author: JUSTICE SULLIVAN

text:
    EMPRESS INTERNATIONAL, LTD., Plaintiff-Appellee, v. RIVERSIDE SEAFOODS, INC., Defendant-Appellant.
    First District (5th Division)
    No. 82—486
    Opinion filed January 13, 1983.

      Clancy, McGuirk & Hulee, P.C., of St. Charles (Tyler G. Neptune, Jr., of counsel), for appellant.
    Teller, Levit & Silvertrust, P.C., of Chicago (Edward S. Margolis, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from a default judgment entered against it in an action for an account stated. We are presented with the question as to whether its contacts with the State of Illinois were sufficient to subject it to the in personam jurisdiction of the Illinois courts pursuant to section 17 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17(l)(a)).

On September 11, 1981, plaintiff filed a complaint alleging that defendant had ordered and received goods from it, for which $3,375.24 had been paid on account but a balance of $9,546.26 was due and owing, and praying for a judgment against defendant in the amount of $10,063.03. Defendant filed a special and limited appearance to contest jurisdiction pursuant to section 20 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20) and moved to quash service of summons. An uncontested affidavit sworn by defendant’s president states that defendant is a Wisconsin corporation which has its sole place of business in Two Rivers, Wisconsin; that it has never owned property in Illinois nor maintained an office, branch, telephone listing, or registered agent here, nor applied for or received a license to do business in Illinois; that in response to direct mail advertising sent to its Wisconsin office, it placed an order for frozen lobster with plaintiff’s office in Chicago, Illinois, on June 25, 1979, and again on June 4, 1980; that both orders were shipped from Chicago, but invoices were sent from plaintiff’s place of business in New York; that all payments were made by it to plaintiff’s New York office; and that it was served at its place of business in Wisconsin.

The record contains no written order of the trial court disposing of defendant’s motion, nor is there a record of proceedings Of the hearing held on November 23, 1981. However, a memorandum of the trial court, commonly called a “half sheet,” bears the notation that the motion was denied, and defendant was given 28 days to answer or otherwise plead. No further action was taken by defendant, and a default judgment was entered against it on January 28, 1982. This appeal follows.

Opinion

Initially, we note that although plaintiff has not questioned the adequacy of the record before us for purposes of review, defendant raised this issue in its initial brief, maintaining that the record is sufficient. Therefore, we have considered defendant’s argument and find Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131, dispositive. There, we also were asked to determine whether the defendant, a nonresident corporation, was subject to the in personam jurisdiction of Illinois courts, and the record before us consisted of plaintiff’s complaint and defendant’s special appearance supported by affidavit. We found this record sufficient, since the question was one of law and all of the facts determinative of that issue were undisputed and contained in the record. Similarly, in the instant case, the facts necessary to determine the issue before us are contained in the record and are undisputed by plaintiff.

We turn then to the question as to whether defendant has had sufficient contacts with the State of Illinois to subject it to the in personam jurisdiction of our courts.

Section 17 of the Civil Practice Act provides, in relevant part, that: This statute reflects a “conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause” (Central Clearing, Inc. v. Omega Industries, Inc. (1976), 42 Ill. App. 3d 1025, 1028, 356 N.E.2d 852, 855); thus, a nonresident defendant must have certain minimum contacts with the forum State “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’ ” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158), and a single act on the part of defendant will suffice for jurisdiction (Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 421 N.E.2d 231) so long as it is one which gives rise to the cause of action (Ill. Rev. Stat. 1979, ch. 110, par. 17(1); Donlon v. Miller (1976), 42 Ill. App. 3d 64, 355 N.E.2d 195) and is an act “by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240). In determining whether sufficient minimum contacts exist, our courts have avoided applying any mechanical tests, looking instead to the facts and circumstances of each case, and although considerable weight is given to the defendant’s voluntary activities (Citizens Bank & Trust Co. v. Pittman (1977), 52 Ill. App. 3d 137, 367 N.E.2d 265), we will also consider such factors as “the nature of the business transaction, the applicability of Illinois law, the contemplation of the parties and the likelihood that witnesses would be found here ” (Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 797, 383 N.E.2d 1379, 1385).

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person *** to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State; ***.” (Ill. Rev. Stat. 1979, ch. 110, par. 17(l)(a).)

Defendant argues that the facts and circumstances of the instant case are similar to those in Artoe v. Mann (1976), 36 Ill. App. 3d 204, 343 N.E.2d 647, where the plaintiff visited defendant’s California office attempting to sell his product line.' Further negotiations took place by telephone after plaintiff returned to Illinois, and an agreement to purchase was reached on a subsequent visit by plaintiff to California, although a purchase order confirming the agreement was later mailed into Illinois by defendant. Plaintiff brought suit here to recover unpaid freight charges, and in finding that our courts lacked in personam jurisdiction over defendant, we noted that defendant had initiated the transaction in California where the agreement would ultimately be completed by plaintiff’s installation of the equipment purchase, and it appeared that defendant’s sole contact with Illinois was the mailing of a formal order to plaintiff in this State.

Plaintiff, however, maintains that the case before us is more analogous to Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App. 3d 965, 304 N.E.2d 27, where this court did find in personam jurisdiction. There, plaintiff, an executive employment agency, sent advertising regarding available job applicants to defendant’s Michigan office. Defendant then called plaintiff in Elinois to inquire about one of the applicants, who was eventually hired after plaintiff arranged for him to contact defendant in Michigan for an interview. We found that this transaction constituted the necessary minimum contacts for purposes of in personam jurisdiction, noting that defendant was under no obligation to respond to plaintiff’s advertisement, and therefore initiated the business transaction by telephoning plaintiff; that the contract was performed in Illinois; and that “defendant knew, or should have known, that it had entered into a contract with an Elinois agency, that the agency would perform its services from its office in Illinois, that the fee, if due, would be paid to plaintiff in Illinois, and that if the fee were not paid as promised, defendant might be liable to suit in the Illinois courts.” 14 Ill. App. 3d 965, 970, 304 N.E.2d 27, 31.

Subsequent decisions have attempted to distinguish the above-cited cases and, in doing so, have suggested certain fact patterns under which transaction of business with an Illinois resident will lead to the exercise of jurisdiction over a nonresident defendant. In the line of cases following Artoe and finding no jurisdiction, we have relied on the fact that plaintiff initiated the transaction (Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 371 N.E.2d 161), that the contract was entered into outside of Illinois (Servo Instruments, Inc. v. Fenway Machine Co. (1980), 92 Ill. App. 3d 509, 415 N.E.2d 34), and that performance of the contract was to take place outside of Illinois (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 395 N.E.2d 1131).

In a parallel line of cases following Cook Associates, we have found jurisdiction when it appeared that the nonresident defendant initiated the transaction and the contract was formed in Illinois (AAAA Creative, Inc. v. Sovereign Holidays, Ltd. (1979), 76 Ill. App. 3d 514, 395 N.E.2d 66; Ward v. Former, Inc. (1975), 27 Ill. App. 3d 22, 325 N.E.2d 812), and that its performance, or the major part thereof, was to be in Elinois (Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 308 N.E.2d 78). Thus, while it is important that defendant initiated the transaction, it is not the sole distinguishing feature of these two lines of cases, as plaintiff argues. Similarly, while the fact that payment was to be made in New York in the instant case, rather than Illinois, is a circumstance to be considered, it does not of itself distinguish this case from Cook Associates, as defendant asserts.

In considering the facts and circumstances of the present case, we note that defendant initiated the transactions in question by sending orders to plaintiff’s Chicago office. Defendant maintains that the initial contact was made by plaintiff when it mailed advertising to defendant in Wisconsin. However, we have twice characterized similar occurrences as mere solicitation, placing no obligation on the defendant to respond. (Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 308 N.E.2d 78; Cook Associates, Inc. v. Colonial Broach & Machine Co. (1973), 14 Ill. App. 3d 965, 304 N.E.2d 27). What is important is that defendant voluntarily entered into a business transaction with an entity he knew, or should have known, was an Illinois resident. In addition, the contract which is the subject matter of this action was formed in Illinois when plaintiff accepted defendant’s order. Finally, we find that the contract was performed in Illinois, in that the order was received here and the goods requested were shipped from here. Defendant argues that plaintiff’s performance in Illinois was minimal, maintaining that the lobster purchased obviously did not originate in Illinois and that invoices were mailed from and payments received in New York. However, we do not believe these factors are determinative since plaintiff did all that it contracted to do from Illinois — it shipped the frozen lobster defendant ordered. Moreover, we find it reasonable to assume that the goods were stored here prior to shipment and that at least some paperwork was completed here before invoices could be mailed from plaintiff’s New York office. In sum, we find the instant action more analogous to Cook Associates and the decisions which follow it than to Artoe and its progeny.

