author: MR. JUSTICE MORAN

text:
    Windsor Lake, Inc., an Illinois Corporation, and Clark Baldwin, Plaintiffs-Appellants, v. WROK, a Foreign Corporation Authorized To Do Business in the State of Illinois, and Rockford Newspapers, Inc., a Foreign Corporation Authorized To Do Business in the State of Illinois, Defendants-Appellees.
    Gen. No. 67-128.
    Second District.
    May 14, 1968.

      Jack R. Cook, of Loves Park, for appellants.
    Miller, Hickey, Collins, Gilbert & Powers, of Rockford, for appellees.
   MR. JUSTICE MORAN

On June 20, 1964, Radio Station WROK, broadcasting in Winnebago County, carried the following story:

“The operator of Windsor Lake, Clark Baldwin, denies charges of alleged inadequate lifeguard protection and unhealthy swimming conditions at the lake. However, such complaints may touch off investigations by the Winnebago County Board of Supervisors to come up with a law enforcing rules and regulations of such swimming facilities. County Health Officer, Robert Anderson, has reported complaints of swimmers suffering skin infections from swimming in the lake. Rockford Township Supervisor, Marie Sheehe, has received complaints the bottom of the lake is dirty. Officials have been peppered with complaints against the lake since the drowning this month of a fifteen-year-old youth at the lake.”

The story had apparently been prepared by the defendant, Rockford Newspapers, Inc., although it was not published in the newspaper. The newspaper supplied the story to the radio station, and the radio station broadcasted it on several occasions on that day.

The plaintiffs, Windsor Lake, Inc., an Illinois corporation, and Clark Baldwin, its President, brought this suit against the radio station and the newspaper in four counts, alleging that the report was libelous per se, or in the alternative that it was libelous per quod, had been motivated by malice and that the plaintiffs had suffered special damage.

The defendants made a motion to dismiss all counts of the complaint on the grounds that the story was not libelous, in the alternative that it came within the rule of qualified privilege, and that plaintiffs had failed to allege actual malice or special damage.

The trial court granted the motion and dismissed all counts of the complaint. Thereupon, the plaintiffs elected to stand upon their complaint and have brought the case to this court.

In oral argument before us, the plaintiffs concede that they did not allege special damage in count IV of their complaint, and they have abandoned that count on appeal.

The case is presented to us upon plaintiffs’ complaint, now in three counts, and defendants’ motion to strike. It is fundamental that such a motion admits all facts well pleaded, Palier v. New City Iron Works, 81 Ill App2d 1, 5, 225 NE2d 67 (1967).

Plaintiffs’ complaint denies that the County Health Officer and the Township Supervisor received the complaints or had the conversations described in the story. From the state of the record before us we are unable to determine the truth of these allegations, but, at the very least, they create issues of fact not susceptible to dismissal by motion. It appears to us that the complaint does indeed state a cause of action and that the case should be reversed and remanded for further proceedings to determine the factual issues presented.

Since the case must be remanded, we deem it appropriate to comment upon the various issues raised by the parties. The defendants allege that the story is subject to a qualified privilege, since it is a fair report of governmental proceedings. Section 611 of the Restatement of Torts provides:

“The publication of a report of judicial proceedings or proceedings of a legislative or administrative body or an executive officer of the United States, a State or territory thereof, or a municipal corporation or a body empowered by law to perform a public duty is privileged although it contains matter which, is false and defamatory if it is: (a) accurate and complete or a fair abridgment of such proceedings and (b) not made solely for the purpose of causing harm to the person defamed.”

In Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746 (1966), the Illinois Supreme Court held that a publication of the official proceedings of the Health Department of the City of Peoria was subject to a qualified privilege which could only be overcome by allegations and proof of actual malice and special damage. However, in the Lulay case there was a complete trial on the merits and a jury verdict in favor of the plaintiff. There has been no trial in this case and indeed the merits are not before us. We are unable to conclude from defendants’ motion that there was any governmental “proceedings.” There may well have been a “proceedings” but that is a matter of fact which must be determined by the trial court.

If, in fact, there was a governmental proceedings then the qualified privilege would arise and the plaintiff could not recover unless he has alleged and proven actual malice and special damage, Lundstrom v. Winnebago Newspapers, Inc., 58 Ill App2d 33, 36, 206 NE2d 525 (1965).

In this case the plaintiff has alleged that the County Health Officer and the individual plaintiff cautioned and instructed the defendant newspaper not to publish the story for the reason that the story might or could cause serious injury to plaintiff’s business. Plaintiff further alleges that the County Health Officer specifically instructed the defendant newspaper not to publish any conversation or disclosure and that the defendant newspaper agreed and consented not to make the publication. The plaintiff further alleges that despite these instructions the defendant newspaper published the story by giving it to the defendant radio station, knowing that it would be broadcasted, and that the defendant radio station broadcasted the story, knowing that the story was false. If we are to have a rule that a qualified privilege may be overcome by allegations of actual malice, then it follows that there must be some means of alleging actual malice and it seems to us that the plaintiff has properly alleged actual malice. Whether or not the plaintiff can prove the allegations of his complaint is not before us and must await a trial on the merits or some other proceedings to determine the factual questions presented.

We reach the same conclusion regarding plaintiffs’ allegation of special damage. The plaintiff alleges that as a result of the broadcast he suffered a loss of profit by a reduction in its gate attendance and concession receipts in the amount of $15,000 in 1964 and $10,000 in 1965. In our view these are proper allegations of special damage. Whether or not they are true must await a trial or other proceedings on the merits.

In New York Times Co. v. Sullivan, 376 US 254, the United States Supreme Court established the proposition that a State Court could not impose a rule of libel law violating the constitutional guarantees of free press and free speech. The court in that case, however, did not create an absolute privilege. The privilege is qualified, first, to governmental proceedings and, second, only when actual malice and special damage are absent.

We concede that the Illinois Supreme Court expanded this doctrine in the Lulay case; however, the doctrine is still limited to the degree that there must be some proceedings of some governmental agency and the privilege itself may be overcome by proper allegations of actual malice and special damage.

It is likewise true that the question of whether or not the publication is libelous and whether or not a qualified privilege exists is a question of law to be decided by the court, John v. Tribune Co., 24 Ill2d 437, 440-441, 181 NE2d 105 (1962); however, in this case the court does not yet have the merits before it and it cannot yet make that determination.

The same must be said of whether or not this is fair comment upon proceedings since the court cannot make that determination until it makes a decision on what proceedings occurred, if any.

The defendants next allege that there was no publication of the story from the defendant newspaper to the defendant radio station and that, therefore, the defendant newspaper cannot be charged. The defendants’ only authority for this proposition is the definition of the word “publication” which is “the act of publishing or making known; notifying or printing; proclamation; divulgation; promulgation — as a publication of the gospel; the publication of statutes or edicts.”

The complaint alleges that the defendant newspaper gave the story to the defendant radio station. This would be a publication if there is no privilege as between the two defendants (see Zepeda v. Zepeda, 41 Ill App2d 240, 254, 190 NE2d 849 (1963)). If the defendant newspaper had a duty to the defendant radio station to disclose the information in question and if it did so in good faith, then there would be a qualified privilege. There are no undisputed facts before us indicating either a duty or good faith on the part of the defendant newspaper. In addition to that, the privilege thus created is qualified and can be overcome by proper allegations of actual malice and special damage, Schlaf v. State Farm Mut. Automobile Ins. Co., 15 Ill App2d 194, 199-200, 145 NE2d 791 (1957). No decision on this question is possible since the facts have not been determined.

Finally, the defendant urges that the defendant radio station and the defendant newspaper are separate entities and that one was not the agent of the other. We note that in the case of libel both principal and agent can be responsible, assuming, of course, that there was an agency, that the agent was acting within the scope of his authority and that the article was libelous and beyond any privilege, Colmar v. Greater Niles Tp. Pub. Corp., 13 Ill App2d 267, 275-277, 141 NE2d 652 (1957); Randall Dairy Co. v. Pevely Dairy Co., 274 Ill App 474, 483 (1934). We also note that it is no defense to the publisher of a libel that he is merely reporting the statement of another person, Lorillard v. Field Enterprises, Inc., 65 Ill App2d 65, 73, 213 NE2d 1 (1965). In this case the plaintiff has alleged that the defendant newspaper is the agent of the defendant radio station and that the material was published within the scope of its authority. Since we are at the pleading stage, the plaintiff has properly alleged agency and can recover if he can prove his allegations. In any event, since these allegations have not been tested on the merits they are not susceptible to a motion to strike.

