeal is that Adrian was an “insured” under his mother’s homeowner’s policy. Plaintiff advances essentially three arguments in support of her contention: First, that Adrian was acting as his mother’s agent when he was guarding the house and that the term “insured” in the personal liability provision should include “agents”; second, that because the policy variously refers to “named insured,” “named insured and legal representatives,” “named insured and spouse,” “named insured’s household,” and “insured” that the policy is ambiguous and should be construed against Lloyd’s, thereby supporting the inference that Adrian should be included as an insured under the personal liability provision; third, that Adrian is a “legal representative” as that term is used in the provision on the first page of the policy, quoted above. Our analysis shows that all three arguments are without merit.

If a provision of an insurance contract is ambiguous, it will be construed against the drafter of the instrument, the insurer. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.) If the policy is clear and unambiguous, the court will apply the provisions as written. (88 Ill. 2d 1, 5.) The words of the policy will be given their plain and ordinary meaning, and courts should not strain to find an ambiguity where none exists. 88 Ill. 2d 1, 5.

With reference to the above rules, the policy in this case is not ambiguous and will be applied as written. Plaintiff has taken a number of references from various provisions of the policy and asks this court to add them together in the plaintiff's hope that their sum will equal an ambiguous policy. Plaintiff’s cited references are all taken from various portions of the policy, each portion written with an eye toward a particular risk and aimed at explaining the coverage purchased by the insured. The various references to “named insured,” “insured,” “named insured and spouse,” etc., however, cannot be equated with an ambiguous policy. Viewed as a whole, the provisions clearly explain the perils insured against and the extent of the coverage. Applying the provisions of the policy central to this case, as written, it can be seen that the policy specifically names Florence Peterson as the insured, not Adrian, and states that the policy covers “the insured named in the Declarations above [Florence Peterson] and legal representatives.” The personal liability provision, as written, covers the “insured” and no one else, save for legal representatives, due to the proviso on page one of the policy. Consequently, plaintiff’s first argument is unfounded. Even assuming Adrian was acting as his mother’s agent while he was guarding the house, “insured,” as used in the personal liability provision, does not by its terms include agents.

Plaintiff’s second argument is equally unpersuasive. The various phrases quoted by plaintiff, as stated above, do not demonstrate that the policy is ambiguous and do not indicate additional persons insured under the terms of the policy, as plaintiff contends. These phrases variously refer to persons who would be likely recipients of benefits paid to the insured, Florence Peterson, in the event a claim was filed by her and paid by Lloyd’s.

Plaintiff’s third argument is that Adrian is a “legal representative” within the proviso on page one of the policy. Plaintiff argues that because that phrase is not defined in the policy, it should be construed as being broad enough to include an agent or servant acting on behalf of the named insured. Further, because the phrase is in the plural form, i.e., “legal representatives,” it cannot solely refer to an executor or administrator and is, at the least, ambiguous enough to be construed against Lloyd’s. Plaintiff has not, however, cited any authority for its assertions, and this court will not strain to find an ambiguity where none exists.

In Hamilton v. Barley (1915), 266 Ill. 542, 107 N.E. 798, our supreme court construed the phrase “legal representatives’ ’ as it was used in a life insurance contract. The policy there provided: “ ‘In the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then to be payable to the legal representatives of the deceased member.’ ” (266 Ill. 542, 544.) The appellant asserted that the term “legal representatives,” as used in the contract, meant “heirs or next of kin.” The supreme court, relying on two of its prior decisions, affirmed the general rule that the term “legal representatives” must be understood in its ordinary meaning, namely, administrators or executors, unless the policy or the surrounding circumstances indicates that the phrase was not used in its ordinary sense or was intended to refer to anyone other than executors and administrators. (Hamilton v. Barley (1915), 266 Ill. 542, 545-46; accord, Johnson v. Van Epps (1884), 110 Ill. 551, 559-61.) There is nothing in the language of this policy, and plaintiff has pointed to no extrinsic facts indicative of the parties’ intention that the term “legal representatives” was used other than in its ordinary sense. The fact that the phrase is in the plural is irrelevant in light of the manner in which our supreme court defined it in the Darley case. Under these facts, therefore, Adrian was not his mother’s legal representative. Additionally, although no Illinois cases were found addressing the point, we agree with the cases from other jurisdictions that do not include “agents” within their definition of “legal representatives.” See William F. Steck Co. v. Springfield (1972), 151 Ind. App. 671, 679, 281 N.E.2d 530, 535 (interpreting a State statute); Insurance Cos. v. Scales (1899), 101 Tenn. 628, 635, 49 S.W. 743, 745 (interpreting an insurance policy); Metzger v. Manchester Fire Assurance Co. (1894), 102 Mich. 334, 63 N.W. 650 (interpreting provisions of a fire insurance policy).

Plaintiff’s second point on appeal is that Lloyd’s is estopped from raising policy defenses to coverage. Plaintiff contends that when an insurance company takes the position that a complaint potentially alleging coverage is not covered by a policy that outlines the insurer’s right and duty to defend, as here, the company cannot simply refuse to defend. It must defend under a reservation of rights or seek a declaratory judgment as to coverage. Failing to do so estops the company from later raising policy defenses to coverage and renders the company liable for the award.