During oral argument, defendant made the statement that if we find jurisdiction in this case, we will vastly expand the concept of in personam jurisdiction, subjecting, for example, many magazine or newspaper subscribers to the jurisdiction of the Illinois courts. A similar argument, however, was considered, and rejected, in Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 308 N.E.2d 78, where defendant urged us to consider the plight of customers of large mail-order houses should we find jurisdiction in that case. We noted there that each case must be decided on its own facts and circumstances, so that we might well find a consumer transaction to be substantially different from a business transaction voluntarily entered into by a business enterprise. It is therefore not appropriate to consider a hypothetical fact pattern in determining whether, under the circumstances before us, the trial court was correct in finding that defendant had sufficient minimum contacts with the State of Illinois to subject it to the in personam jurisdiction of our courts.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

WILSON, P.J., and MEJDA, J., concur.

      Now section 2 — 209(a)(1) of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209(a)(1).


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    MARTIN J. OBERMAN, Indiv. and as Alderman of the 43d Ward of Chicago, Plaintiff-Appellee, v. JANE M. BYRNE, Indiv. and as Mayor of the City of Chicago, et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—962
    Opinion filed January 13, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellants.
    Donald L. Metzger, of Chicago (Metzger & Associates, Ltd., of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Martin J. Oberman, alderman and taxpayer of the city of Chicago, brought an action seeking writ of mandamus and other relief, compelling defendants, including Jane M. Byrne, mayor of the city of Chicago, and other city officers, to permit inspection and copying of certain public records in their custody. Judgment was entered in favor of plaintiff, and a peremptory writ of mandamus issued commanding defendant, Mayor Jane M. Byrne, to provide plaintiff with copies of records of expenditures from the Chicago appropriation ordinance line item 100 — 9112.710 for the years 1979, 1980 and 1981, used for the mayor’s contingency fund, and from line item 100— 9112.801 for the years 1980 and 1981 used for a report by the Hay Associates (hereinafter Hay Reports). Defendants appeal the judgment essentially on grounds that the mayor’s contingency fund and the Hay Reports are not subject to public disclosure pursuant to the Illinois Constitution, the Local Records Act, the Municipal Code of Chicago or under Illinois common law.

The pertinent facts are as follows. On October 26, 1981, plaintiff filed a complaint for writ of mandamus and for injunctive relief. According to the complaint, in December 1980, the City Council of Chicago adopted an appropriation ordinance which included the amount of $65,000 for budget line item and account No. 100 — 9112.710 for “contingent and other expense for corporate purposes not otherwise provided for: to be expended under direction of the Mayor.” The complaint stated that in 1979 and 1980, defendant and her predecessor in office had spent amounts of $63,344 and $115,000, respectively, from this, the mayor’s contingency fund account. The complaint also stated that the December 1980 appropriation ordinance included an appropriation for 1981 in the amount of $400,000 for budget line item and account No. 100 — 9112.801 “for the analysis and implementation of improvements in departmental operations and management and personnel practices and controls: to be expended under the direction of the Mayor.” A similar appropriation was made for the year 1980 in the amount of $1,400,000. Pursuant to this appropriation, Hay and Associates, an independent consulting firm, was contracted by the mayor to conduct a study and analysis of Chicago personnel practices and thereafter compiled its reports and recommendations. These reports and recommendations are referred to as the “Hay Reports.” The complaint further alleged that plaintiff wrote to defendants requesting access to the above records and that his requests were refused. Plaintiff accordingly filed this action seeking access to the requested records.

On November 30, 1981, defendants filed a motion to dismiss the complaint, and on December 11, 1981, plaintiff filed a motion for summary judgment. On March 26, 1982, the motion to dismiss was denied, and summary judgment granted, the trial court entering two orders for mandamus commanding the mayor to provide plaintiff with all records sought in the complaint. Defendants have appealed that portion of the writ of mandamus compelling disclosure of the mayor’s contingency fund and the Hay Reports.

Opinion

The Mayor’s Contingency Fund

Defendants initially argue for the first time on appeal that the plaintiff’s complaint is insufficient to support the issuance of the writ because it fails to allege that the particular records sought are either in existence or in the possession of the mayor, and therefore it fails to demonstrate a clear legal duty to disclose such records. Although in an action for a writ of mandamus it is necessary for the plaintiff to demonstrate a clear right to this extraordinary relief (Walter v. Board of Education (1982), 93 Ill. 2d 101), an objection which is not preserved in the trial court cannot be raised for the first time on appeal. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417; Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 382 N.E.2d 453.) Under the Illinois Civil Practice Law, “[a]ll defects in pleadings, either in form or substance, not objected to in the trial court are waived.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(c).) Only where a complaint, with all the intendments in its favor, wholly and absolutely fails to state a cause of action at all, can an objection be made to it for the first time on appeal. (Pathman Construction Co.; Village of Hillside v. Chicago, Aurora & Elgin R.R. Corp. (1976), 40 Ill. App. 3d 861, 353 N.E.2d 227.) Defendants have not argued here that the complaint competently fails to state a cause of action, nor does their motion to dismiss raise an objection to the sufficiency of the cause of action on the grounds raised here. Accordingly, the issue of the sufficiency of the complaint is not properly before this court for review. We note, however, that with respect to the alleged defect, defendants have not denied the existence of the particular records sought by plaintiff’s complaint. In rendering its decision the trial court addressed the issue raised by defendants’ brief, stating, “I want to make it clear that I am not requiring the City to create any records or summaries, but only to disclose those documents that do in fact exist.” (Emphasis added.) Thus, we find no merit to defendants’ contentions premised on the notion that the writ at bar requires the creation of any records, summaries or the like that were not in existence at the time of the instant litigation.

The defendants next argue that the instant action is barred by the doctrine of collateral estoppel. In support of this position defendants refer to the memorandum presented in support of their motion to dismiss. There, defendants informed the trial court that, “In Martin J. Oberman v. Michael Bilandic [circuit court of Cook County] #78 L 3345, the instant plaintiff sought to have a breakdown and itemization from the Mayor’s Contingency Fund for two years. The Plaintiff in Oberman v. Bilandic relied on the same authority alleged in the instant case, namely, the Illinois Constitution, the Local Records Act and Section 25 — 29 of the Municipal Code of the City of Chicago. In Oberman v. Bilandic [the trial judge] granted defendant’s Motion to Dismiss and, in effect, held that Plaintiff was not entitled to documentation or a breakdown and itemization from the Mayor’s Contingency Fund.” In ruling on this point, the trial court in the instant case noted that defendants had failed to furnish sufficient information to provide a basis for ruling on the issue of collateral estoppel. The court stated, “I cannot note from the record in this case — what facts were litigated, how they were litigated, what the actual judgment was, and I don’t think it’s the court’s duty to search out facts not presented to us.”

We have thoroughly examined the record presented on the motion, along with the supporting memorandum and we find that the trial court properly rejected defendants’ claim of collateral estoppel. The doctrine generally precludes parties and their privies from relitigating facts in a subsequent action which were specifically litigated and determined in a prior action. (Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 44 Ill. 2d 73, 254 N.E.2d 467; Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 377 N.E.2d 1208.) Here, defendants have failed to support their claim of collateral estoppel in the trial court with a record sufficient to indicate the specific issues of fact determined in the previous litigation. Indeed, from the state of the record, it appears that defendants have not asked the trial court to apply this doctrine to specific facts litigated in the previous litigation at all, but rather have attempted to urge it to follow another court’s previous construction of the constitution, a statute, and city ordinances. The construction of a statute, ordinance or constitutional provision is a question of law. (See generally Coalition For Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 359 N.E.2d 138; Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450; Village of Northbrook; Johnson v. Town of the City of Evanston (1976), 39 Ill. App. 3d 419, 350 N.E.2d 70.) Collateral estoppel, however, pertains to the relitigation of facts, not to questions of law. (Village of Northbrook.) Under the circumstances presented here, we believe that the defendants have not only failed to adequately support their claim of collateral estoppel on the record, but have generally misapprehended the applicability of this doctrine to the issues presented in the instant litigation. (See generally Village of Northbrook.) Thus, we turn to the merits of defendants’ appeal.

The first issue before us is whether the mayor’s contingency fund account for the years in question is subject to disclosure under provisions of the Illinois Constitution, the Local Records Act (Ill. Rev. Stat. 1981, ch. 16, par. 43.101 et seq.), chapter 23, section 7 of the Municipal Code of Chicago, or under Illinois common law.

Article VIII, section 1 of the 1970 Illinois Constitution, provides:

“(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.
(c) Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.”

Our supreme court has recognized that this provision of the Illinois Constitution mandates public access to the financial records of units of local governments. (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835.) This constitutional mandate was implemented by the General Assembly by an amendment to the Local Records Act (Ill. Rev. Stat. 1981, ch. 116, par. 43.103a.) Section 3a of the Act provides:

“Reports and records of the obligation, receipt and use of public fimds of the units of local government and school districts *** are public records available for inspection by the public. *** These records shall be available for public inspection during regular office hours ***. The person in charge of such records may require a notice in writing to be submitted 24 hours prior to inspection and may require that such notice specify which records are to be inspected. Nothing in this section shall require units of local government and school districts to invade or assist in the invasion of any person’s right to privacy.”

Thus, section 3a of the Local Records Act provides expressly for public access to local financial records subject to specified limitations as to time, place and circumstances. Ill. Rev. Stat. 1981, ch. 116, par. 43.103a; Lopez.