It may well be that the various matters yet to be determined in this case can be determined by a motion for summary judgment with accompanying affidavits. If factual matters remain unresolved after that procedure, then there must be a trial on the merits. In any event, the complaint states a good cause of action at this point in the proceedings and the cause must, therefore, be reversed and remanded to the trial court with instructions to conduct further proceedings in accordance with the views expressed herein.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Maurice Spilky, d/b/a Beatrice Realty, Plaintiff-Appellant, v. Harold McDonald, et al., Defendants-Appellees.
    Gen. No. 67-157.
    Second District.
    May 14, 1968.

      Adolph L. Haas, of Chicago, and Guerine and Guerine, of Melrose Park, for appellant.
    Melvin M. Landau, of Chicago, and Walter Bard Carroll, of Downers Grove, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a suit for a real estate broker’s commission. Plaintiff, a broker, filed a verified action in the Circuit Court of Cook County, alleging that he and W. P. Randell, another broker, entered into an agreement with the defendants on October 3, 1966, to procure a purchaser for certain real estate in DuPage County which was owned or controlled by the defendants. The complaint alleged that the sales price was to be $460,000, and that the real estate commission was to be 6% of the sale price, so that plaintiff and the other broker would each receive $13,800 as commission. The complaint went on to allege that plaintiff and Randell did procure a purchaser who was ready, willing and able to purchase the property on the defendants’ terms, but that the defendants refused to execute the real estate contract and escrow agreement requested by the purchaser and refused to pay plaintiff his commission. Randell did not join in the action.

The defendants filed a motion to transfer venue of the case from Cook County to DuPage County, and supported their motion by affidavits to the effect that they resided in DuPage County, that they had met the plaintiff on one occasion in DuPage County and at no other time or place, that they never spoke with him by telephone, and that they never authorized anyone to prepare a real estate contract concerning the property in question. Plaintiff filed a verified answer to the motion, stating (1) he had telephone conversations with either or both defendants on and after October 3, 1966; (2) that on October 3, 1966, a meeting took place at the law office of Thomas Krone in Downers Grove, Illinois (which is in DuPage County) and that the persons present at the meeting were the defendants, who were being represented by Krone, the plaintiff, Randell and Alfred W. Israelstam, an attorney representing the purchaser, Lloyd Levine; (3) “that after the principals agreed upon the terms, provisions and conditions of the sale as set forth in the complaint filed herein,” Israelstam and Krone agreed to meet three days later at the Chicago Title and Trust Company in Chicago, said appointment being approved by the principals thereof; (4) that on the appointed day, October 6th, Israelstam was at the Chicago Title and Trust Company in Chicago and that Randell appeared and advised him that he, Randell, was authorized by the defendants to prepare the escrow agreement on their behalf, whereupon such an agreement was drawn up. Plaintiff also filed an affidavit of Israelstam, reciting that, on October 3, 1966, at the office of Thomas Krone in Downers Grove, Illinois, a conference took place between the persons already mentioned and “that at said conference the terms, conditions and provisions of sale as set forth in the complaint filed herein between the sellers and purchaser were orally agreed upon.” This affidavit further recited that an agreement was made to meet three days later at the Chicago Title and Trust Company in Chicago “for the purpose of preparing an escrow agreement containing the terms, conditions and provisions of sale heretofore orally agreed upon.” The affidavit concluded by reciting that on October 6, 1966, Israelstam was met by Randell at the Title and Trust Company and that Handed “stated that he would sit in during the drafting of the escrow pending the retaining by sellers of another attorney to represent them.” Thereupon, according to the affidavit of Israelstam, an escrow agreement was drafted.

Defendants’ motion to transfer the case to DuPage County was made pursuant to section 8(3) of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 8(3)), which provides that such motions may be supported and opposed by affidavit, and that, in determining issues of fact raised by the affidavits, “any competent evidence adduced by the parties shall also be considered.” At the hearing on the motion, plaintiff endeavored to convince the court that venue was proper in Cook County because, although neither defendant resided there, venue could be based upon the fact that a part of the “transaction” occurred in Cook County. The applicable venue statute is section 5 of the Civil Practice Act, (Ill Rev Stats 1965, c 110, § 5), which provides that, in actions of this kind, suit must be commenced in the county of residence of any defendant, or “in the county in which the transaction or some part thereof occurred out of which the cause of action arose.”

The motion for transfer was argued orally, and, after considering the affidavits, the trial judge indicated that he was inclined to grant the motion. Plaintiff’s attorney then offered to produce testimony by the plaintiff to supplement the affidavits, and it appears from the colloquy that his testimony would have related to statements of Randell and to “negotiations.” No offer of proof was made, and we are unable to tell what “negotiations” were referred to.

Plaintiff claims that the court erred in transferring the case to DuPage County, because part of the “transaction” occurred in Cook County, and, further, that the court erred in refusing to hear testimony by the plaintiff in regard to the motion. We believe that no error was committed. It is conceded that neither defendant resided in Cook County and that the only possible basis for venue there would be on the theory that part of the transaction in question occurred there. However, to justify venue on the basis of a “transaction” it must be a “transaction or some part thereof . . . out of which the cause of action arose” This is a suit on an oral contract to pay a real estate commission. From everything we can glean from the original complaint and the affidavits, that agreement, if it was made, was made in Downers Grove on October 3, 1966. It also appears from the complaint and the affidavits of plaintiff and Israelstam that the purchasers were procured by plaintiff and Randell at that same time, and that the terms and conditions of the sale were agreed upon by the defendants and the purchasers in the office of Mr. Krone in Downers Grove. Thus, from the pleadings and the affidavits, it appears that all necessary elements of plaintiff’s cause of action against the defendants were fulfilled in Du Page County on October 3, 1966. As plaintiff points out in another connection, “The broker becomes entitled to a commission from the seller at the time he finds a buyer ready, willing and able to enter into an agreement on the seller’s terms. It is not essential in Illinois that an executed written agreement actually be entered into. The seller becomes bound at the moment that his terms have been met. Chicago Bar Ass’n v. Quinlan & Tyson, Inc., 53 Ill App2d 388, 412, reversed in part on other grounds in 34 Ill2d 116.” Thus, the fact that the formal contract between the defendants and the purchasers was to be drawn up in Cook County three days later is immaterial, because the execution of that contract is no part of plaintiff’s cause of action. Accordingly, assuming that Randell did appear in Chicago as the agent of defendants for the purpose of drawing up the contract and escrow agreement, still, his activity on that occasion was not a part of the transaction out of which plaintiff’s cause of action arose. See Heldt v. Watts, 329 Ill App 408, 413, 69 NE 2d 97 (1946); La Ham v. Sterling Canning Co., Inc., 321 Ill App 32, 43-45, 52 NE2d 467 (1943).

We do not believe that the court erred in refusing to hear the testimony of plaintiff in connection with the motion for transfer, because it was apparent from the pleadings and affidavits which were before the court that the transaction giving rise to the cause of action occurred in DuPage County. It appears from the colloquy that plaintiff wished to supplement the affidavit of Israelstam by testifying that Randell said he appeared in Chicago on October 6th as the representative of defendants. Under the view we take of the matter, Randell’s capacity on October 6th had nothing to do with plaintiffs’ cause of action. As to plaintiffs’ offer to testify to “negotiations,” the record is silent as to what he had in mind. If he was referring to negotiations between defendants and the proposed purchaser, such negotiations would be irrelevant. If he was referring to preliminary or incidental contacts between himself and defendants, these, again, would not be part of the “transaction” as that term is used in section 5.