Our supreme court has recently addressed the duty to defend issue on three different occasions. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 442 N.E.2d 245; Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079; Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104.) In Conway, the court stated: “An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage.” (92 Ill. 2d 388, 393.) Consequently, even though the duty to defend is broader than the duty to indemnify (Murphy v. Urso (1981), 88 Ill. 2d 444, 451), it is the complaint that triggers the duty to defend. (Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 475-76.) If the complaint against the insured raises a possibility of coverage, then failing to defend will estop the insurer from denying coverage in a suit to collect the judgment. (88 Ill. 2d 469, 475.) The principles of these cases disclose two requirements which must be satisfied before an insurer’s duty to defend arises. First, the action must be brought against an insured. Second, the allegations must disclose the potential of policy coverage. MFA Mutual Insurance Co. v. Crowther, Inc. (1983), 120 Ill. App. 3d 387, 390, 458 N.E.2d 71.

In the present case, the complaint was filed solely against Adrian Peterson. Nowhere does the complaint mention the name of the insured, Florence Peterson. Nor does the complaint contain any allegation even hinting at the theory that Adrian was acting as his mother’s agent. Under these circumstances, the possibility of coverage cannot be inferred merely because the son of the insured is named in a lawsuit. Also, even though the duty to defend is broader than the duty to indemnify (Murphy v. Urso (1981), 88 Ill. 2d 444, 451), this rule will not"be extended to require insurance companies to defend suits that are literally devoid of any allegation suggesting coverage, as in the instant case. We find that Lloyd’s duty to defend was never triggered by plaintiff’s complaint and, consequently, that Lloyd’s is not estopped from denying coverage.

Based upon the foregoing reasons, the order of the garnishment judge dismissing plaintiff’s action was proper. Accordingly, the entry of the order of dismissal against plaintiff is affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.


author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent, v. THE POLLUTION CONTROL BOARD, Respondent (Santa Fe Park Enterprises, Inc., Petitioner).
    First District (4th Division)
    No. 84—126
    Opinion filed December 27, 1984.
    Rehearing denied January 23, 1985.

      Richard J. Kissel, Jeffrey C. Fort, and Frederick L. Moore, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (William J. Barzano, Jr., Assistant Attorney General, of Chicago, of counsel), for the appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This appeal involves the constitutionality of an enactment by the Illinois General Assembly which excludes from the regulatory purview of the Illinois Pollution Control Board (the Board) noise emissions emanating from sporting events. The People of the State of Illinois, represented by the Attorney General, initiated this action in March, 1976, by filing with the Board a complaint against Santa Fe Park Enterprises, Inc. (Santa Fe), a corporation owning and operating a motor racing facility, alleging that Santa Fe had violated through certain noise emissions section 24 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. lll^a, par. 1024) and Pollution Control Board Rule 102 (35 Ill. Adm. Code 900.102).

During the pendency of this proceeding, the Illinois General Assembly, on two separate occasions, enacted legislation intended to remove from the Board’s jurisdiction complaints concerning noise emissions from sporting events, and particularly to prohibit enforcement of the Board’s noise regulations applicable to motor sports facilities. When the first exemption statute became effective in October 1978, the Board dismissed the instant complaint and the Attorney General appealed. In that case, People v. Pollution Control Board (1980), 83 Ill. App. 3d 802, 404 N.E.2d 352, this court held the exemption statute unconstitutional as an improper delegation of law-making powers and remanded the cause for further proceedings.

In September, 1981, the General Assembly enacted Public Act 82 — 654, the statute involved in the instant appeal. Public Act 82— 654 served to exclude from the Board’s regulatory purview “organized amateur or professional sporting activity,” which includes “motor sports.” Thereafter, on September 23, 1983, the Board issued an order wherein it declared that Public Act 82 — 654 amounted to an unreasonable limitation of the Illinois Constitution’s article XI, section 2, right to a healthful environment, and thus was unconstitutional. Santa Fe then, pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), filed application for an interlocutory appeal to this court, raising the following certified question of law on appeal:

“Whether the Board correctly determined that Public Act 82 — 654 is a constitutionally impermissible legislative enactment.”

The source of law which gives rise to the instant dispute is found in article XI of the Illinois Constitution of 1970. (Ill. Const. 1970, art. XI.) Article XI provides:

“Sec. 1. Public Policy — Legislative Responsibility
The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations. The General Assembly shall provide by law for the implementation and enforcement of this public policy.
Sec. 2. Rights of Individuals
Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.”

In order to implement the public policy to provide and maintain a healthful environment, the General Assembly enacted the Environmental Protection Act (EPA). (Ill. Rev. Stat. 1979, ch HV-k, par. 1001 et seq.) The EPA provides for the creation of the Pollution Control Board to define and regulate the environmental control standards for the State. (Ill. Rev. Stat. 1979, ch. llN/a, par. 1005.) Further, the Board derives its jurisdiction to entertain complaints such as the original complaint from section 24 of the EPA, which states:

“No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity, so as to violate any regulation or standard adopted by the Board under this Act.” Ill. Rev. Stat. 1979, ch. IIIV2, par. 1024.