It is evident that the records of expenditures from the contingency fund account before us plainly concern the obligation, receipt, and use of public funds, and therefore constitute local financial records under the Illinois Constitution and the Local Records Act. Defendants, however, insist that an “itemized list of specific expenditures” is not mandated by the constitutional and statutory .scheme, and that the comptroller’s vouchers, indicating only that monies were in fact issued for the contingency fund account, are the only records on this subject which the lawmakers intended to be disclosed. Defendants support this assertion with quotations from the debates of the Illinois Constitutional Convention of 1970 which purportedly show that (1) the legislative intent was to disclose only records which show the broad and general direction to which expenditures went, and (2) it was the legislative intent to exclude generally records of expenditures from contingency funds. These arguments are without merit.

With respect to defendants’ contention that the Local Records Act and Constitution require only that comptroller’s vouchers showing only the total amounts issued to the contingency fund need be disclosed, and that the Act does not require the disclosure of more detailed information, we refer to the recent opinion in Mid-America Television Co. v. Peoria Housing Authority (1981), 93 Ill. App. 3d 314, 417 N.E.2d 210. In that case the reviewing court rejected similar arguments by a defendant that only the total expenditures of an agency need be disclosed as opposed to the more detailed information sought by the plaintiff. There, the court noted that the report of the Committee on Revenue and Finance to the Constitutional Convention expressly states that one of the objectives of the Finance Article is “ ‘to assure that the Illinois citizen has the broadest possible access to information on the fiscal conditions and operations of state and local government, so that he may hold the elected officials accountable for their performance in office.’ (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2007 ***.)” (93 Ill. App. 3d 314, 316, 417 N.E.2d 210, 212.) The court also pointed out that to insure officials’ accountability, the Committee stated that it is critical “ ‘that the public have access to those papers which are necessary to determine where revenue originates, where it is spent and how it is employed while in the custody of the government ***.’ (7 Proceedings 2012.)” (Emphasis added.) (93 Ill. App. 3d 314, 317, 417 N.E.2d 210, 212.) From reviewing the above committee records, the court concluded that a simple summary of total amounts spent without any further clarification as to where and how the money was spent would be virtually useless in determining accountability of local officials. We agree. In construing a statute, courts should examine the statutory language and its context as well as its statutory purpose. (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835; Warden v. Byrne (1981), 102 Ill. App. 3d 501, 430 N.E.2d 126.) From the foregoing, we are convinced the objective of the constitutional provision is to insure accountability of public officials for public funds in their custody. To effect this purpose, it is necessary that public disclosure be made of specific transactions and not mere disclosure of the source of the revenue and “broad direction” to which expenditures went. Therefore, we believe that any attempt here to limit public disclosure to only the city comptroller’s vouchers would clearly frustrate the constitutional and statutory purpose.

Defendants argue that the appellate court opinion in Pope v. Parkinson (1977), 48 Ill. App. 3d 797, 363 N.E.2d 438, correctly evidences the intent of the Constitutional Convention to limit disclosure to those reports and records bearing upon the broad and general direction to which public expenditures go. We are not persuaded by that decision, as we find its holding inapposite to the situation at bar. In that case the defendant, an official of the University of Illinois, had publicly released information concerning the contracts and profits and losses relating to performances at the University’s “Assembly Hall.” The plaintiff sought a writ of mandamus compelling disclosure of additional records giving a breakdown reflecting the financial data for each individual performance. The court held that the “University is not a unit of local government or a school district to which section 3a of the Local Records Act [citation] might apply.” (48 Ill. App. 3d 797, 802, 363 N.E.2d 438, 442.) The court also found that the University had complied with the constitutional requirements by publicly disclosing a summary of Assembly Hall revenue and expenditures. It is obvious that the Pope decision cannot be read to limit disclosure under the Local Records Act since the Act itself was deemed inapplicable in that action. Moreover, in our view, that opinion fails to fully consider the stated objectives of the constitutional provision as evidenced in the report of the Committee on Revenue and Finance to the Constitutional Convention, and as set forth in the Mid-America Television Co. decision noted above. In Warden v. Byrne (1981), 102 Ill. App. 3d 501, 430 N.E.2d 126, this court adhered to the rule that good public policy requires liberality in the right to access to and inspection of public records. Accordingly, we think that Mid-America Television Co. correctly resolved the constitutional issue raised herein, and we hereby adopt and concur in that decision. We therefore find no statutory or constitutional bar to disclosure of the information ordered to be furnished under the writ of mandamus at bar.

Defendants’ second argument is that the constitutional and statutory provisions do not require public disclosure of individual transactions from a public official’s contingency fund. Defendants rely here on quotations from the constitutional debate discussions addressing disclosure of contingency funds of investigative agencies. There, a member of the Revenue and Financial Committee which drafted the provision stated, “[t]he Committee was very much aware that certain investigative — perhaps offices such as the state’s attorney might involve the use of contingency funds for various purposes in regard to which disclosure might be self-defeating." (2 Record of Proceedings, Sixth Constitutional Convention 873 (1970).) We can hardly conclude from the debate excerpts presented that records of expenditures from the mayor’s contingency fund are exempt from disclosure. Taken in context of the debate, the above passage narrowly contemplates con-. tingent funds which might be necessary for law enforcement or investigative offices, such as that of the State’s Attorney, and where public disclosure would be likely to compromise confidential information. Defendants do not contend, and there are no facts of record which indicate that the expenditures from the mayor’s contingency fund have been used for any law enforcement or investigational purposes. Accordingly, we find no merit in defendants’ contention that the instant contingency fund account is exempt from disclosure under the constitution and statute.

Next, we are asked to determine whether plaintiff, as a member of the city council, is entitled to examine records of the mayor’s contingency fund under chapter 25, section 29 of the Municipal Code of Chicago. This ordinance provides that: “All departments, bureaus, boards, or persons connected with the city government are hereby required to make such financial reports as may be ordered by the city council, and to permit examination of all their official records by any member of the city council, or any accredited representative of the press, except such records which by law are required to be kept confidential or which by ordinance are limited to inspection by certain designated persons.”

Defendants argue that the ordinance is limited to disclosure of “official records,” that the vouchers showing that funds were issued to the contingency fund account are the “official records,” that plaintiff has already viewed these vouchers, and that the ordinance does not require defendants to “create” financial records except at the request of the full city council. We find these arguments unavailing. As previously mentioned, we consider the instant writ of mandamus to require disclosure only of existing records. Thus, under the facts in this case, we believe it is unnecessary to consider defendants’ claims that the ordinance cannot require the “creation” of records at plaintiff’s request. Moreover, defendants have not argued that the records sought do not, in fact, exist, but rather they have insisted that under the ordinance the vouchers are the only official records which exist. We believe that under the circumstances in this case, this distinction is not supported in logic or law. Rules of construction provide that words used in an ordinance are to be given their plain meaning and that construing courts should examine the language and its context, as well as the purpose of the ordinance. (Warden v. Byrne (1981), 102 Ill. App. 3d 501, 430 N.E.2d 126.) The plain language of this ordinance requires defendants to permit examination of all official records by any member of the city council. It is axiomatic that records of expenditures made from the mayor’s contingency fund for solely corporate purposes are “official records” as that term is contemplated by the ordinance. Further, in examining the purpose of the ordinance, it is evident that access to such financial records is necessary so that members of the city council can make informed decisions regarding matters of future appropriation of public funds. Finally, the ordinance expressly provides for two types of exceptions: (1) where confidentiality is required by law, or (2) where access is limited by ordinance. We have found no such law or ordinance restricting disclosure of the instant records, and none has been cited by the defendants. Accordingly, we find the issuance of the writ of mandamus supported by this ordinance.

Defendants next argue that itemized records of the contingency fund are not public records subject to disclosure under principles of common law. Although we have held that under the Local Records Act and Municipal Code of Chicago the records are available to plaintiff, defendants’ argument raises the specter of factors which countervail the public’s right to inspect the reports and which may require nondisclosure. Defendants point to the common law rule that the public’s right of inspection is not without qualification. (See, e.g., Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835; People ex rel. Better Broadcasting Council, Inc. v. Keane (1973), 17 Ill. App. 3d 1090, 309 N.E.2d 362.) In Lopez, our supreme court utilized a balancing test in considering whether specific documents should be made accessible to the public under the common law right to examine public records. The court stated, “The interest of citizens in knowing what the government is doing and their proprietary interest in public property should be weighed against the interest of the public in having the business of government carried on efficiently and without undue interference.” 76 Ill. 2d 107, 119, 390 N.E.2d 835, 839.