The plaintiff also claims that the court in Cook County arbitrarily refused to hear the testimony of the plaintiff which was offered to prove that negotiations took place on the telephone between plaintiff, while in Chicago, and the defendant while in DuPage County. However, his verified answer to the motion requesting a transfer set forth such matter. Further, this offer was made after the court had indicated that it was going to allow the transfer. Under the circumstances we do not feel that the court acted arbitrarily. Heldt v. Watts, supra, 415-416.

After the case was transferred to DuPage County, the original complaint and a first amended complaint were dismissed on motions of defendants, apparently for failure to state a cause of action. Plaintiff then filed a second amended complaint, and this was also dismissed by the Circuit Court of DuPage County for failure to state a cause of action. Plaintiff appeals from this dismissal of his second amended complaint. We feel that the dismissal was proper, because the second amended complaint does fail to state a cause of action.

Paragraph 3 of the second amended complaint reads as follows:

“That on or about October 3, 1966, in the City of Chicago, plaintiff and W. P. RANDELL, another broker, made and entered into an oral agreement whereby defendants employed plaintiff and the other broker, to procure a purchaser or purchasers for said real property and agreed to pay said plaintiff and other broker each, one-half of 6% of said sale price of $460,000.00, or the sum of $13,800.00 to each, the plaintiff and the other broker, which represents the regularly established commission for such sales.”

This is the only portion of the pleading which refers to any agreement between plaintiff and the defendants. (It will be noted that, unlike the original complaint filed in Cook County, the second amended complaint recites that the agreement was made at Chicago.) Defendants point out that paragraph 3 is somewhat unclear as to whether the agreement was made between plaintiff and Randell or between plaintiff and Randell on the one hand and defendants on the other. We agree that the language is somewhat confusing, but we feel that a fair interpretation of paragraph 3, read in connection with the remainder of the second amended complaint, results in the conclusion that an agreement between the brokers and the defendants is adequately alleged.

Paragraph 4 of the second amended complaint reads as follows:

“That pursuant to said employment agreement, plaintiff and W. P. RANDELL, entered upon said employment and he and W. P. RANDELL, proceeded thereafter to perform services for the procurement of a purchaser or purchasers for said property, and on or about October 3, 1966, plaintiff and W. P. RANDELL, procured purchaser, to-wit: LLOYD LEVINE, who was able, ready and willing to purchase said property at said price.”

From the allegations of paragraphs 3 and 4, it would appear that the plaintiff had sufficiently pled a brokerage contract and performance on his part. However, paragraphs 5 and 6 change the picture completely:

“5. That pursuant thereto, a real estate sale contract was prepared in Chicago, Illinois, a copy of which contract is attached hereto, marked Exhibit ‘A’, and made a part hereof.
“6. That pursuant thereto, an escrow was created and prepared at the Chicago Title and Trust Company in Chicago, Illinois, a copy of which escrow is attached hereto, marked Exhibit ‘B’ and made a part hereof.”

Turning to the exhibits referred to in paragraphs 5 and 6, we find that the proposed contract and escrow agreement contained several conditions which, in our view, establish that plaintiff did not procure a purchaser who was ready, willing and able to purchase the property on the terms specified in paragraph 3 of the second amended complaint. These conditions were as follows:

First, the purchaser’s nominee was to obtain a first mortgage of $300,000 on 82 acres of the property. (The entire tract was 92 acres.) The purchaser was to keep $100,000 of the mortgage proceeds and pay the remaining $200,000 to the defendants.

Second, the purchaser’s nominee was to give defendants a second mortgage in the amount of $160,000 on the 82 acres, payable in installments over a five-year term. No payments were to be made on this mortgage unless the zoning of the 82 acres was changed to industrial.

Third, the purchaser’s nominee was to pay $100,000 for the remaining ten acres of the property, payable over five years, secured by a mortgage on that portion of the property. The payments on this portion of the property were not to start until the ten acres had been rezoned to permit a restaurant and motel use and a liquor license had been obtained.

The second amended complaint does not allege that the defendants ever agreed to any of these conditions. Although paragraphs 5 and 6 allege that the documents containing these conditions “were prepared,” it is not alleged that defendants prepared them or agreed to their preparation.

The second amended complaint concludes by alleging that the defendants refused to execute the contract and escrow agreement which had been prepared and have refused to pay plaintiff his claimed commission of $13,-800.

Paragraph 3 of the second amended complaint, which sets out the alleged agreement between plaintiff and the defendants, does not state that defendants agreed to pay a commission to plaintiff for procuring someone who would purchase the property by paying in installments and subject to rezoning. It alleges, rather, that defendants agreed to pay a commission to plaintiff and the other broker for procuring someone who would purchase the property for $460,000. Nothing is said about the terms of payment. In the absence of any allegation that defendants agreed to accept deferred payments, we must conclude that the sale was to be for cash. See, 35 ILP, Vendor and Purchaser, section 42, which, in commenting upon the interpretation of a contract between vendor and purchaser, states that:

“Where the contract does not contain a provision permitting the time of payment of the purchase price to be deferred, the contract will be construed as constituting a cash sale.”

See also Purgett v. Weinrank, 219 Ill App 28, 31 (1920) which applied this rule to a real estate brokerage contract. See also 8 Am Jur, Brokers, section 63 and 18 ALR 2d 376, 382-384.

Similarly, the second amended complaint does not allege that defendants ever agreed to sell the property subject to a rezoning and the obtaining of a liquor license. Yet, the complaint does allege that plaintiff procured a purchaser who was willing to buy only on such terms. Since these are not alleged to be the defendants’ terms, it cannot be said that plaintiff has alleged facts which, if proved, would show that he procured a purchaser “ready, willing and able to buy” on defendants’ terms. While paragraph 4 of the second amended complaint, quoted above, does allege that plaintiff procured a purchaser who was “able, ready and willing to purchase said property at said price,” the question of price is only one element to be considered. As we have indicated, the exhibits attached to the second amended complaint make it clear that the price was to be paid over a period of time and then only under certain contingencies which are not alleged to have been contemplated by the agreement between plaintiff and defendants.

We hold, therefore, that the second amended complaint does not state a cause of action, because it does not allege that plaintiff procured a purchaser who was ready, willing and able to purchase the property on the terms specified in the agreement between plaintiff and the defendants. Accordingly, the judgment of the lower court will be affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MORAN, J.

text:
    People of the State of Illinois, Appellee, v. John B. Hartfield, Appellant.
    Gen. No. 67-84.
    Fifth District.
    May 15, 1968.

      Robert H. Rice, of East St. Louis, for appellant.
    John M. Karns, Jr., State’s Attorney, of Belleville, for appellee.
   MORAN, J.

Defendant appeals from a judgment of the Circuit Court of St. Clair County, Illinois, finding him guilty of the charge of illegal possession of marijuana, and from the sentence imposed by the court on that judgment.

The principal issue raised on appeal concerns the validity of the search warrant which produced the evidence upon which the conviction was based,

Shortly after midnight on June 15, 1966, a raid was conducted on the apartment of the defendant by Mitchell Ware and John Naylor of the Illinois Division of Narcotic Control, and William Dye, an Illinois State Trooper, pursuant to a search warrant issued upon the complaint of a person whom the agents referred to as a division special employee, commonly known as an informer. The complaint stated that the complainant requested that a search warrant be issued to search John B. Hartfield and 818 North 24th Street, Second floor, East St. Louis, Illinois. After stating that there was probable cause that the defendant possessed marijuana, the complaint was signed by Joe Smith, complainant. Following the complainant’s signature, were the typed words: “Subscribed and signed before me on June 14, 1966. /s/ George H. Sansom, Judge — Mag.”

The testimony indicates that the three officers entered the building and ascended the stairs to Apartment 4. Trooper Dye knocked on the door. Naylor testified that a male voice asked, “Who is there?” and that Dye identified himself as State Police. Naylor also testified that Ware then said, “Open the door — Narcotics,” and receiving no response, Ware kicked in the door. Ware testified that Dye identified himself by saying, “State Police,” but that he (Ware) did not say anything, and thereafter kicked the door open. Princess Hartfield, wife of the defendant, testified that upon hearing the knock on the door she stated, “Who is it? and they said, ‘State Police.’ I said ‘Just one moment’ . . . immediately after that they bashed the door in . . . .”