The Board’s noise regulations, which directly form the basis for the instant complaint, were established pursuant to section 25 of the EPA (Ill. Rev. Stat. 1979, ch. lll1^, par. 1025), which reads in pertinent part:

“The Board *** may adopt regulations prescribing limitations on noise emissions beyond the boundaries of the property of any person and prescribing requirements and standards for equipment and procedures for monitoring noise and the collection, reporting and retention of data resulting from such monitoring.
The Board shall, by regulations under this Section, categorize the types and sources of noise emissions that unreasonably interfere with the enjoyment of life, or with any lawful business, or activity, and shall prescribe for each such category the maximum permissible limits on such noise emissions.”

When enacted in 1981, Public Act 82 — 654 served to amend EPA sections 25 and 3(v) so as to exclude certain sporting and entertaining events from the Board’s noise regulations. Public Act 82 — 654 amended section 25 to provide:

“No Board standards for monitoring noise or regulations prescribing limitations on noise emissions shall apply to any organized amateur or professional sporting activities ***.” (Ill. Rev. Stat. 1983, ch. llV-k, par. 1025.)

Public Act 82 — 654 further amended section 3(v) to define organized amateur or professional sporting activity as:

“[A]n activity or event carried out at a facility by persons who engaged in that activity as a business or for education, charity, or entertainment for the general public, including all necessary actions and activities associated with such an activity. This definition includes, but is not limited to sheet, trap, or shooting sports clubs in existence prior to January 1, 1975, organized motor sports, and sporting events organized or controlled by school districts, units of local government, state agencies, colleges, universities or professional sports clubs offering exhibitions to the public.” (Ill. Rev. Stat. 1983, ch. lll1^, par. 1003(aa).)

As a result of these amendments, the Board, in response to a constitutional challenge, issued an order as follows:

“The Board finds that P.A. 82 — 654’s removal of most sporting events noise from the purview of the act amounts to an unreasonable (as opposed to a permissibly reasonable) limitation of the Article XI, Section 2 enforcement of the right to a healthful environment. Deletion of the sole statutory cause of action when coupled with elimination of the Board Forum, which can provide speedier and less costly adjudication than can most overburdened circuit courts, renders the right to combat this type of noise pollution virtually meaningless.”

On appeal, Santa Fe contends that this court should reverse and vacate the order of the Board for either of two reasons. First, Santa Fe argues that the Board is without authority to. decide the constitutionality of the instant statute and thus the Board’s order is void. Alternatively, Santa Fe argues that even if the Board can determine the constitutionality of Public Act 82 — 654, there is little doubt that Public Act 82 — 654 is a valid exercise of the General Assembly’s legislative power.

With respect to Santa Fe’s first argument on appeal, this court finds that we have jurisdiction and are in a position to decide the instant matter on its merits and therefore we believe it unnecessary to address the argument regarding the Board’s authority.

It is fundamental that the Constitution is not regarded as a grant of powers to the legislative department, but every subject within the scope of civil government rests in the General Assembly unless inhibited by some constitutional provision. (Droste v. Kerner (1966), 34 Ill. 2d 495, 217 N.E.2d 73.) Moreover, the General Assembly is presumed to have acted in a constitutional manner, and its legislation may be overturned only if it is conclusively established to be arbitrary and unreasonable. (Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, 359 N.E.2d 125.) Neither the Board nor the court may inquire into the wisdom and propriety of the legislature’s act and cannot strike down an act because of a disagreement with the policy choice made by the legislature. The court should not substitute its judgment for that of the General Assembly. Pozner v. Mauck (1978), 73 Ill. 2d 250, 383 N.E.2d 203.

The intent of the framers of article XI of the 1970 Illinois Constitution is ascertainable through the committee comments and the recorded proceedings of the constitutional debates. The comments reveal that the pivotal point of article XI was standing:

“The Committee emphasizes that this Section affords individuals the opportunity to seek relief. It wants to be very clear that it does not, by this Section (or by any Section in this Article for that matter) create or establish a new remedy. Nor does this Section assume the individual’s ability to prove a violation of his right. It merely declares that individuals have ‘standing’ to assert violations of his right.” (Ill. Ann. Stat., 1970 Const., art. XI, sec. 2, Constitutional Commentary, at 276 (Smith-Hurd 1971).)

Furthermore, Chairman McCracken indicated that the Committee did not intend article XI to create any new substantive rights; it merely intended to create standing for individuals to represent the public interest. (4 Record of Proceedings, Sixth Illinois Constitution 3008, 3014 (1970).) Expanding on the concept of standing, the Committee stated:

“Because the wrong here has reached crisis proportions and because it affects individuals in so fundamental a way, the Committee is of the view that the ‘special injury’ requirement for standing is particularly inappropriate and ought to be waived. Section [2], therefore, allows the individual the opportunity to prove a violation of his right even though that violation may be a public wrong, or one common to the public generally.” Ill. Ann. Stat., 1970 Const., art. XI, sec. 2, Constitutional Commentary, at 277 (Smith-Hurd 1971).