Defendants’ position is that release of contingency fund records would impinge upon the mayor’s “absolute, uncontrolled and unfettered use of the funds,” which “were appropriated for the May- or’s own use.” They also argue that to disclose expenditures from the fund would threaten privacy interests of third persons dealing with the mayor who have received payments in the belief that their identities would remain private. Initially, we find these arguments untenable since the appropriation ordinance creating the mayor’s contingency fund expressly limits use of such funds to corporate purposes. Thus, the fund is obviously not intended for the mayor’s own use. Secondly, we are aware of the defendants’ failure in the trial court to make any persuasive showing, beyond similarly vague and general statements, of the need for confidentiality or of individual privacy interests which outweighed the public’s right to know. Indeed, the trial court provided defendant, Mayor Jane M. Byrne, a period of 14 days to make such a showing, yet defendant chose not to avail herself of the opportunity. From our review of the record, we cannot say that disclosure of the records at issue would tend to significantly impair the efficiency of the activities of the office of the mayor, or that disclosure would in fact impinge upon privacy rights of any individuals. Moreover, defendants have failed to clearly identify any public interest which countervails the general policy favoring open government to support withholding the records at bar. In the absence of such countervailing factors, we feel that the records of contingency fund expenditures must be open to public access.

The Hay Reports

Plaintiff has sought disclosure of reports of a wide-ranging, approximately $700,000 study of city personnel practices and procedures compiled by Hay and Associates, an independent consulting firm, which was furnished to the mayor of Chicago in compliance with the above-mentioned appropriation ordinance. A portion of these so-called “Hay Reports,” an executive summary volume, has been released by the mayor, and thus the instant controversy stems only from the may- or’s refusal to release for review the remaining volumes of these reports. On appeal, defendants contend that the remainder of the Hay Reports are not subject to public disclosure under the Illinois Constitution, the Local Records Act, the Municipal Code of Chicago, or under Illinois common law. We find it unnecessary to look to the Constitution,. the statute or common law to determine whether plaintiff is entitled to the writ compelling disclosure because we find that under the Municipal Code of Chicago, plaintiff is entitled to inspect copies of the records in question as a matter of right. Chapter 23, section 7 of the Municipal Code of Chicago provides in pertinent part that:

“The Municipal Librarian shall perform the following duties:
* * *
Collect from the Mayor and the head of each Department, Commission or Agency of the City three copies of each report, document, study or publication prepared by independent consultants, or other independent contractors. It shall be the duty of the Mayor and the head of each Department, Commission or Agency of the City to transmit three copies of each report, document, study or publication, within five days after receipt thereof, to the Municipal Reference Library. It shall be the duty of the Municipal Reference Librarian to transmit a copy of each report, document, study or publication prepared by an independent consultant or other independent contractors to the Chairman of the Committee on Finance. However, any report, document, study or publication of the following types shall not be transmitted to or collected by the Municipal Reference Library:
1) Reports or memoranda of attorneys or investigators in preparation for or contemplation of litigation;
2) Reports relating to land acquisition by the City including but not limited to appraisals, title opinions, engineering reports and planning studies concerning the specific location of public improvements;
3) Reports relating to current or contemplated investigatory or operating procedures of the Police Department or Fire Department;
4) Reports or materials relating to a specific test or tests for use of the Department of Personnel in recruitment or promotional examinations;
5) Reports to the Mayor relating to specific individuals who are or may be under consideration for recruitment or promotion for employment by the City;
6) Reports which include information required by law to be held in confidence.”

The plain language of the ordinance requires the mayor to transmit copies of each report, document, study or publication by independent consultants or contractors to the Municipal Reference Library within five, days of the receipt thereof. (Warden v. Byrne (1981), 102 Ill. App. 3d 501, 430 N.E.2d 126.) It is evident from the words used that it is the materials received by the mayor which are to be transmitted, and therefore merely providing a summary of such materials does not satisfy the requirements of the ordinance.

Defendants contend that the Hay Reports fall within three of the above six exclusions enumerated in the ordinance. First, defendants argue that the reports are exempt from disclosure because they “relate to tests used for hiring and promotion by the Department of Personnel,” and because they describe procedures for scoring, planning and validation of personnel examinations. The exemption stated in subparagraph (4) of the ordinance, however, is limited to reports and materials relating to specific tests. We believe that this exemption is concerned with preventing disclosure of materials relating to specific tests in order to maintain integrity and confidentiality within the personnel examination process. Defendants have conceded in the trial court that the Hay Reports do not address specific tests. Accordingly, we find that the test materials exclusion of the ordinance is not applicable under the circumstances here.

Defendants also argue that the exemption in subparagraph (5), which excepts “reports to the Mayor relating to specific individuals who are or may be under consideration for recruitment or promotion for employment by the City,” prevents disclosure. Defendants state that the reports contain a general analysis of current recruitment activities of the city of Chicago which includes a detailed listing of promotion and salary plans for all of the city’s occupational classes. Defendants further contend that the reports contain references to promotions via salary and benefit increases for certain occupational titles, and that release of the reports would, by cross-reference, identify specific individuals who have an opportunity for promotion. We are not convinced from the record and arguments here that defendants have established that the reports relate to any specific individuals, much less those who are or may be under consideration for recruitment or promotion by the city. Even assuming that one might, as defendants fear, by cross-reference, identify a particular individual by job title as one having an opportunity for promotion, such does not necessarily identify that individual as one who is or may be under consideration for promotion.

Further, we again note that the order of mandamus appealed from provided the mayor a period of 14 days to make an in camera showing of the need to protect any individual’s privacy right for confidentiality, and she declined the opportunity to do so. Under the circumstances at bar, we find this exclusion of the ordinance unavailing.

Defendants next assert that the reports are not subject to disclosure under subparagraph (6) of the ordinance which excludes “reports which include information required by law to be held in confidence.” Defendants, however, have cited no applicable law which dictates non-' disclosure. Rather, they place their reliance upon Rule XIX of the City of Chicago Personnel Rules promulgated by the commissioner of personnel pursuant to his rule-making authority under chapter 25.1, section 2 of the Municipal Code of Chicago. Section 2 of Rule XIX provides:

“All personnel records of city employees and records and material relating to the administration of the personnel management system shall be considered confidential and the property of the City. *** Employee information and related personnel records and reports shall be made available for official purposes at the discretion of and in accordance with procedures prescribed by the Director.”

The rule makes confidential all personnel records and records and material relating to the administration of the personnel management system. Logically, this rule would restrict disclosure of records containing matters concerning the performance, discipline, promotion and related history of individual city employees, and of the administrative experience recorded in connection therewith. From the representations in the briefs and from the information revealing the contents of the Hay Reports which can be gleaned from the record before us, it appears that these reports fundamentally address broad policy and procedural questions relating to city personnel practices, and thus they differ significantly in kind from the types of personnel records protected under this rule. Accordingly, we find this rule inapplicable to the records in question. Moreover, it is unlikely that the city council intended that the rule-making authority of the commissioner of personnel should supplant the mayor’s clear duty to transmit copies of reports by independent consultants under the Municipal Code of Chicago, which would be the implication if we accepted defendants’ argument here. We therefore reject defendants’ position that the Hay Reports are subject to any of the three exclusions advanced on appeal. Accordingly, we conclude that the documents in question are subject to disclosure under chapter 23, section 7 of the Municipal Code of Chicago. Warden v. Byrne (1981), 102 Ill. App. 3d 501, 430 N.E.2d 126.

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

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    DEARBORN CONSTRUCTION COMPANY, Plaintiff-Appellant, v. DOUGLAS GOODMAN et al., Defendants-Appellees.
    First District (1st Division)
    No. 81—2882
    Opinion filed December 30, 1982.
    Rehearing denied February 7, 1983.
    Cyril J. Watson, of Mitchell, Russell and Kelly, and William J. Harte, both of Chicago, for appellant.
    Edward S. Lipsky and Dennis M. Sbertoli, both of Zipperman, Levin & Associates, of Chicago, for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Dearborn Construction Co., an Illinois corporation, brought this action against defendants, Douglas Goodman and Bert C. Young & Sons Corp., an Illinois corporation, alleging the existence of an oral contract to submit a joint bid to the Public Building Commission of Chicago, a municipal corporation, and seeking the imposition of a constructive trust and an accounting for a share of the profits realized by defendant, Bert C. Young & Sons Corp., as successful bidder. Following the close of plaintiff’s case in a bench trial, the trial court granted defendants’ motion for a judgment. On appeal, plaintiff raises the following issues: (1) whether the alleged oral agreement between plaintiff and defendant, Bert C. Young & Sons Corp., to submit a joint bid to the Public Building Commission violates sections 19 and 20 of the Public Building Commission Act (Ill. Rev. Stat. 1977, ch. 85, pars. 1049, 1050), and, therefore, is unenforceable as an illegal contract; (2) whether defendant Douglas Goodman, as director and president of plaintiff, breached his fiduciary duty to plaintiff; and (3) whether defendant, Bert C. Young & Sons Corp., wrongfully induced defendant Goodman to breach his fiduciary duty to plaintiff.