Upon entry the defendant was sitting on the edge of the bed in his shorts and his wife was dressed in a nightgown and was putting on a housecoat. A search of the apartment was commenced and after approximately twenty minutes a quantity of marijuana was found scattered throughout the drawer of a chest. The search also disclosed a pistol and some clothing. Officer Dye testified that the clothing was taken because one or two of the dresses had price tags and other articles were still in boxes. These articles of clothing were taken by Dye and were retained by the State Police. Naylor forwarded the marijuana and pistol to the Bureau of Criminal Identification and Investigation.

Analysis disclosed a quantity of .995 grams of marijuana. Defendant’s motion to suppress the evidence seized in the search, on the basis of an illegal search and seizure, was denied. The court, sitting without a jury, found the defendant guilty and imposed a sentence of not less than five years and not more than ten years.

The defendant first contends that the complaint for the issuance of a search warrant failed to comply with the United States Constitution which requires an oath or affirmation as a basis for a warrant, and the Illinois Constitution which requires an affidavit. United States Constitution, Fourth Amendment; Illinois Constitution, art 2, § 6. The defendant contends that the complaint was not sworn to as required, because the jurat stated only that the complaint was “subscribed and signed.”

The testimony on which a magistrate acts must be reduced to writing, incorporated in a formal complaint and verified by affidavit; and the complaint must be such that, if false, perjury may be assigned on the affidavit. People v. Sovetsky, 343 Ill 583, 175 NE 844. The search warrant issued by the magistrate stated: “On this day Joe Smith complainant, has subscribed and sworn to the search warrant before me.” The People contend that the magistrate did swear the complainant but the word “signed” was inadvertently typed in place of the word “sworn” in the jurat.

The sole question relating to the complaint is whether or not there is sufficient evidence to show that the complainant made an oath, affirmation or affidavit sufficient to afford the defendant redress against the cornplainant in the event the complaint was false. A sworn statement is required because one cannot be convicted of perjury for having a belief, even though the belief is without factual basis. People v. Sovetsky, supra.

In Kruse v. Wilson, 79 Ill 233, the jurat, attached to the affidavit for an attachment writ, was not signed by any officer. In that case, the clerk recited in the attachment writ that the plaintiff had complained on oath to him. The court said: “It is not to be presumed the clerk has made a false statement in the writ, or that he would have issued the writ without the oath.” Id. at 236-237. In People v. McGrain, 38 Ill2d 189, 230 NE2d 699, the question of whether the complaint stated probable cause was raised. The court held that where a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical rather than a common-sense manner. Likewise, the requirement of an oath or affidavit should not be interpreted in a hypertechnical manner. It is apparent that the words “subscribed and signed” were entered in place of the words “subscribed and sworn,” by mistake. In addition, the magistrate stated in the search warrant that the complainant “has subscribed and sworn . . . .” It is not to be presumed that the magistrate made a false statement in the search warrant or that he would have issued the search warrant without the oath, affirmation or affidavit. We believe that the complainant subjected himself to perjury if his statement proved to be false and that the complaint, when read in conjunction with the search warrant, complied with the constitutional requirements of an oath, affirmation or affidavit.

The defendant’s next contention is that the search warrant did not contain a description which particularly points to a definitely ascertainable place to be searched so as to exclude all others. A search warrant must particularly describe the place to be searched. United States Constitution, Fourth Amendment. The search warrant authorized the search of “John B. Hartfield (person) and 818 North 24th St., 2nd floor, East St. Louis, Illinois. . . .” The testimony of the defendant’s wife stated that the building contained four apartments, two on the first floor and two on the second. She further testified that the other apartment on the second floor was vacant at the time of the arrest. The defendant relies upon People v. Martens, 338 Ill 170, 170 NE 275, which stated the rule that a search warrant must describe the premises so as to avoid any unreasonable or unauthorized invasion of the right of security and that the premises must be identified in such a manner as to leave the officer in no doubt and no discretion must be left to him regarding the premises to be searched.

The defendant contends that the search warrant was defective since it did not designate the particular apartment on the second floor. In United States v. Hinton, 219 F2d 324, the court stated the general principle that a warrant is void which describes an entire building when cause is shown for searching only one apartment. The court held that it was immaterial whether or not other people who were not named in the warrant were living in the described premises, since the warrant was invalid when issued and therefore the search was illegal. Another federal court approaches the problem from a different view. In United States v. Poppitt, 227 F Supp 73, the court stated that the issue is whether evidence obtained under a search warrant properly issued, must be suppressed when later evidence discloses that it applies not only to premises occupied by the defendant, but also to an apartment occupied by persons who were in no way implicated in the crime. Id. at 77.

“. . . It would seem that if an affiant has reasonable grounds for believing that an entire building should be searched, a warrant directing such a search should be sustained, even if it be later shown that affiant’s belief was erroneous, provided the search is actually restricted to the part of the building to which the warrant should have been directed.” Ibid.

In the instant action there was no evidence to show that the informer knew of the other apartment on the second floor or that he thought it was or was not being used by the defendant for the purpose of possessing marijuana. The agent testified that the informer furnished them with the information relating to the exact location of the defendant’s apartment, that is, to the rear of the second floor.

In People v. Cain, 35 Ill2d 184, 220 NE2d 195, the search warrant read: “Upon certain premises described as and located at the third floor, front of the building known as 3946 S. Indiana. . . .” In that case the defendant contended that because the description applied also to the room next door (the apartment having been subdivided) that the warrant was too vague. The court held: “There is not enough merit in this position to justify extended discussion. The warrant sufficiently identified the person and premises to be searched.” Id. at 186.

We believe the warrant in the present case was valid when issued and that the search was legal, since it was restricted to the part of the building to which the warrant should have been directed.

The defendant also alleges that the execution of the search warrant was in violation of the constitutional guarantee against unreasonable search and seizure, because the officers failed to state their purpose after announcing their presence. Masiello v. United States, 304 F2d 399. In that case the defendant heard a knock on his apartment door and the statement, “police,” and a few seconds later the police broke open the door. On appeal the conviction was reversed on the grounds that the entry was unlawful in that it violated a federal statute, 18 USC, § 3109, which specifies that an officer may break open a door to execute a search warrant if . . after notice of his authority and purpose, he is refused admittance . . . Ibid.

In Miller v. United States, 357 US 301, 2 L Ed2d 1332, 78 S Ct 1190, the police recovered marked currency used for the purchase of narcotics. The defendant moved to have the currency excluded on the grounds that the police did not expressly demand admission or state their purpose. The court stated that the general rule is as that expressed in the federal statute above — authority and purpose must be stated. The court stated that there were some states which allow noncompliance in exigent circumstances, as for example, when the officers believe that there is danger of bodily harm or that the person to be arrested is fleeing or attempting to destroy evidence.

In Ker v. California, 374 US 23, the police officer obtained a passkey to an apartment, entered the apartment, arrested the parties and found marijuana. A California statute allowed an officer to break open a door after having demanded admittance and explaining the purpose for desiring admittance. The Supreme Court held that although the officer did not comply with the terms of the statute, the circumstances came within judicial exceptions which had been engrafted upon the statute by a series of decisions. The court held that although the standard of reasonableness is the same under the 4th and 14th Amendments to the United States Constitution, a distinction must be made between evidence held inadmissible under the federal rule and that held inadmissible because of the United States Constitution. Id. at 33. The court went on to say that:

“The states are not . . . precluded from developing workable rules governing arrests, searches and seizures to meet ‘the pretrial demands of effective criminal investigation and law enforcement’ in the states, provided that these rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain.” Id. at 34.

In explaining the Miller case, supra, the court noted that in Miller no exigent circumstances were present. This is evidently based on the fact that the evidence in that case was marked currency and that since the defendant did not know this, there would be no danger of the evidence being destroyed if the police stated the proper authority and purpose. In Ker, however, the court stated:

“Here justification for the officers’ failure to give notice is uniquely present. In addition to the officers’ belief that Ker was in possession of narcotics which could be quickly and easily destroyed .... We therefore hold that in the particular circumstances of this case, the officers’ method of entry, sanctioned by the law of California, was not unreasonable under the standards of the Fourth Amendment as applied to the States through the Fourteenth Amendment.”