The right of standing was not, however, viewed as unlimited but was “subject to reasonable limitation and regulation as the General Assembly may provide by law.” In describing the focus of the above limitation, the Committee reported:

“The term ‘subject to reasonable limitation and regulation by law’ is included to emphasize not only the leadership function the Committee envisions for the Legislature in this [Article] but also the power of the General Assembly to reasonably limit and regulate the declared ability of the individual to enforce his right ***.
The Committee decided not to specify what it thought were the appropriate limits of legislative limitation and regulation. Rather, it selected the word ‘reasonable’ so as to allow for flexibility and adjustment in the future. The power, of course, could not be exercised so as to effectively deprive the individual of his standing.” Ill. Ann. Stat., 1970 Const., art. XI, sec. 2, Constitutional Commentary, at 277-78 (Smith-Hurd 1971).

In the instant matter, the question for this court’s resolution is whether the Board correctly determined that Public Act 82 — 654 is a constitutionally impermissible legislative enactment. We believe that the Board erred in finding it unconstitutional. The Attorney General, in support of the Board’s position, contends that article XI of the 1970 Illinois Constitution provided standing, subject to reasonable limitations by the General Assembly, to individuals seeking redress for violations of their right to a healthful environment and that together with the EPA, individuals were able to exercise effective publicly enforceable rights to protect against environmental harm instead of what was previously ineffective privately enforceable rights. The Attorney General argues that Public Act 82 — 654 effectively deprived individuals of the standing envisioned by section 2 of article XI because without the power of the Board to regulate organized amateur and professional sporting events, the standing contemplated under article XI for noise pollution caused by such major noise sources evaporates.

This argument misconstrues the meaning of standing. As was revealed through the committee comments and the constitutional debates, the intent of article XI was to remove the special injury requirement for standing, thus enabling an individual the opportunity to obtain a remedy for a public wrong without depending on the Attorney General to initiate the action. (See Ill. Ann. Stat., 1970 Const., art. XI, sec. 2, Constitutional Commentary, at 276-78 (SmithHurd 1971).) Article' XI was drafted to ensure standing, not to create substantive causes of action. (See Morford v. Lensey Corp. (1982), 110 Ill. App. 3d 792, 442 N.E.2d 933.) Public Act 82-654 does not limit the ability of an individual to sue in the public interest to remedy environmental harm caused by noise pollution, but rather simply removes sporting event noise from the Board’s regulatory regime. As was indicated in article XI and as the court in Morford observed, the General Assembly was given the power to regulate and limit enforcement of the individual’s right to a healthful environment. Morford v. Lensey Corp. (1982), 110 Ill. App. 3d 792, 797, 442 N.E.2d 933.

In order for this enactment by the General Assembly to be unconstitutional it must either be prohibited by article XI or any other constitutional provision, or it must be arbitrary and unreasonable. Otherwise, this legislative act will be presumed to be valid. (See Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, 359 N.E.2d 125.) The Attorney General’s deprivation of standing argument has failed to convince this court that Public Act 82 — 654 is prohibited by article XI. Further, the Attorney General has not demonstrated to this court the arbitrariness and unreasonableness of the instant statute. Effectively, what the Attorney General is asserting is that it questions the wisdom and propriety of the General Assembly’s removal of noise pollution from sporting events from the EPA. This is an assertion this court cannot consider. See Pozner v. Mauck (1978), 73 Ill. 2d 250, 383 N.E.2d 203.

Lastly, the Attorney General contends that even if this court finds Public Act 82 — 654 not to be constitutionally infirm under. article XI, we can still affirm the Board’s order based on two additional constitutional arguments that were raised before the Board, but were left unresolved. This contention is incorrect.

The terms of Rule 308 (87 Ill. 2d R. 308) provide an exception to the general rule that an appeal may be taken only from final judgments of the circuit court (87 Ill. 2d R. 301). The Illinois Supreme Court has indicated that such appeals are to be allowed only in certain “exceptional” circumstances. (See People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) Thus, Rule 308 should be strictly construed and sparingly exercised. An appeal thereunder, should be limited to the question certified by the trial court. Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.

In the instant case, the question of law certified by the Board was “whether the Board correctly determined that Public Act 82— 654 is a constitutionally impermissible legislative enactment.” (Emphasis added.) The Board’s order reflected an opinion that Public Act 82 — 654 was “an unreasonable (as opposed to permissibly reasonable) limitation of the article XI, section 2 enforcement of the right to a healthful environment.” As was discussed above, this court does not find Public Act 82 — 654 to be an unreasonable limitation of article XI. Accordingly, because we should limit our review to the question certified and not to additional issues possibly within the subject matter of the question certified, we do not deem it appropriate to address the two additional unresolved constitutional arguments asserted by the Attorney General.

Based on the foregoing discussion, the Board’s order is vacated and this matter is reversed and remanded for further proceedings.

Reversed and remanded.