The record discloses that defendant, Bert C. Young & Sons Corp. (Young), was the successful bidder in public bidding for the Richard J. Daley Center Alterations Contract No. 272. A bid in Young’s name was submitted to the Public Building Commission of Chicago on April 13, 1978. Young was awarded the contract by the commission. According to plaintiff’s complaint, the officers of plaintiff, including defendant Douglas Goodman as president of plaintiff, and the officers of Young agreed in March 1978 to submit a joint bid on the alterations contract to the commission. The bid was to be submitted in Young’s name alone because plaintiff had previously encountered difficulties in obtaining performance bonds for large projects (i.e., in excess of $500,000). Plaintiff alleged that the oral agreement required plaintiff to be responsible for, and profit from, the general trades portion of the alterations contract (excavating, masonry, carpentry, etc.), while Young was to be responsible for, and profit from, the mechanical trades portion of the alterations contract (plumbing, heating, air conditioning, etc.). On April 19, 1978, Goodman resigned as director and president of plaintiff. In early May 1978, Goodman became an employee of Young. Plaintiff claimed that Young breached its oral agreement by refusing to allow plaintiff to participate in the alterations contract work. Plaintiff also alleged that after Goodman resigned as its president, Goodman provided Young with information obtained as plaintiff’s president. Plaintiff alleged that Young wrongfully induced Goodman to breach his fiduciary duty to plaintiff.

At trial, Peter Mrakovich, who was a director and secretary of plaintiff in March 1978, testified that he and Goodman for plaintiff and James Young for Young made an agreement to submit a joint bid in Young’s name for the Daley Center contract. He stated that Dear-born and Young had previously submitted joint bids on the other projects, although no contracts were awarded on any prior joint bids. According to the witness, Young was to prepare the bid and complete the work for the mechanical trades portion of the contract and Dear-born was to prepare the bid and complete the work for the general trades portion of the contract. On April 13, 1978, Goodman telephoned Young to obtain the final figures for the work and then Goodman submitted the bid to the commission, which bid was made in Young’s name. After Goodman’s resignation from Dearborn, the witness had two meetings with Young and he provided James Young with Dearborn’s file for the alterations contract because Young needed the file to show to a bonding company. Mrakovich stated that on May 8, he made a demand to Young that Young honor its oral agreement and permit Dearborn to participate in the alterations contract. He also stated that the general trades portion of the contract was 54% of the total work involved in the project. Mrakovich indicated that Dearborn submitted a deposit to the commission and took out a set of bid documents for the Daley Center project.

James Wilcher, an officer and director of plaintiff, testified that in March and April of 1978, he and Goodman discussed a joint venture agreement which involved Young and concerned the Daley Center project. Wilcher stated that Goodman left a message on Dearborn’s telephone answering machine, which message was “we got the job” which was in reference to the alterations contract. Wilcher also stated that Dearborn’s role in the alterations contract was “like a subcontractor, not a subcontractor. [Young] would do the mechanical portion, and [Dearborn] would do the general trades portion.”

Douglas Goodman stated that prior to his resignation from Dear-born in April 1978, he was a director and president of Dearborn. Dearborn had taken out bid documents for the Daley Center project and had solicited bids from various subcontractors in connection with the project. On April 13, the day on which the bids for the project were submitted, Goodman received a signed incomplete bid form from Young. He then went to the commission with the bid form and telephoned Young who provided him with the final bid figures with which Goodman completed the bid form. Goodman submitted the bid and subsequently learned that Young was the successful bidder. On April 19, Goodman resigned from Dearborn. On May 3, Goodman received his first paycheck from Young.

Following the close of plaintiff’s case, the court permitted Dear-born to amend its prayer for damages to reflect 53.4% of the profit from the alterations contract. Defendants presented a joint motion for a judgment at the close of plaintiff’s case. The court concluded that the “alleged oral contract” between Dearborn and Young was unenforceable because it violated section 20 of the Public Building Commission Act (Ill. Rev. Stat. 1977, ch. 85, par. 1050). The court stated that the purpose of section 20 was to promote full disclosure of the bidders to the Public Building Commission and that section 20 precluded a joint bid where one of the bidders is not disclosed. The court also relied upon an “Affidavit of Noncollusion” which was executed by James Young and submitted with the bid. The court ruled that no evidence was adduced that Young induced Goodman to breach a fiduciary duty owed to plaintiff or that Goodman breached any fiduciary duty owed to plaintiff. The court also found that the evidence and the exhibits “wholly fail” to establish the causes of action alleged in the complaint. Accordingly, the trial court granted defendants’ motion.

Plaintiff Dearborn first contends that section 20 of the Public Building Commission Act does not preclude a joint bid. Plaintiff maintains that Dearborn was not a bidder for the alterations contract and, therefore, there could not be any collusion among bidders. Plaintiff also argues that the evidence established the existence of an oral contract to jointly submit a bid to the Public Building Commission. As to the remaining two issues raised by plaintiff on appeal, plaintiff contends that the evidence was sufficient to show that Young induced Goodman to breach a fiduciary duty owed to plaintiff and that Goodman breached a fiduciary duty owed to plaintiff.

Defendants Young and Goodman argue that the trial court never concluded that Young and Dearborn entered into an oral agreement concerning the Daley Center project. Defendants refer to the court’s order in which it stated that “the alleged oral contract between Plaintiff and Defendants is unenforceable as violative of the Local Government Act. Chapter 85 §1050 of the Illinois Revised Statutes.” Defendant also refers to a finding made by the court at the time that it ruled on defendants’ motion for a judgment at the close of plaintiff’s case. The court stated:

“[T]he Court in hearing the testimony of Mr. Wilcher made note of the fact that although he was not present at the alleged negotiations, he thought they were going to get a contract which leads this court to believe that no final conclusion, had they complied with the law, that an oral agreement had been entered into at all. We talked about the job, that is, when Mr. Young allegedly came after the bid, whether he was going to let us do the job. So, apparently Dearborn didn’t know whether they were getting the job or not.”

Defendants contend that section 20 of the Public Building Commission Act provides that bidding on public projects is to be through “open competitive bidding” and that the agreement which Dearborn alleges to have existed is a collusive bid in violation of section 20.

In Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43, the supreme court held that in ruling on a motion for a judgment at the close of plaintiff’s case in a nonjury trial, the trial court should employ a two-step analysis. Initially, the trial court must determine whether plaintiff has established a prima facie case. If the court concludes that the plaintiff has made out a prima facie case, the court, in its role as trier of fact, then weighs the evidence and evaluates the credibility of the witnesses. This weighing process may negate some of plaintiff’s evidence. If after weighing the evidence and assessing the credibility of witnesses, the court determines the plaintiff’s prima facie case remains, the court should deny the motion. (Kokinis v. Kotrich; Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 427 N.E.2d 974.) On appeal, the decision of the trial court will not be reversed unless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich; Happel v. Mecklenburger.

In the instant case, the record discloses that the trial court was not persuaded by the evidence that an oral contract to submit a joint bid existed. In its order granting defendants’ motion for a judgment, the court stated that “the evidence and exhibits offered by the Plaintiff wholly fail to establish the cause of action alleged in the complaint, Counts I through V inclusive.” It appears that the court concluded that plaintiff failed to offer sufficient evidence to establish the existence of an oral contract to submit a joint bid and, therefore, failed to establish its prima facie case. Our review of the record supports the decision of the trial court in that plaintiff failed to present sufficient evidence to establish the existence of an oral contract to submit a joint bid. Because we have concluded that the record fails to establish the alleged oral contract, we need not consider whether such an oral contract is void, as a matter of law, because it violates either section 19 or section 20 of the Public Building Commission Act.

Plaintiff raises two other issues on appeal, both of which concern the sufficiency of the evidence offered in this cause. The trial court concluded, and we agree, that the evidence failed to establish that defendant Young induced Goodman to breach a fiduciary duty owed to plaintiff and that defendant Goodman breached any fiduciary duty owed to plaintiff. Under the standard for ruling on a motion for a judgment at the close of plaintiff’s case, as set forth in Kokinis v. Kotrich, we cannot say that the trial court erred in granting defendants’ motion for a judgment and entering judgment for defendants.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    FERNDALE HEIGHTS UTILITY COMPANY, Appellant and Cross-Appellee, v. ILLINOIS COMMERCE COMMISSION, Appellee and Cross-Appellant.—(Metropolitan Housing Development Corporation, Intervening Appellee.
    First District (2nd Division)
    No. 81—2612
    Opinion filed December 28, 1982.
    Rehearing denied February 17, 1983.
    Chapman & Cutler, of Chicago (John Vander Vries, Daniel Kucera, and Christine Hehmeyer Rosso, of counsel), for appellant.
    Edward G. Finnegan, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Ferndale Heights Utility Company (Ferndale) appeals from an order of the Illinois Commerce Commission (Commission) directing it to follow its tariffs in reimbursing Metropolitan Housing Development Corporation (MDHC) for the construction of water facilities used by Ferndale to provide water to a tract of land developed by MDHC. Ferndale contends that the order was issued under section 72 of the Public Utilities Act (the Act) (Ill. Rev. Stat. 1979, ch. lll2/s, par. 76) and that the complaint was untimely under that section. The Commission cross-appeals, contending that the circuit court lacked jurisdiction to hear the appeal from the Commission’s order.