Thus the fact that no purpose is announced pri- or to a forceful entry is not per se a violation of constitutional rights. If, as in the case of the federal statute, a stated purpose is required, the failure to do so will result in the suppression of the evidence obtained. The Illinois Statute relating to the use of force in the execution of a search warrant states: “All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” Ill Rev Stats, c 38, § 108-8 (1965). There is no statutory requirement that the officer first state his authority and purpose. Therefore, in Illinois, the determination of whether a forceful entry may be executed without stating the authority and purpose rests upon constitutional grounds. The statute does not preclude such entry; therefore, the entry is valid if it does not violate constitutional rights. The factual situation in the instant case is similar to that found in the Ker case. There was justification for the officers’ failure to state their purpose because of their belief that the defendant was in possession of marijuana which could be quickly and easily destroyed. As in the Ker case, the officers’ method of entry under the particular circumstances was not unreasonable under the standards of the Fourth Amendment to the United States Constitution.

The defendant further contends that the minute quantity of marijuana discovered in the raid does not justify a conviction of possession of a narcotic. To support this position, the defendant cites two cases from other jurisdictions. People v. Pippen, 227 NYS2d 164; Pelham v. State (Tex), 298 SW2d 171. We have examined these cases and fail to see their application in the present action. In each of them the quantity of narcotic found was so small as to be entirely consumed in the chemical analysis. In Pelham the court concluded that to constitute the unlawful act of possession there must be an amount sufficient for the common use thereof.

The Illinois Statute states that it is unlawful to possess any narcotic drug except as authorized. Ill Rev Stats, c 38, § 22-3 (1965). There is no mention of a minimum required quantity. The quantity of marijuana found in the defendant’s possession was .995 grams. This amount was not consumed during chemical analysis. In fact, the marijuana was introduced into evidence. Under these circumstances, we find that there was sufficient evidence to raise a rebuttable presumption that the amount of marijuana found was sufficient for common use.

The defendant’s next point raised on appeal is that the officers failed to comply with the statutory requirement that all articles seized shall be returned without delay to a court of jurisdiction. Ill Rev Stats, c 38, § 108-10 (1965). Although the evidence does disclose that the articles were not so returned, the case of People v. York, 29 Ill2d 68, 193 NE2d 774, held that failure to comply with statutory requirements concerning the procedures to be taken after the warrant has been served does not render the search warrant void. Id. at 71.

The defendant also contends that the requirements of chapter 38, section 114-12, Ill Rev Stats (1965) were not met. Section (e) of this statute requires: “The order or judgment granting or denying the motion shall state the findings of fact and conclusions of law upon which the order of judgment is based.” At the conclusion of the evidence given in relation to the motion to suppress, the court made the following ruling: “The Motion to Suppress the evidence will be denied. The question of whether or not the place is stated in definitiveness in the Complaint it sets forth the probable cause, and the Complaint in essence is satisfactory.” The defendant’s attorney then made a further objection to the search warrant on the ground that the officers did not comply with the requirements relating to the disposition of the articles seized. The court answered: “The objection is noted and the ruling will be the same.” Evidently, it is in this ruling that the defendant claims the court failed to state its finding of fact and conclusions of law. However, this contention relates to what occurred after the execution of the search warrant and we have already seen that what occurs after the warrant is executed does not render the search warrant void. The lower court complied with the statutory provisions; the defendant’s objection did not relate to evidence illegally seized but rather to what happened to the evidence after it was seized.

The defendant’s final contention relates to the items of clothing and the pistol which were seized. These items were not mentioned in the search warrant nor were they introduced as evidence. It appears from the record that the clothes are still in the possession of the State Police and the pistol in the possession of the Bureau of Criminal Identification and Investigation.

Under the provisions of chapter 38, section 114-12, Ill Rev Stats (1965), a defendant may move the court for the return of property on the ground that the search and seizure with a warrant was illegal because the evidence seized is not that described in the warrant. The motion to suppress the evidence in this case does not specifically mention those items which were not described in the warrant. However, the motion is sufficiently broad to include this contention. Therefore, the cause is remanded for a determination of whether the items retained should be returned to the defendant. From the evidence in the record it is apparent that these items should be returned unless otherwise subject to lawful detention.

Accordingly, the decision of the lower court is affirmed, but remanded for a determination of whether the items not described in the search warrant should be returned to their owner.

Affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leonard Dolatowski, Defendant-Appellant.
    Gen. No. 67-51.
    Third District.
    May 20, 1968.
    G. Britt Barr, of Joliet, for appellant.
    George Sangmeister, State’s Attorney of Will County, of Joliet, for appellees.
   ALLOY, P. J.

Defendant was sentenced to the Illinois State Penitentiary for a term of one to ten years following conviction of the crime of escape from the Illinois State Penitentiary at the Stateville branch in Will County, Illinois, on September 1, 1961. At the time, defendant was serving a sentence of five to fifteen years for burglary under four mittimi issued by the Criminal Court of Cook County, Illinois. During the approximate period of five years of his imprisonment, defendant had a good record and was given duties outside the prison walls, which involved washing and servicing automobiles, and driving guards and inmates to and from various assignments. For a number of months prior to September 1, 1961, defendant had been receiving intoxicating liquor from a guard in exchange for filling his automobile tank with gasoline. On September 1, 1961, the guard brought his automobile to the defendant who serviced the car and then took a quart of vodka from the trunk in accordance with the previous arrangement with the guard. Defendant and another inmate of the penitentiary then drank the entire bottle. The defendant, thereafter, with another inmate drove past the guard’s station and proceeded to Chicago where he was arrested on September 2, 1961. The guard who had furnished the alcoholic liquor, testifying on cross-examination, was asked “Did you notice anything unusual about the defendant?” He answered “No, I did not.”

The defendant was indicted and tried by a jury for the crime of escape from the penitentiary. The jury returned a verdict of guilty. Defendant’s motion for a new trial thereafter was denied and he was sentenced to a term of one to ten years with such sentence to commence after the expiration of the original sentences pursuant to which defendant was in the penitentiary.

On appeal in this Court, defendant contends that he was not afforded a fair and impartial trial as guaranteed by the due process of law clause in the constitutions of the United States and State of Illinois; that the jury was not properly instructed; and that the verdict was not sustained by the evidence. This cause was originally filed in the Supreme Court of this State but was transferred to this Court for a determination.

The basic issue with which we are concerned arises by reason of People’s Instruction No. 5 which attempted to explain to the jury the law relating to the effect of voluntary intoxication on the jury’s determination of defendant’s guilt or innocence of the crime of escape. The instruction as submitted is in the following form:

“The Court instructs the jury that under the law in this state, voluntary intoxication is not an excuse for commission of crime. If you believe from the evidence beyond a reasonable doubt that the defendant voluntarily became intoxicated and while so intoxicated escaped from the Illinois State Penitentiary as charged in the indictment, his intoxication would be no excuse for his unlawful act, unless you further believe from the evidence that his intoxication was such that at the time such act was committed the defendant was wholly incapable of forming an intent to escape and had not formed such intent prior to his becoming intoxicated.” (Emphasis ours.)

On the basis of the cases in this State which have considered the defense of voluntary intoxication, it has been specifically determined that voluntary intoxication is not a defense in a criminal action. Where the crime involves a specific intent, however, it is possible for defendant to show that because of his intoxication he did not have, or was incapable of forming, the required specific intent. If in the case before us, the evidence would show that defendant did not have such specific intent because of his intoxication, then his intoxication could become a defense. As stated in People v. Klemann, 383 Ill 236, 48 NE2d 957, at pages 238-239:

“The final inquiry is whether plaintiff in error was sufficiently intoxicated, at the time he committed the acts complained of, to excuse the crime. The common-law rule has always prevailed in this State that voluntary intoxication affords no excuse for crime. . . . That rule has been woven into our statute, (Ill Rev Stats 1941, c 38, par 599,) which provides that ‘drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness be occasioned by the fraud, contrivance or force of some other person for the purpose of causing the perpetration of an offense/ In the instant case there is no claim that the intoxication relied on as a defense was involuntary.
“It is insisted, however, that there is an exception to the above general rule, which is as well established as the rule itself, to the effect that where a specific intent is an essential element of the crime charged, the defendant is not guilty if he was intoxicated to such a degree as to be unable to form an intent. That exception was authoritatively recognized by this court in the late case of People v. Gilday, 351 Ill 11. This supposed exception to the rule, to be exact, is not an exception proper, but a super-imposed rule applicable only where the offense is, by law, made to depend upon the state or condition of the mind of the accused at the time, for if the act must be committed with a specific intent, and the defendant is incapable of forming any intent whatever, the offense has not been committed. While drunkenness is no excuse for any act done or committed, the want of mind operates, not to excuse the crime, but to render the accused incapable of committing it.”