JOHNSON and ROMITI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD GLENN SAMIER, Defendant-Appellant.
    Third District
    No. 3—84—0013
    Opinion filed January 11, 1985.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, and Charles M. Schiedel and Carroll J. King, both of State Appellate Defender’s Office, of Springfield, for appellant.

      James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Peter M. Tumminaro, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

On July 27, 1983, defendant Donald Samier was convicted of one count of kidnaping, one count of aggravated kidnaping and one count of unlawful restraint. On December 22, 1983, defendant was sentenced to a term of 15 years.

The incident which gave rise to defendant’s arrest occurred on March 25, when Anne Clegg left her high school math class at 9:15 and walked across the school parking lot in order to reach her locker. A man in a green Torino pulled up beside her and asked if she wanted a ride. Anne declined. Defendant then reached through the window on the passenger side of the car and grabbed her arm. Anne testified that he had a knife in the other hand and that he threatened to cut her throat if she did not get into his car. He then pulled her into the car and they drove across the Iowa/Illinois bridge. After stopping at a gas station, where Anne attempted to get out of the car and defendant again brandished the knife, the defendant stopped behind a dumpster in the parking lot of an apartment complex. There a struggle ensued and Anne managed to get out of the car and rim into an apartment building, where she sought help.

The defendant raises the following issues on appeal: (1) whether the trial court erred in refusing to allow defense counsel to cross-examine Anne Clegg as to whether she had a history of running away; (2) whether the knife used by defendant and introduced into evidence by the State failed to satisfy the aggravated kidnaping statute; (3) whether the defendant’s multiple convictions arose from the same act requiring vacation of the convictions for kidnaping and unlawful restraint and resentencing; (4) whether defendant was deprived of a fair trial because the venire contained a disproportionately high number of women.

As to the defendant’s first allegation of error, the defendant argues that the question of whether Anne Clegg had a history of running away from school was the linchpin of his defense, because it would have tended to show that Anne voluntarily entered defendant’s car. The State argues that defendant waived any error by failing to make an offer of proof and, therefore, not properly preserving this issue for appeal. Offers of proof are required for preserving error on appeal unless “a question shows the purpose and materiality of the evidence, and if it is in proper form and clearly admits of an answer relative to the issues.” (People v. Moretti (1955), 6 Ill. 2d 494, 520-21, 129 N.E.2d 709.) Here, the question as to whether the victim was in the habit of running away does not clearly admit an answer relative to the issues, which is evidenced by the fact that the trial judge did not consider the elicited testimony to be relevant. Therefore, the defendant should have made an offer of proof as to the relevance of Anne Clegg’s testimony and what her answer would have been if she had been allowed to answer. It is too late for the defense to explain the relevance of this testimony on appeal. Furthermore, defendant failed to assert this as error in his post-trial motion.

Defendant’s second contention is that the blade of the knife introduced into evidence was not long enough to satisfy the three-inch length required by the kidnaping statute to prove the kidnaper was “armed with a deadly weapon” as described in section 33A — 1. Section 10 — 2(a) of the Criminal Code of 1961 defines aggravated kidnaping as

“(a) A kidnaper within the definition of paragraph (a) of Section 10 — 1 is guilty of the offense of aggravated kidnaping when he: *** (5) Commits the offense of kidnaping while armed with a dangerous weapon, as defined in Section 33A — 1 of the ‘Criminal Code of 1961.’ ” (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(a).)

Section 33A — 1 of the Criminal Code of 1961:

“A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun or any other firearm, sawed-off shotgun, a stun gun or taser ***, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto or any other deadly or dangerous weapon or instrument of like character.” (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 1.)

The defendant argues that the blade of the knife allegedly used by him had to have been at least three inches in length in order for his conviction for aggravated kidnaping to stand, because the statutory elements of aggravated kidnaping require that defendant be armed with a deadly weapon as described in section 33A — 1. Section 33A— 1 describes armed with a deadly weapon as a knife with at least a three-inch blade. Beyond argument, the knife found in defendant’s car and introduced into evidence by the State did not have a blade of at least three inches. However, the statute goes on to state that a category I weapon can be “any other deadly or dangerous weapon or instrument of like character.”

In People v. Lee (1977), 46 Ill. App. 3d 343, 360 N.E.2d 1173, this court considered a similar argument. In Lee, the weapon possessed by the defendant was a walking cane. In Lee, this court stated:

“ ‘A deadly weapon is not necessarily one manufactured for the special purpose of taking animal life, nor need it be of any certain size or description. This court has defined a deadly weapon as “an instrument that is used or may be used for the purpose of offense or defense and capable of producing death. Some weapons are deadly per se, others, owing to the manner in which they are used, become deadly. A gun, pistol or dirkknife is itself deadly, while a small pocket knife [emphasis added in People v. Carter (1951), 410 Ill. 462, 102 N.E.2d 312], a cane [emphasis added in Lee], a riding whip, *** may be so used as to be a deadly weapon.” ***’ ” (People v. Lee (1977), 46 Ill. App. 3d 343, 347-48, 360 N.E.2d 1173, citing People v. Dwyer (1927), 324 Ill. 363, 155 N.E.2d 316.)