In 1969, Ferndale entered into a written agreement with River-woods Development Corporation under which Ferndale would provide water to a tract of land to be developed by Riverwoods. The agreement provided that Ferndale would construct the bulk of the facilities needed to bring service to the point where the water would be metered, and that the developer would bear the entire cost of constructing the necessary facilities on the site without reimbursement. Fern-dale’s tariffs, which were then on file with the Illinois Commerce Commission, provided that a developer which constructed facilities to be used by the utility would convey the facilities to the utility after construction and would be reimbursed for construction costs in the amount of 21k times the first year’s revenue received by Ferndale from each customer attaching to the system, the reimbursement not to exceed the developer’s cost of construction. Ferndale was not certified to serve the area of the proposed development, and therefore it sought a certificate of convenience and necessity from the Illinois Commerce Commission which would allow it to expand its area of service. The certificate was issued on August 6, 1969. In the order granting the certificate, the Commission declared that it was neither approving nor disapproving the agreement between the parties, but that the provisions of the agreement that were contrary to the tariffs of the utility were “null and void.” No new agreement was made by the parties, and MDHC, as Riverwood’s successor in interest, subsequently took an assignment of the original agreement.

By 1973, all of the facilities that were needed to provide water to the development were completed. The MDHC’s cost of construction was $52,175. The facilities actually installed were substantially different from the facilities called for in the agreement.

In 1976, MDHC filed a complaint with the Commission alleging that the agreement violated several sections of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. lll2/s, par. 1 et seq.), specifically because the property owners covered by the agreement were reimbursed differently than those customers of the utility covered by the tariffs, and that therefore the agreement worked a discrimination against customers covered by it. The complaint stated that it was not brought pursuant to section 72 of the Act (Ill. Rev. Stat. 1979, ch. lll2/3, par. 76). That section authorizes the Commission to order a utility to refund any excessive or discriminatory charges for its services or commodity to its customers, and any complaint under that section must be brought within one year of the time that the commodity or services were provided.

On March 1, 1978, the Commission entered an order stating that the agreement between the parties did not “violate the law and the rules and regulations of the Commission which were in force when the agreement was entered into” and that the complaint was governed by section 72 of the Act and was untimely under that section.

MDHC was granted a rehearing, and on September 6, 1978, the Commission issued an order on rehearing which stated that the complaint was not governed by section 72, that Ferndale’s tariffs should govern the issue of the reimbursement to be given MDHC, and specified how the reimbursement should be calculated. The order stated that the maximum reimbursement under the tariffs was $52,175, which was the total amount of the construction costs to MDHC.

Ferndale filed a notice of appeal from the order on rehearing in the circuit court of Sangamon County. That court determined that venue should lie in Cook County, and the case was transferred. The circuit court of Cook County held that the transfer was properly treated as a matter of venue and affirmed the order of the Commission. Ferndale appeals from that order, and the Commission cross-appeals, contending that the circuit court of Sangamon County was without jurisdiction to transfer the case, and that therefore the transfer to Cook County, where jurisdiction was proper, was without effect because an original filing of the appeal in Cook County would have been untimely by the time the transfer was granted.

Section 68 of the Act (Ill. Rev. Stat. 1979, ch. lll2/3, par. 72) provides in pertinent part:

“[Wjithin 30 days after the service of any final order or decision of the Commission upon and after a rehearing of any rule, regulation, order or decision of the Commission, any person or corporation affected by such rule, regulation, order or decision, may appeal to the circuit court of the county in which the subject-matter of the hearing is situated ***. *** No circuit court shall permit a party affected by any rule, regulation, order or decision of the Commission to intervene or become a party plaintiff or appellant in such court who has not taken an appeal from such rule, regulation, order or decision in the manner as herein provided.”

Ferndale is a utility certified to serve only areas in Cook County, and all the equipment which was installed by the parties is located in Cook County. The subject matter of the hearings before the Commission is clearly in Cook County, and therefore the filing of the appeal in Sangamon County was improper. The circuit court of Sangamon County denied the Commission’s motion to dismiss the appeal, but held that the provision of section 68 relating to where the suit could be filed was a matter of venue, and transferred the case to Cook County more than 30 days after the service of the Commission’s order.

The circuit court of Cook County held that the filing of this appeal in the wrong county was properly treated as a matter of venue rather than of jurisdiction. We find that the requirement that the appeal be filed in the circuit court of the county where the subject matter of the Commission’s hearings is located is jurisdictional. Our supreme court has stated that “^jurisdiction and venue are distinct legal concepts. Jurisdiction relates to the power of a court to decide the merits of a case, while venue determines where the case is to be heard.” (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88.) A circuit court sitting in review of a decision of the Commission is in the exercise of a special jurisdiction, and such appeals must be prosecuted in accordance with the requirements of the Public Utilities Act to be legally effective. (Village of Waynesville v. Pennsylvania R.R. Co. (1933), 354 Ill. 318, 321, 188 N.E. 482; Summers v. Illinois Commerce Com. (1978), 58 Ill. App. 3d 933, 935, 374 N.E.2d 1111.) Section 68 of the Act prohibits the circuit court from permitting a litigant to proceed with an appeal before it if the litigant has failed to comply with the procedures set forth in the statute. Therefore, the circuit court of Sangamon County had no power to decide the merits of the case because the appeal was not made to the circuit court of the county in which the subject matter of the hearings was located.

A court in the exercise of general jurisdiction is empowered to transfer a case for lack of subject matter jurisdiction if transfer will cure the defect and avoid the necessity of dismissing the suit. (See Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(a), superseded without change of substance by Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(1).) Our supreme court has held that the same power attaches to a court sitting in the exercise of a special jurisdiction. In the case of Central Illinois Public Service Co. v. Industrial Com. (1920), 293 Ill. 62, 127 N.E. 80, the appellant filed an appeal from a workmen’s compensation award in the circuit court of Coles County. The appellee filed a motion to quash the writ of certiorari for lack of subject matter jurisdiction. After that motion was allowed, the appellant moved to reinstate the writ and for transfer of the case to Champaign County, where subject matter jurisdiction was proper. Our supreme court held that although subject matter jurisdiction was lacking in the circuit court of Coles County, that court had jurisdiction of the case for purposes of transfer. The court based its holding on section 1 of the venue act of 1891 (Hurd’s Rev. Stat. 1917, ch. 146, par. 36), which provided that “wherever any suit or proceeding shall hereafter be commenced, in any court of record of this State, and it shall appear to the court where the same is pending that the same has been commenced in the wrong court or county, *** the court shall change the venue of such suit or proceeding to the proper court or county ***.”

The court noted that the legislature may grant special jurisdiction over a prescribed class of cases to only specific circuit courts (Central Illinois Public Service Co. v. Industrial Com. (1920), 293 Ill. 62, 65), but by the use of the words “commenced in the wrong court or county” in the Venue Act, “the legislature intended to reach those cases begun in courts not having jurisdiction of the subject matter as well as those where jurisdiction of the parties, alone, is lacking. *** By this act it is evident that the legislature intended to and did confer on all courts of record in this State, without regard to any other jurisdiction either conferred upon or denied it by common law or statute, jurisdiction to ‘change the venue of such suit or proceeding to the proper court or county.’ ” 293 Ill. 62, 69.

Section 10(2) of the Civil Practice Act replaced section 1 of the Venue Act, which was repealed in 1955. (Ill. Laws 1955, at 2290.) The intermingling of concepts of venue and jurisdiction which was noted by our supreme court in Central Illinois Public Service Co. was codified in the new provision, which provided that:

“Whenever it appears that an action has been commenced in a court which does not have jurisdiction to determine the action, the court shall, at any time, upon its own motion or upon the motion of any party, order the cause transferred to a court of competent jurisdiction in a -proper venue.” Ill. Rev. Stat. 1975, ch. 110, par. 10(2).

This provision was eliminated from the Civil Practice Act in 1976 by Public Act 79 — 1366. (Ill. Laws 1976, at 1115.) The supplement to the historical and practice notes for this section (Ill. Ann. Stat., ch. 110, par. 10 (Smith-Hurd 1982 Supp.)) suggests that the deletion was not intended to change the substantive law but was merely a recognition of the fact that the courts of our State are now uniformly courts of general jurisdiction. This view is consistent with the continuing existence of section 48(l)(a) of the Civil Practice Act, which authorizes transfer rather than dismissal of a case if transfer will cure a lack of subject matter jurisdiction.

The Civil Practice Act applies to statutory actions such as appeals from the Illinois Commerce Commission “as to matters of procedure not *** regulated by separate statutes.” (Ill. Rev. Stat. 1979, ch. 110, par. 1.) Nothing in section 68 of the Public Utilities Act expressly prohibits the transfer of an appeal which was filed in the wrong county, and therefore we hold that the appeal was properly transferred to the circuit court of Cook County.