The Supreme Court in People v. Hare, 25 Ill2d 321, at page 326, 185 NE2d 178, in treating the question of voluntary intoxication in a criminal case asserted:

“This court has stated in People v. Lion, 10 Ill2d 208, that voluntary drunkenness is no excuse for the perpetration of a criminal act, (Ill Rev Stats 1955, c 38, par 599; People v. Klemann, 383 Ill 236) and that it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to suspend entirely the power of reason. (People v. Minzer, 358 Ill 345; People v. Cochran, 313 Ill 508; People v. Brislane, 295 Ill 241; 21 ILP, Homicide, sec 17.) Merely being ‘drunk’ or ‘intoxicated’ is no defense, even though the condition may have lasted for several days.”

In the instruction before us, it is obvious that the mischief arises from the use of the words “beyond a reasonable doubt.” Without the addition of this phrase, the instruction would be proper since it tells the jury that voluntary intoxication is not normally a defense. It then adds the exception that if the intoxication prevented defendant from forming the intent to escape, then such intoxication would be a defense. It also advised the jury that if the defendant had the intent to escape before he became intoxicated then the voluntary intoxication was not a defense. This was also proper. The basic question is whether the addition of the phrase “beyond a reasonable doubt” changed the meaning of the instruction so as to render it an improper definition of the defense of voluntary intoxication. The instruction commences specifically with the statement that if the jury believed from the evidence “beyond a reasonable doubt” that defendant voluntarily became intoxicated, the other consequences outlined in the instruction would become applicable. This is not a correct statement of the law. All that is required is that the jury find from the evidence that defendant became voluntarily intoxicated. It is not necessary that they find this to be true “beyond a reasonable doubt.” Such requirement greatly changes and limits the defendant’s defense of voluntary intoxication. Such instruction adds a new condition to the defense of voluntary intoxication which is not now required under Illinois law. All the jury is required to believe from the evidence is that defendant was voluntarily intoxicated— not that he was intoxicated beyond a reasonable doubt. It may very well have been that the jury in each instance where the phrase “voluntary intoxication” appears, could have believed that such intoxication must be established by defendant beyond a reasonable doubt. It would require a strained construction to see that such instruction would be favorable to the defendant where he contends his voluntary intoxication rendered him wholly incapable of forming an intent to escape.

We are mindful of the fact that the record discloses that defendant was apprehended miles away from the penitentiary where he was under lawful sentence, and that the record establishes his actual escape beyond a reasonable doubt. In the cause before us, however, defendant sought to establish a defense tending to show that his intoxication was such that he was incapable of forming an intent to escape. In view of the record it is clear that the instruction as given was erroneous and could have been misleading to the jury. There are other points which are raised by appellant which we need not discuss, in view of the determination of this cause.

This cause will, therefore, be reversed and remanded for a new trial to the Circuit Court of Will County.

Reversed and remanded.

STOUDER and SCHEINEMAN, JJ., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Floyd Mustread, Defendant-Appellant.
    Gen. No. 10,859.
    Fourth District.
    May 23, 1968.
    George K. Meuth, of Cuba, for appellant.
    Don P. Boggs, State’s Attorney of Mason County, of Havana, for appellee.
   SMITH, P. J.

The defendant was found guilty of forgery by a jury on a two-count indictment charging the making of a forged document in one count and the delivery of a forged document knowing it to be forged in the second. Motions in arrest of judgment and for new trial were denied. The defendant’s motion for admission to probation was allowed, but as a condition thereof, the court required that he serve the first 9 months of his probation period in the State Farm at Vandalia. Defendant appeals.

The defendant first contends that in an indictment for forgery, the instrument itself is the very soul of the charge, and that this is a soulless indictment for the simple reason that the timber contract alleged to be forged is neither set out in the indictment in haec verba nor is a true copy of it attached to the indictment nor is it alleged in the indictment that the instrument was not available to the Grand Jury. Thus, he argues the indictment is insufficient to support a conviction. Count I of the indictment charges that the defendant “did with intent to defraud Ned Rich, Jr., knowingly sign a document, namely ; a bill of sale of timber, apparently capable of defrauding the said Ned Rich, Jr., in such manner that it purported to have been made by another, namely; one Emil Sukarno, in violation of § 17-3, c 38, Ill Rev Stats (1965).” Count II is in substantially the same language except it charged in substance that the instrument was delivered knowing that it had been thus made. In People v. Nickols, 391 Ill 565, 63 NE2d 759, the court stated that it was not necessary that the indictment describe the instrument both by its purport and by its tenor, but that where it attempts to do so, the two descriptions must be consistent and it must appear from the face of the indictment that they refer to the same instrument. The instrument in Nickols would defraud nobody. In People v. Addison, 75 Ill App2d 358, 220 NE2d 511, we reiterated this statement in Nickols but held that when read together, the purport and the tenor were not inconsistent, but they referred to the same instrument and that the charges were sufficiently explicit for ready defense and to bar a second prosecution for the same offense.

Neither Nickols nor Addison is the answer to our problem here. Each had a purport clause and a tenor clause. In each, an accurate facsimile of the document itself was set out in the indictment. Here the bill of sale for timber appears in its precise form only in the evidence as the prosecution’s Exhibit A and objection to its admissibility was overruled. In People v. Tilden, 242 Ill 536, 90 NE 218, the forged instrument was set out in substance, but not literally. The court traced the history of the rule requiring that the instrument forged be set out with strict, verbal accuracy and noted that it was followed in England until changed by statute and in most jurisdictions in this country. Where such rule is not followed, the jurisdiction so holding has removed the requirement by statute. The court recognized that the rule requiring a literal copy was strict, but that it was based on reason. It points out that the court cannot know that a forgery has been committed without an examination and construction of the instrument alleged to be forged. No court, it stated, ought to undertake to construe a written instrument from a statement of its mere substance and without having before it the whole instrument in its exact language. The conviction of the defendant was reversed. Tilden appears to have been consistently followed. People v. Kimler, 324 Ill 445, 155 NE 299; People v. Brown, 397 Ill 92, 72 NE2d 859; and while the point is not decided in the case, the rule of Tilden and Brown is asserted in People v. Crouch, 29 Ill2d 485, 194 NE2d 248. Thus, it appears, the ticket for our destination in this case has been printed and given to us. We must use it. The indictment in the instant case is fatally defective for failure to set out the forged instrument either in haec verba or by a facsimile copy thereof attached. The judgment of conviction must be reversed and the defendant discharged. Judgment reversed.

Reversed.

TRAPP and CRAVEN, JJ., concur.


author: JUSTICE CRAVEN.

text:
    Cecil P. Olds, Joseph Cerar, Robert Goins, Lance Wright, and Lawrence Meiklejohn, Members of the Board of Trustees of the Police Pension Fund of the City of Springfield, Illinois, Plaintiffs-Appellees, v. Joseph DeMarco and Elijah Neale, Defendants-Appellants.
    Gen. No. 10,924.
    Fourth District.
    May 23, 1968.
    Rehearing denied June 17, 1968.
    Free and Free, and Lucas and Lucas, of Springfield, for appellants; Edward Coleman, of Springfield, for appellees.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


text:
    Thomas B. Harvey and Harriet H. Biggs, Plaintiffs-Appellants, v. Rolands of Bloomington, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 10,922.
    Fourth District.
    May 28, 1968.
    Rehearing denied June 24, 1968.

      Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Whedon Slater and William C. Wetzel, of counsel), for appellants.
    Campbell, Markowitz, Lawrence & Lenz, of Blooming-ton (William B. Lawrence, of counsel), for appellee.
   SMITH, P. J.

We are asked to construe the following:

“2. Tenant agrees in consideration of said extensions from Landlord, to pay an annual rental for said premises as follows:
“(a) Beginning September 1, 1960, to September 1, 1961, a minimum rental of $6,000.00 plus the cost of insurance and taxes.
“(b) Beginning September 1,1961, . . . a gross rental of % of 1% of tenant’s owned departmental sales . . . less the cost of insurance and taxes paid, OR $6,000.00 a year, plus the cost of insurance and taxes, whichever computation produces the greater amount . . . .”

Plaintiffs, the landlord, sued the tenant for arrearages covering four rental years. They lost and now appeal. We are only concerned with subparagraph (b), but (a)’s inclusion is apropos. For the (a) rental year tenant paid landlord the minimum rental of $6,000, and into the bargain the taxes and cost of insurance. The minimum rental was not $6,000 + the cost of insurance and taxes, rather it was $6,000 and also the tenant paid the taxes and insurance. As we shall see, it makes a difference whether “plus” is synonymous with “+” or with some such phrase as “and also,” “over and above,” “into the bargain,” “besides,” etc.

The dispute involves the interpretation to be given the phrase, “OR $6,000.00 a year, plus the cost of insurance and taxes, whichever computation produces the greater amount . . . .” The landlord reads this to mean that the first alternative (% of sales, less cost, etc.) is to be placed alongside $6,000 and the “greater amount” represents annual rent. They do not read it to mean that the first alternative should be compared with $6,000 + the cost of insurance and taxes. In reply, the tenant says that the “greater amount” is the larger of either % of sales less cost, etc., or $6,000 + cost, etc., and that when so determined, further computations are necessary as “the greater amount” does not equal annual rent. We have reduced their respective positions to the following formulae:

THE LANDLORD’S
% of sales less taxes and insurance paid by tenant = X
OR
$6,000
If X is greater than $6,000, X = annual rental
If X is less than $6,000, annual rental is $6,000, in addition, tenant pays taxes and cost of insurance
THE TENANT’S
% of sales less cost of insurance and taxes paid = X
OR
$6,000 + cost of insurance and taxes = Y
If X is greater than Y, subtract cost of insurance and taxes from X, remainder equals annual rental
If Y is greater than X, annual rent is $6,000, in addition tenant pays taxes and cost of insurance
For the first year in question (1961-1962) it worked like this:
Tenant’s Computation
% of sales $9,826.22
Less cost of insurance and taxes paid —2,126.29
Total (X) 7,699.93
OR
Annual Rental 6,000.00
Add cost of insurance and taxes +2,126.29
Total (Y) 8,126.29
Y being greater than X, annual rental is $6,000, in addition tenant pays cost of insurance and taxes.
Accordingly, tenant paid landlord $6,000 and also paid the cost of insurance and taxes. Landlord says rent was underpaid by $1,699.93 as follows:
Landlord’s Computation
% of sales $9,826.22
Less taxes and insurance paid by tenant —2,126.29
Total (X) 7,699.93
OR
$6,000
Since X is greater than $6,000, annual rent is $7,699.93.
Balance due is $1,699.93 ($7,699.93 — $6,000).

Likewise, for the next two years (1962-1964) tenant’s Y figure ($6,000 + etc.) was greater than their X figure (% of sales — etc.) and they paid landlord $6,000 and over and above that paid the insurance costs and taxes.

For the landlord, however, X (always the same for both parties) was greater than $6,000, leaving unpaid as rent the difference between $6,000 and X for these two years.

For the last year (1964-1965) X was “the greater amount” for both of them, i. e., X was more than Y (tenant’s) and X was more than $6,000 (landlord’s). Even so, they differ substantially as to the rental amount:

Tenant’s Computation
% of sales $10,647.28
Less cost of insurance and taxes paid —2,058.46
Total (X) 8,588.82
OR
Annual Rental 6,000
Add cost of insurance and taxes +2,058.46
Total (Y) 8,058.46
Since X is greater than Y, subtract $2,058.46 (taxes and insurance) from X and annual rent is $6,530.36, as follows:
$8,588.82
—2,058.46
Annual Rent 6,530.36
Landlord’s Computation
% of sales $10,647.28
Less cost of insurance and taxes
paid by tenant —2,058.46
Total (X) 8,588.82
OR
$6,000.00
Since X is greater than $6,000, annual rent is $8,588.82.

The differential is quite something. Tenant has paid $6,530.36 and contends it has done everything required. On the other hand, the landlord wants $2,058.46 more:

X Figure $8,588.82
Amount Paid —6,530.36
Unpaid 2,058.46

Who is right ?

As we know in construing contracts, a literal or strict construction must give way to the purposes intended. As was said in United States Trust Company v. Jones, 414 Ill 265, 111 NE2d 144, 147, “the terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent.” A strict construction which works a result different from that intended should not be adopted. Words can be enlarged or limited by the object or purpose because the real intention of the parties is what controls, not some particular word or phrase. Nor should we search out obscure possibilities in simple words or ascribe a particular meaning to a word that has more than one, if in doing so purpose is distorted. As best we are able, we should project ourselves into the position of those who uttered the words, such words being our sole criterion, assuming no ambiguity.

With these rules in mind, we are constrained to the view that the phrase, “the greater amount” is synonymous with annual rental, and that the word “plus” in the phrase “plus the cost of insurance and taxes,” means “in addition to,” “over and above,” “and also,” or “on top of.” It is used adjunctively and not as an invitation to engage in an exercise in addition. It is not synonymous with the plus sign — Text must be read in context, and “whichever computation produces the greater amount” is circumscribed by “tenant agrees ... to pay an annual rental for said premises as follows:” (b) is, after all, a s%& paragraph, and it is solely concerned with future rentals — “beginning September 1, 1961, . . .”— and the computations, such as they are, must directly relate to rent, not indirectly. To do otherwise is to wrench language from its moorings. Simply stated, the parties had in mind a minimum rental of $6,000, with an opportunity for the landlord to participate with the tenant if sales waxed fat, and if lean, then there was always the minimum. This is what percentage leases are all about— and this is a percentage lease. The landlord’s formula is in accord with the reason that brought percentage leases into use, the tenant’s however, produces a distortion— it does not produce “the greater amount” of rent. As Mr. Justice Oliver Wendell Holmes said, “We must think things, not words, or at least we must constantly translate our words to the facts for which they stand, if we are to keep to the real and the true.”

The tenant’s formula has an initial attraction — simply, which is greater X or Y. But they do not stop there. If X is “the greater amount,” they do not want to call it rent, instead, they want to deduct what they have already deducted, the cost of insurance and taxes. Clearly, no words or phrases support such tack. Furthermore, if we do not equate “the greater amount” with “annual rent for said premises,” the computations become ends in themselves. This possibility is so foreign to purpose and so obscure if words are to be given their natural meanings, that it must be rejected. “Falstaff’s babbling of green fields has sometimes led meticulous critics to untenable conclusions.” Evans v. Ockerhausen, 100 F2d 695, 702. The same may be said for adding taxes and cost of insurance to the minimum rent in determining their Y amount. There is some inexactitude in the use of the word “computation” because $6,000 standing alone is not a computation. Yet it, too, must be read in context, as after all, there is a computation in the landlord’s formuía — the determination of X, and its comparison with $6,000 involves a computation of sorts.

Accordingly, the order appealed from is reversed and remanded with directions to enter judgment for the plaintiffs and against the defendant for the appropriate amounts found to be due for the years in question in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

TRAPP and CRAVEN, JJ., concur.


author: HANNAH, J.

text:
    C. O. Wedeberg, Petitioner-Appellee, v. Department of Registration and Education of the State of Illinois, Respondent-Appellant, and Edgar T. Stephens, Complainant-Relator, Appellant.
    Gen. No. 10,941.
    Fourth District.
    May 23, 1968.
    Rehearing denied June 20, 1968.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (John J. O’Toole, Robert F. Nix, and A. Zola Groves, Assistant Attorneys General, of counsel), and Peterson, Lowry, Rail, Barber & Ross, of Chicago (John R. Porter, of counsel), for appellants.
    Casey and Casey, of Springfield, for appellee.
   HANNAH, J.