This court went on to state that these observations apply to section 33A — 1 of the Criminal Code of 1961. (46 Ill. App. 3d 343, 348, 360 N.E.2d 1173, 1177.) Therefore, we find that because the defendant allegedly used the knife for the purpose of threatening the life of Anne Clegg on two occasions, one when he forced her into his car, and second when he forced her to stay in his car at the gasoline station, and because the knife could have been deadly if used in the manner threatened, the knife possessed by defendant, although the blade was not at least three inches in length, was a deadly weapon under the reasoning of Lee and of this court in People v. Hill (1977), 47 Ill. App. 3d 976, 362 N.E.2d 470.

The third issue raised by the defense is that the multiple offenses of which defendant was convicted were based upon the same physical act and, therefore, the convictions for kidnaping and unlawful restraint must be set aside. The State concedes that all three offenses involved the same physical act but asks that we not remand for re-sentencing because the trial judge did not consider all three convictions when sentencing the defendant, only the conviction for aggravated kidnaping. However, the record does not support the State’s contention. The sentencing order sets out all three offenses, and we will, therefore, remand to the circuit court of Rock Island County for resentencing.

We have not forgotten defendant’s final allegation of error, that the disproportionately large number of women in the venire prejudiced the defendant and failed to meet the sixth amendment’s cross-section requirement of Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692. Taylor v. Louisiana dealt with the opposite situation as the case at bar. In Taylor, the United States Supreme Court considered a situation where women in Louisiana were exempted from jury duty unless they sent in a form which indicated that they would voluntarily serve. This resulted in a disproportionately small number of women on juries. The Supreme Court found that this situation violated the fair cross-section requirement, stating that “the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community ***.” (419 U.S. 522, 528, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.) Far from the situation in Taylor, here the defendant makes no showing that males were systematically excluded from the venire. As the Supreme Court stated in Taylor, “we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” (419 U.S. 522, 538, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.) We, therefore, affirm the conviction for aggravated kid-naping and vacate the convictions for kidnaping and unlawful restraint and remand for resentencing.

Affirmed and remanded with instructions.

HEIPLE and BARRY, JJ., concur.


text:
    E. MANUEL BELVILLE, Plaintiff-Appellant, v. ILLINOIS RACING BOARD, Defendant-Appellee.
    First District (3rd Division)
    No. 84—1452
    Opinion filed December 28, 1984.

      Thomas E Burke, of Phelan & Doyle, Ltd., of Chicago, and Allen J. Kin-caid, of Brush, Colorado, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Susan C. Weidel, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, E. Manuel Belville, appeals from an order of the circuit court of Cook County which upheld a decision of defendant Illinois Racing Board. Defendant ordered that plaintiff’s racing license as a jockey be suspended for life for possession of a battery on the grounds of Sportsman’s Park racetrack on March 30, 1983. Possession of a battery, a small electrical device used to affect the outcome of races by shocking and stimulating racehorses, is prohibited by the Illinois Horse Racing Act and is grounds for suspension or revocation of a racing license. Ill. Rev. Stat. 1983, ch. 8, pars. 37 — 37(a), (c).

On appeal, plaintiff contends that defendant’s decision is contrary to the manifest weight of the evidence; that the statute involved is unconstitutionally vague; that defendant acted unreasonably in imposing a lifetime suspension as a penalty and thus denied due process to plaintiff; that since the board of stewards exonerated plaintiff, defendant could not review that exoneration; and that defendant improperly refused to disclose the identity of its informant.

On March 30, 1983, plaintiff was scheduled to ride the horse Gimme Mo in the first race at Sportsman’s Park. Plaintiff was hired on March 29 when it was learned that the original jockey had a scheduling conflict. Each horse entered in a race has a pony person who, while riding a pony, leads the racehorse and jockey from the paddock to the starting gate and controls the horse during the prerace warmup. The pony person for Gimme Mo in the race was Lisa Zentner, who was hired that morning, also as a result of a scheduling conflict with the original pony person.

Approximately 20 minutes before the race, Jack Halloran, director of security for the racetrack, received a tip from an informant that at the starting gate an electrical device would be given to the jockey on the No. 4 horse, Gimme Mo, in the first race and would be used by the jockey during the race. In response to the tip, Halloran and three security officers stationed themselves in the warm-up area of the track.

One of the officers, Gene Oliver, observed the horses as they moved down the track. After the first three horses passed him, Oliver walked onto the track and called for the No. 4 horse. Plaintiff and Zentner continued down the track and Oliver called them a second time. Before the two riders returned to Oliver, a battery fell between plaintiff and Zentner onto the track. Another officer retrieved the battery and gave it to Oliver.

After a hearing, the board of stewards, on April 2, 1983, found Zentner guilty of possession of a battery and suspended her racing license for three years. Zentner appealed to defendant, and after a hearing, defendant reversed the stewards’ ruling and reinstated Zentner’s license. Defendant also issued a rule to show cause containing a complaint against plaintiff for possession of a battery. After conducting hearings, defendant found that plaintiff possessed a battery on March 30 and suspended his racing license for life. The trial court upheld that decision.