The Commission contends that if the transfer of the case was proper, the appeal still must be regarded as an action commencing at the time that the case was transferred, rather than at the time the case was begun in Sangamon County. If the appeal is regarded as beginning at the time the case was transferred to Cook County, the appeal is untimely because the case was transferred more than 30 days after service of the Commission’s order. The Commission contends that the case of Herb v. Pitcairn (1943), 384 Ill. 237, 51 N.E.2d 277, rev’d (1945), 325 U.S. 77, 89 L. Ed. 1483, 65 S. Ct. 954, rehearing denied (1945), 325 U.S. 893, 89 L. Ed. 2005, 65 S. Ct. 1188, supplemented (1945), 392 Ill. 151, 64 N.E.2d 318, establishes that as a matter of Illinois law the transfer of a case from a court where subject matter jurisdiction is lacking does not have the effect of “relating back” the time of the filing of the complaint to the time that it was filed in the improper court for purposes of avoiding the applicable limitations period. However, in the case of Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, 47, 203 N.E.2d 415, our supreme court expressly overruled Herb. After Roth, there can be no doubt that the filing of a suit in a court without subject matter jurisdiction commences the action for limitations purposes as a matter of Illinois law. Therefore, we hold that the filing of the appeal in Sangamon County was timely despite the fact that that court could not proceed to the merits of the case, and that the appeal was properly heard upon its transfer to the circuit court of Cook County.

Ferndale contends that this case is governed by section 72 of the Act. (Ill. Rev. Stat. 1979, ch. lll2/s, par. 76.) At the time MDHC’s original complaint was filed with the Commission, the Act provided that any claim under that section for reparations for excessive charges by a utility were to be filed within one year of the time that the product, commodity or services of the utility were provided to the complainant for the allegedly excessive charge. (See Ill. Rev. Stat. 1975, ch. lll2/s, par. 76.) The water facilities in question here were completed in 1973, and MDHC's complaint was filed in 1976. Ferndale contends that the complaint to the Commission was therefore untimely and should have been dismissed.

Ferndale’s entire argument on appeal is based on the assumption that the complaint in question was a complaint for the refund of excessive charges under section 72. The complaint itself states that no claim is made under section 72 of the Act, but that the complaint is based on the fact that Ferndale entered into a contract with the developers which provided that the developers would be reimbursed for construction differently than the other customers of the utility, and that therefore the contract was discriminatory and unlawful. The complaint also makes an inappropriate prayer for damages under section 73 of the Act, which provides that an award of damages must be sought in the circuit court.

In its order on rehearing, the Commission found that the complaint was not a complaint for reparations under section 72, that the work performed and the equipment installed to serve the development was substantially different from what was called for by the contract and stated that because the parties had not entered into a revised agreement, Ferndale’s tariffs control the method and amount of reimbursement to MDHC. The Commission then recited the conditions for reimbursement which were contained in the tariffs, and stated that the ceiling on payments to MDHC would be $52,175, the total cost of construction to MDHC. Ferndale contends that because the order requires an exchange of money between the parties, it could only be made pursuant to section 72 because that section is the only provision of the Act which authorizes the Commission to order a utility to make a payment of money to a customer.

Ferndale is correct in its contention that the Commission has no general authority to fashion an award of damages. (See Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 477, 29 N.E.2d 1014.) However, the Commission was not fashioning an award of damages or awarding reparations in the instant case. Rather, the Commission was ordering Ferndale to follow its tariffs in reimbursing MDHC instead of relying on a contract which the Commission had already declared to be null and void to the extent that the contract contradicted the tariffs.

Section 64 of the Act (Ill. Rev. Stat. 1979, ch. lll2/s, par. 68) authorizes the Commission to hear complaints concerning any violation of the Act committed by any utility. MDHC’s complaint alleged that Femdale’s deviation from the procedures for reimbursement set forth in its tariffs violated the Act in several regards, the most notable being that MDHC was treated in a discriminatory fashion because it was required to construct on-site facilities at its own expense, while reimbursement was available to Femdale’s other customers. Discrimination of this type is prohibited by section 38 of the Act. (Ill. Rev. Stat. 1979, ch. lll2/3, par. 38.) There can be no doubt that the Commission is authorized to order Femdale to cease discriminating against a customer. This is essentially what the Commission did, and the fact that a payment of money by Femdale to MDHC is made necessary by the effect of the order is incidental to the action that the Commission took. Femdale makes no challenge to the sufficiency of the Commission’s order as a matter of law except to contend that the complaint was based on section 72 and is therefore untimely. We hold that the complaint was not based on section 72 of the Act.

For the reasons stated herein, the judgment of the circuit court of Cook County affirming the order of the Illinois Commerce Commission is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE LINDBERG

text:
    WASHINGTON BANK AND TRUST COMPANY, Plaintiff-Appellant, v. LANDIS CORP. T/A SOFRONEY REALTORS, Defendant and Third-Party Plaintiff-Appellee.—(Executive Commercial Services, Ltd., Third-Party Defendant.)
    Second District
    No. 82—220
    Opinion filed January 26, 1983.

      Robert R. Verchota, Keith E. Roberts, and Rodney W. Equi, all of Donovan & Roberts, of Wheaton, for appellant.
    Peter A. Zamis, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Washington Bank and Trust Company, as assignee of an equipment lease, brought suit against Landis Corporation T/A Sofroney Realtors for sums due under the lease. After trial, the circuit court of Du Page County found in favor of Landis. The bank appeals.

On December 21, 1976, Landis entered into an equipment lease with Executive Commercial Services, Ltd. The lease provided that Executive would purchase for Landis a photocopy machine of a make and model selected by Landis. Landis chose a certain Toshiba-brand copier, which Executive purchased from American Duplicating Products. In return, Landis was required to pay to Executive 60 monthly rental payments of $139.32 plus a security deposit (“advance rental”) on the last two months. On the same day the lease was executed, Landis acknowledged delivery of the machine by executing a receipt.

Over the next ZUz months, the machine was in constant disrepair, and American Duplicating sent repairmen as often as several times a week. Beginning in February 1977, Landis and American Duplicating exchanged a flurry of letters. Landis eventually went so far as to suggest the machine be replaced, a copy of this letter being sent to Executive. American Duplicating agreed to replace it with a comparable or better machine in a letter dated February 24, 1977. The owner of Landis was on vacation in late February and early March 1977. When he returned, the machine was gone.

In its place was a new Royal-brand photocopy machine of inferior quality. Letters and now telephone calls ensued. Sometime between March 5 and 8, the owner of Landis called an official at Executive who said a new lease would be prepared for the new machine. When the owner of Landis discovered the same price would be charged for the new machine, he refused to execute the new lease with Executive.

Since then, Landis has never used the new machine. The owner has requested that it be removed and on one occasion tried to return it to American Duplicating himself. Landis has since made no payments on either the old or new machine, and instead leases a Xerox-brand machine to meet its duplicating needs.

Little known to Landis, on March 7, 1977 — during the throes of the controversy — Executive assigned the first lease to the bank. Landis first learned of this assignment on January 23, 1978, in a letter from the bank. The record leaves no clue why Executive assigned a lease which either was rescinded or might soon be so; further, the record is scant on what the bank knew concerning the status of the lease, although the fact that the lease was bought in bulk suggests the bank was an innocent purchaser.

In any event, the essence of the complaint is that the bank now wants Landis to pay to the bank sums due under the first lease, even though the machine never worked and even though it was taken from Landis to make room for a replacement Landis never accepted. The trial court found that Executive could assign to the bank no more than it had, which was nothing. Executive could not enforce the first lease because it knew Landis was not in possession of the copier pursuant to the terms of the lease. Accordingly, since the bank took nothing, the trial court entered judgment for Landis.

Article 9 of the Uniform Commercial Code, specifically section 9— 206, provides in part:

“(1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the Article on Commercial Paper (Article 3). ***” Ill. Rev. Stat. 1975, ch. 26, par. 9 — 206.

That section applies to a lease regardless of whether it is intended as a security interest. (Ill. Ann. Stat., ch. 26, par. 9 — 206, Uniform Commercial Code Comment, at 129 (1974).) The bank took the assignment for value, in good faith, and without notice of a claim or defense. The lease provides in part that Landis will not assert defenses it has against Executive against the bank. Thus, only the holder-indue-course defenses set out in article 3 are valid. That section provides in part:

“To the extent that a holder is a holder in due course he takes the instrument free from
* * *
(2) all defenses of any party to the instrument with whom the holder has not dealt except
(a) infancy, to the extent that it is a defense to a simple contract; and
(b) such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity; and
(c) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; and
(d) discharge in insolvency proceedings; and
(e) any other discharge of which the holder has notice when he takes the instrument.” Ill. Rev. Stat. 1975, ch. 26, par. 3-305.

None of those defenses is applicable in the present case. Remission or termination of the instrument, if that occurred here, would be an ordinary discharge (of which the bank had no notice). The only conceivable subsection then which might apply is (b), which focuses on “such other incapacity, or duress, or illegality *** as renders the obligation *** a nullity.” (Ill. Rev. Stat. 1975, ch. 26, par. 3 — 305(b).) The comments to that subsection, however, suggest that it is limited as written — to insanity, duress, illegality, gambling, etcetera. (Ill. Ann. Stat., ch. 26, par. 3 — 305, Illinois Code Comment, at 180-82 (SmithHurd 1963).) Accordingly, Landis must pay.

Landis asserts, however, that paragraph 7 of the lease provides that Executive’s right to assignment is subject to Landis’ right to use and possession of the machine. Landis contends that since it didn’t have such use and possession, the assignment was ineffective. Whatever rights that provision may create between Landis and Executive, it cannot affect the rights of the bank against Landis under artide 9.