Halloran testified at the Zentner hearing and at plaintiff’s hearing that on March 30 he stood beside the fence with a view of the horses on the track. As plaintiff and Zentner passed in front of him, Hal-loran saw an object, later determined to be a battery, drop from Zentner’s right hand. Halloran stated that Zentner had the lead to plaintiff’s horse in her left hand, and her right hand was empty.

Oliver testified at both hearings that after he shouted at plaintiff and Zentner to bring their horses to him, he saw plaintiff sit back on his horse and move his hands toward his waist. Oliver observed plaintiff fumbling with his hands and saw his hands go to his belt line. At that time, Zentner was holding the reins to her pony in her left hand and the lead to plaintiff’s horse in her right hand. Oliver saw the two riders’ hands move together, and the battery fell from one of the four hands. Oliver was unable to say from whose hand it fell. After the officer who recovered the battery gave it Oliver, Oliver pressed one prong of the battery and heard a buzzing sound. That sound indicated that the battery was live. Oliver testified that he signed the complaint which charged Zentner with possession of a battery. He did not prepare the complaint and merely signed it at the request of superiors. Oliver also prepared a report which summarized information received from Halloran and the other officers. This report recited that plaintiff and Zentner appeared to handle an object which fell from Zentner’s hand. After reviewing the report, Oliver was still unable to say from whose hand the battery fell.

Don Morley, a pony person for another horse in the race, testified at both hearings that when Oliver called for the No. 4 horse, Morley saw plaintiff with his right hand inside his waistband. Morley did not see plaintiff’s hand come out of his waistband, nor did he see the battery fall to the track. Morley saw that Zentner was holding the pony reins in her left hand and the lead to plaintiff’s horse in her right hand.

Gene Ford, another pony person in the race, testified at plaintiff’s hearing that he was looking directly at plaintiff after Oliver called for the No. 4 horse. Ford saw plaintiff reach toward his pants and then place his hand into the top of his waistband. Ford testified at Zentner’s hearing but was asked only if he had seen a battery.

Laurie Lebeck, the person who hired Zentner, testified at Zentner’s hearing that she saw a battery in plaintiff’s hand in 1982. At plaintiff’s hearing, Lebeck testified that she had never seen plaintiff with a battery.

Heriberto Arroyo, the senior steward in Illinois, testified at both hearings. Arroyo knew plaintiff for 16 years, and in that time plaintiff’s integrity was never questioned. Arroyo had never seen a pony person hold both the pony’s reins and the racehorse lead in one hand. Arroyo believed that it would be difficult or impossible for a pony person to pull up from a slow gallop if the reins and lead were held in one hand. Arroyo also believed that a jockey’s belt was one of the most logical places to' conceal a battery. Arroyo stated at plaintiff’s hearing that the witnesses at Zentner’s hearing did not testify under oath.

Benjamin Winnett, a pony person in the race, testified at the Zentner hearing that when Oliver called for the No. 4 horse, Winnett was able to observe Zentner’s hands. She held her pony reins in her left hand and the lead to the racehorse in the right hand. Winnett was unable to see plaintiff’s hands and did not see the battery fall to the ground.

Roger Elie, another pony person in the race, testified at plaintiff’s hearing that he did not see plaintiff place his hands anywhere inside his clothes. Elie did not remember seeing Morley or any other pony person to the right of plaintiff alongside the inside rail.

Lisa Zentner testified at both hearings that she did not know the name of the jockey or the horse she was going to pony until just prior to the race. When Oliver called plaintiff and her over to him on the track, she had the pony rein in her left hand and the lead to the horse in her right hand. Zentner testified that when Oliver called, plaintiff sat back in his saddle and said, “Don’t turn yet.” Zentner ignored plaintiff’s request and turned the horses toward Oliver. Zentner was looking at Oliver and did not see plaintiff drop anything nor did she see his hands go to his waist.

Plaintiff testified at his hearing that when Oliver called, the horses were at a slow gallop. Plaintiff said, “Don’t turn like that” when Zentner attempted to turn his horse too quickly. Plaintiff stated that his whip was in his right hand and that his hands never went inside his pants. His hands were in front of his waist in order to pull up his horse and to prevent stumbling. He did not have a battery, and he did not see Zentner drop a battery. Plaintiff believed that Zentner and her boyfriend Frank Damron were conspiring against him because of anger at the stewards’ unfavorable ruling against Zentner. Plaintiff also testified that Morley and Ford lied at the hearing at Damron’s request.

Plaintiff initially contends that defendant’s decision suspending his racing license for life was contrary to the manifest weight of the evidence.

The permissible scope of judicial inquiry concerning factual determinations by administrative agencies has been limited to ascertaining if the agency decision was contrary to the manifest weight of the evidence. (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371.) The findings and conclusions of an administrative agency regarding questions of fact are to be considered prima facie true and correct. (Douglas v. Daniels (1978), 64 Ill. App. 3d 1022, 382 N.E.2d 90.) And whether plaintiff had possession of the device was a question of fact to be determined by the trier of fact. See People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.

While the testimony was disputed, there was ample, consistent circumstantial evidence in the record to support defendant’s decision that plaintiff was in possession of the battery which was dropped on the racetrack between his horse and Zentner’s pony. Three witnesses, Oliver, Morley and Winnett, testified that both of -Zentner’s hands were occupied at all times. Three witnesses, Oliver, Morley and Ford, testified that they observed plaintiff’s hands go to the waistband of his jacket pants. The only issue before defendant was which of the two riders had possession of the battery. Defendant’s decision that it was plaintiff, not Zentner, who had possession of the battery is supported by the manifest weight of the evidence.

Contrary to plaintiff’s assertion, there was also ample evidence presented that the battery which was recovered on the racetrack was functioning. Oliver testified that when the battery was retrieved from the track he tested it and found that it was a live battery.

Under his manifest weight of the evidence argument, plaintiff also challenges the lack of proof of the chain of custody of the battery. At his hearing, however, plaintiff, who appeared pro se, stated that he was not contesting the chain of custody of the battery. Consequently, plaintiff has waived the issue.

We likewise reject the argument there was a failure to establish that use of the battery would have any effect on the race. We hold that upon proof a jockey had possession of a functioning battery on his person on the racetrack, defendant was entitled to find that device was to be used to affect the speed of the horse in violation of the Act.

Plaintiff next contends that section 37 — 37(a)(3) of the Illinois Horse Racing Act is unconstitutionally vague. The statute reads as follows:

“Sec. 37. (a) It shall be unlawful for any person:
* * *
(3) to have in his possession within the confines of a race track, stables, sheds, buildings or grounds, or within the confines of a stable, shed, building or ground where horses are kept which are eligible to race over a race track of any racing association or licensee, any appliance other than the ordinary whip or spur which may or can be used for the purpose of stimulating or depressing a horse or affecting its speed at any time ***.” Ill. Rev. Stat. 1983, ch. 8, par. 37-37(a)(3).

A statute does not violate the due process clause on the ground of vagueness if the duty is set forth in terms definite enough to serve as a guide to those who must comply with it. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247.) In determining validity, consideration must be given not only to the language of the .statute but also to its purpose and the evil the statute is designed to correct. People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

The statute before us is not unconstitutionally vague. It has clear meaning and contains language precise enough to serve as a guide to those who must comply with it. (See Gillilan v. Illinois Racing Board (1980), 89 Ill. App. 3d 726, 411 N.E.2d 1374.) The statute also serves the purpose of protecting the public interest by ensuring that horse racing is conducted honestly.

Plaintiff also contends that defendant deprived him of due process and acted unreasonably in suspending his license for life. Plaintiff argues that in imposing such a severe sanction defendant did not have sufficient guidelines and standards. We do not agree.

The Act gives defendant broad discretionary power to regulate horse racing, and the statute specifically authorizes defendant to suspend or revoke licenses for conduct which is prohibited. (Ill. Rev. Stat. 1983, ch. 8, par. 37 — 16(a).) The statute satisfies due process by plainly informing a licensee of the conduct which is prohibited and the sanctions which can be imposed. Nor do we believe that the imposition of a lifetime suspension was unreasonable or harsh. The conduct of a jockey found in possession of a battery on a racetrack warrants, the most severe sanction available. (Feliciano v. Illinois Racing Board (1982), 110 Ill. App. 3d 997, 443 N.E.2d 261.) Defendant acted reasonably in suspending plaintiff’s racing license for life.

Plaintiff also maintains that by virtue of administrative res judicata defendant was not authorized to issue its rule to show cause against him. Plaintiff argues that the action was untimely and that since the board of stewards had exonerated him, defendant had no authority to further act.

On April 2, 1983, the stewards conducted a hearing and found Zentner guilty of possession of a battery and suspended her license for three years. On April 14, Zentner appealed that decision to defendant and, on May 3, defendant determined that Zentner’s appeal was timely. Defendant conducted a hearing on May 19, and, after considering all the evidence, reversed the stewards’ ruling and reinstated Zentner’s license. At the same time, defendant determined that the Zentner hearing disclosed probable cause to charge plaintiff with possession of a battery, and it issued a rule to show cause. Thereafter, defendant conducted extensive hearings and on January 28, 1984, it ordered plaintiff’s lifetime suspension.

The Act empowers defendant to investigate any claimed violations and to take appropriate legal and disciplinary action. (Ill. Rev. Stat. 1983, ch. 8, par. 37 — 9(d).) Defendant acted completely within its statutory power when it reversed the stewards’ ruling and then initiated action against plaintiff. Defendant entered the present order only after conducting several hearings and after considering all the. evidence. Its actions were completely proper.

We find no merit in plaintiff’s final contention that he had a right to learn the identity of the informant and that his failure to request that information does not constitute waiver. At the hearing, defendant’s counsel informed plaintiff that defendant would be ready to establish the reliability of its informant. Plaintiff never asked the identity of the informant and never questioned Halloran about the informant. Plaintiff has waived the issue.

For the foregoing reasons, the judgment of the circuit court of Cook County upholding the decision of the Illinois Racing Board is affirmed.

Judgment affirmed.

RIZZI, P.J., and WHITE, J., concur.