Accordingly, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE PERLIN

text:
      In re ESTATE OF GEORGE P. BRITT, Deceased.—(Anne M. Britt, Respondent-Appellant, v. American National Bank & Trust Co. of Chicago, Co-Executor, Petitioner-Appellee.)
    First District (2nd Division)
    No. 81—2593
    Opinion filed January 11, 1983.

      Bilandic, Neistein, Richman, Hauslinger & Young, Ltd., of Chicago (Harry A. Young, Jr., Robert J. Lifton, and Michael V. Casey, of counsel), for appellant.
    Martin Schwartz, of Highland Park (Jeffrey Urdangen, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

This is an appeal from an order construing the will of George P. Britt who died testate on April 14, 1980. Testator was survived by his wife, Anne M. Britt (Anne), and his six children from two former marriages. Following testator’s death, American National Bank and Trust Company, as co-executor, filed a petition for construction of the first sentence of the third article of the will which states: “If my wife survives me I give to her one-third (Vs) of my probate estate.” The petition named Anne Britt, the widow, and decedent’s six children, who are beneficiaries of a residuary trust established in the will, as respondents. Anne’s answer and supporting memorandum claimed that the bequest was for one-third of decedent’s gross estate without any deductions. None of the children filed an answer; five of them, however, submitted memoranda in which they contended that Anne was entitled to one-third of the estate after deducting, inter alia, the costs of administration (i.e., attorney and executor’s fees).

The trial court held that the term in Article THIRD “one-third (Vs) of my probate estate” meant one-third of the value of the inventory as filed with the probate court less all funeral expenses; all costs of administration, which are reasonable attorneys’ fees and executors’ fees; all costs of safeguarding and delivering the bequests, if any; and all proper charges against the estate, which are claims and debts owed by the decedent at the time of his death. Anne has appealed.

The starting point for our analysis is that Illinois follows the “burden on the residue” rule. Under this rule, taxes, debts and expenses of administration attributable to probate assets are borne by the residuary estate in the absence of a contrary indication in the will. (In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 436-38, 417 N.E.2d 266; see also First National Bank v. Hart (1943), 383 Ill. 489, 497, 50 N.E.2d 461.) There is a presumption that the attorney who prepared the will was aware of the rule when he drafted it. (In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 275 N.E.2d 685.) The rule operates as if it were written into the will itself. (In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 438.) If the will is silent as to the payment of taxes or other debts or fees allocable to probate assets, they are to be treated as expenses of administration and paid from the residue. 93 Ill. App. 3d 435, 436.

The bequest to the widow is contained in Article THIRD of the will and is not a residuary bequest. (Molner v. Silbert (1956), 8 Ill. App. 2d 388, 395-96, 132 N.E.2d 36.) Article FOURTH employs the term “residue” which has been defined as the estate remaining after the payment of charges, debts and particular legacies. (Retzinger v. Retzinger (1925), 239 Ill. App. 127, 133, rev’d on other grounds (1928), 331 Ill. 102, 162 N.E. 155.) The residuary estate is what remains of a decedent’s disposable or probate assets after payment of debts, expenses and other legal claims against the probate estate, including death taxes, and payment of the preresiduary legacies and devises. (See Annot., 68 A.L.R.Sd 714, 734 n.73 (1976).) Since Anne’s legacy is a preresiduary legacy, the residue, which bears the burden of paying the debts and expenses of administration, cannot be calculated until that legacy is paid. Thus, in the absence of a contrary expression in the will, her bequest is not subject to these debts and expenses. We find no such contrary expression in the first sentence of Article FIRST, on which appellees rely. That sentence states, “[m]y Executor shall pay all funeral expenses, costs of administration, including ancillary, costs of safeguarding and delivering bequests, and other proper charges against my estate.” This language does not indicate what source is to pay these expenses, costs and charges, much less direct that they be paid out of Anne’s preresiduary legacy. See In re Estate of Rosta (1982), 111 Ill. App. 3d 786, 795-96; In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1032-34, 422 N.E.2d 107; In re Estate of Gowling (1979), 77 Ill. App. 3d 548, 551-52, 396 N.E.2d 82, aff’d (1980), 82 Ill. 2d 15, 411 N.E.2d 266.

Appellees next argue that the chronological order of the will provisions requires that the expenses listed in Article FIRST be paid before Anne receives the bequest which is contained in Article THIRD. In Kelly v. Dyer (1934), 359 Ill. 46, 47, 194 N.E. 255, the testatrix devised certain real property “ ‘[sjubject to the payment of my funeral expenses and indebtedness.’ ” It was contended on appeal that pursuant to this language, funeral expenses and debts had to be paid before the devisees could share in the proceeds of the real estate. The supreme court rejected this argument stating, “[b]y providing in the first clause of her will that her debts and funeral expenses were to be paid she merely stated what the law requires to be done. The expression in the will adds nothing to the law.” 359 Ill. 46, 56; see also In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1033-34, 422 N.E.2d 107; In re Estate of Gowling (1979), 77 Ill. App. 3d 548, 396 N.E.2d 82, aff'd (1980), 82 Ill. 2d 15, 411 N.E.2d 266.

Appellees argue further that the burden on the residue rule exonerates only specific bequests and not general bequests. Characterizing the bequest to Anne as a general bequest, appellees conclude that Anne’s reliance on the rule is misplaced. We cannot agree. Whether her bequest is properly considered specific, general or demonstrative (which combines elements of both) is immaterial. None of the authorities cited by appellees holds that a nonresiduary general legacy may be charged with the expenses and debts of the estate where the residuary estate is sufficient to pay them. Application of the burden on the residue rule does not turn on whether the nonresiduary legacy is specific or general.

Appellees also argue that equity requires all beneficiaries to share in the costs of administration. Such general equitable considerations, however, cannot overcome the intent of the testator as expressed in his will nor do they supersede the burden on the residue rule where the will is silent as to the payment of such costs. (In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 437-38, 417 N.E.2d 266.) Had the testator intended Anne’s bequest to bear its proportionate share of fees, debts and charges, he could have given Anne one-third of his residuary estate and the appellees the remaining two-thirds in trust for their benefit. This he did not do. Anne was given a preresiduary bequest and the residue was given in trust to the appellees. (See Molner v. Silbert (1956), 8 Ill. App. 2d 388, 396, 132 N.E.2d 36.) We note in this regard that there is a presumption that the testator intended to provide for the widow’s interest. (In re Estate of Gowling (1980), 82 Ill. 2d 15, 22-24, 411 N.E.2d 266.) An intent to preclude application of the burden on the residue rule must be found in the words of the will itself and not in what is presumed to exist in the mind of the testator. In re Estate of Maddux.

In In re Estate of Doerfler (1952), 348 Ill. App. 347, 349, 109 N.E.2d 230, the will ordered the executor to pay “all my just debts and funeral expenses.” The next provision stated that, “after the payment of such funeral expenses and debts, I give, devise and bequeath to my husband *** a one-third part of my estate and property of whatsoever kind and wheresoever situated.” In Doerfler, the issue was whether the husband’s share was to be computed as one-third of the estate after deducting debts owing at the time of decedent’s death and funeral expenses, but before deducting expenses of administration and federal estate taxes, or whether the husband’s share was one-third of the estate after their deduction. The court found that the words employed in the will were plain and understandable and held that the husband’s one-third share was to be computed before deducting administration expenses. In the case at bar, the will states not “one-third of my estate” but “one-third of my probate estate.” (Emphasis added.) We do not believe that the inclusion of the word “probate” distinguishes the instant case from Doerfler. See also Molner v. Silbert (1956), 8 Ill. App. 2d 388, 132 N.E.2d 36.

Finally, appellees contend that testator’s silence with respect to payment of charges, when coupled with the direction in Article FIRST that the residue pay all taxes, indicates that testator intended to exonerate the residue from all expenses, costs and charges. In support of this they cite Brissenden v. Babcock (1968), 100 Ill. App. 2d 207, 241 N.E.2d 209, for the proposition that an intention not to deduct costs from a certain fund carries with it the implication that deductions should come from some other source. Article FIRST in testator’s will, however, contains no instruction regarding expenses, costs and charges. Moreover, the will in Brissenden, unlike the one here, provided that the beneficiary was to receive only a “net” amount. A similar argument invoking the doctrine of expressio unms est exclusio alterius was rejected in Molner v. Silbert (1956), 8 Ill. App. 2d 388, 394-96, 132 N.E.2d 36.

For the foregoing reasons, we believe the trial court erred in construing testator’s will. Accordingly, the court’s judgment is reversed and the cause is remanded with directions that the court enter an order that Anne Britt, under Article THIRD of testator’s will, is to receive one-third of testator’s probate estate without deductions for funeral expenses, costs of administration (including attorney fees and executors’ fees), or any other charges or claims against the estate.

Reversed and remanded with directions.

STAMOS and HARTMAN, JJ., concur.

      This appeal does not involve any issue relative to the payment of taxes. The testator directed that all taxes be paid out of the residuary estate.