This is an action arising under the Administrative Review Act (Ill Rev Stats 1965, c 110, § 264 et seq.) to review the decision and order of the Director of the Department of Registration and Education of the State of Illinois, denying the petition of C. O. Wedeberg, a formerly licensed dentist, for the restoration of his license theretofore issued in 1920.

Pursuant to proceedings under chapter 91, section 62, relating to Medicine and Surgery, the license of plaintiff was revoked on January 9, 1961. The proceeding for revocation of license was instituted upon a petition of one Edgar T. Stephens, filed July 6, 1959. A hearing was had thereon, evidence received, and by order of the director the license was revoked. No review of that decision was requested. We must, therefore, accept the correctness of that order. Our concern rests solely with the denial of plaintiff’s petition for the restoration of his license.

On March 21, 1961, the plaintiff, pursuant to chapter 91, section 62e of the Statutes of Illinois, filed his petition for the restoration of his license, which was denied on October 3, 1961. From this order no further action was taken by the plaintiff. On March 1, 1965, plaintiff filed another application for the restoration of his license, pursuant to the statutory provisions and rules governing the same. It is to be observed that in his petition for restoration of his license the plaintiff did not join as a party defendant Edgar T. Stephens, who was the original complainant on petition for revocation of license. Complaint is made upon the part of the Department and Stephens as to the failure to join Stephens as a party defendant, it being contended he was a necessary party. This we will comment upon later. This petition, after hearing, was denied by the Department on July 22, 1965.

The plaintiff filed, in the Circuit Court, his petition for a review of the decision denying his petition. After a hearing the Circuit Court determined the plaintiff had been denied a fair hearing, and on April 6, 1966, reversed the administrative decision and remanded the cause for a new hearing.

Thereafter a new Special Dental Examining Committee was appointed to conduct a new hearing upon the petition for restoration, which board the plaintiff accepted with approval. That hearing was held on September 29,1966, and evidence heard upon behalf of all parties. This special committee made its report recommending to the Director of the Department of Registration and Education that the petition for Restoration of License be denied. This recommendation was approved by the Director, by written and signed approval endorsed upon the report itself on January 13, 1966. The formal order was entered on the 8th day of March, 1967.

Summons for administrative review was filed and notice served on February 2, 1967. Hearing was had before the Circuit Court on May 16, 1967.

The Special Examining Committee, which conducted the hearing, found, among other things, that the plaintiff:

1. Used false and misleading advertising, in violation of paragraph 7 of sections 70, 72 and 72b of the Illinois Dental Practice Act (c 91, par 62, Ill Rev Stats)
2. Engaged in dental practice subsequent to the revocation of his license;
3. Sought to obtain dental practice in violation ..of the Illinois Dental Practice Act;
4. Subsequent to the revocation of license was indicted for the unlawful practice of dentistry without a license to which charges he entered a plea of guilty, and was fined;
5. Subsequent to the revocation of his license was indicted for contempt of court in attempting to influence a prospective juror, to which he pleaded guilty and was sentenced to 30 days in jail.

The Circuit Court reversed the administrative decision of the Department of Registration and Education, and remanded the cause with instructions that the plaintiff be restored his license. In his order the Court made certain findings, among them being that:

1. The violations of the Dental Practice Act and the contempt of Court charges, to which plaintiff pleaded guilty were not offenses involving moral turpitude;
2. The plaintiff was professionally competent to practice dentistry;
3. The Plaintiff had practiced 40 years prior to his revocation, and was a man of good moral character;
4. Since November 1, 1961, he had fully complied with the revocation order of January 10, 1961.
5. The plaintiff had rehabilitated himself and was entitled to the restoration of his license, and that the continued denial of his license is contrary to the mainfest weight of the evidence.

This being a proceeding under the Administrative Review Act, this Court is, as was the Circuit Court, limited in the scope of its review by the provisions of the Act itself. Section 264, among other things provides:

“The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.”

This means, in the language of the Supreme Court in People ex rel. Stephens v. Collins, 35 Ill2d 499, 221 NE 2d 254:

“It is well settled that the Court will not interfere with the discretionary authority vested in administrative bodies unless such authority is exercised in an arbitrary or capricious manner, or the administrative order is against the manifest weight of the evidence.”

In Bruce v. Department of Registration and Education, 26 Ill2d 612, 622,187 NE2d 711, it is stated:

“The findings of an administrative review agency are deemed prima facie true and correct and the courts may not reweigh the evidence or make an independent determination of the facts. However, the findings of an administrative agency must be based upon substantial evidence and if they are against the manifest weight of the evidence, these findings may be set aside.”

Ours is not to reweigh and evaluate the evidence to see if we would reach the same conclusion as that reached by the Special Examining Committee and approved by the Director. We are limited to determining whether that conclusion was supported by substantial evidence, or was it contrary to the manifest weight of the evidence? There is little or no dispute as to facts. The evidence clearly establishes that the plaintiff had violated one or more of the rules and restrictions upon the practice of dentistry as defined in section 62 of chapter 91, Illinois Revised Statutes. It is admitted by the plaintiff that subsequent to the revocation of his license he engaged in a limited practice until about November, 1961, but thereafter did not so engage. He was convicted by plea of guilty to practicing without a license, and in connection therewith was also convicted of contempt of court for tampering with a prospective juror in connection with said charge prior to his plea.

We find no evidence of prejudice or bias upon the part of the Committee. While this Court is not called upon to review the sufficiency of the evidence to sustain the original revocation, we would observe that there was substantial evidence to justify the revocation. There is a striking similarity in the character of evidence here offered and that offered in the case of People ex rel. Stephens v. Collins, supra.

Our only concern here is whether, on the record, as presented upon the petition to restore the plaintiff’s license, the denial of that petition was contrary to the manifest weight of the evidence, or was it arbitrary and capricious? The record upon the original hearing for revocation is of vital important consideration in the present hearing.

In the light of the evidence on the original hearing for revocation, does the manifest weight of the evidence heard upon the petition for restoration of license clearly sustain the circuit court’s order of reversal? What additional evidence of the defendant’s conduct, subsequent to the revocation, has been adduced that indicates such rehabilitation as would justify the restoration of his license? The right to practice dentistry is a valuable right that is a property right within the due-process-of-law clause of the constitution. But it is also a highly skilled profession which affects the life and health of man. For that reason the legislature has, in its wisdom, seen fit to place certain regulations upon it in the interest of humanity. Accordingly, those who seek to follow this honorable profession must honorably comply with those regulations. This, it was determined by the Department when it revoked his license, the plaintiff did not do. Not only did he not do this, but it is admitted that after the entry of order of revocation on January 9, 1961, and after notice thereof to him, he openly defied the law by continuing in the practice of dentistry up and until about November, 1961. This he has admitted by his plea of guilty to the charge of practicing without a license. But of even greater gravity was his act of trying to influence a juror prior to his decision to plead guilty to the charges of practicing without license. Both of these acts occurred after the revocation of his license. They certainly indicated no penitence, reformation or rehabilitation. It is difficult to recommend for that honorable and responsible profession of dentistry one whose moral fibre is of that weak character that he would undermine the very foundation of our judicial structure by attempting to suborn a juror. What else do we have? He is 70 years of age, old enough to know and understand his obligation to society and the law. Two witnesses, R. E. Graeff and Louis L. Delano, testified in his behalf. Construing their testimony most favorably to the plaintiff, it is that they had known him a number of years, that he was regarded as a good dentist, and in their opinion bore a good character for integrity and as a law-abiding citizen. However, evidence of commission cannot be erased by mere opinion.

Based upon this record, was there substantial evidence to support the denial of his petition for restoration of his license? Was its denial due to prejudice or caprice? We see no evidence of the latter. We believe there was substantial evidence to support the denial of the petition, and that such denial was not contrary to the manifest weight of the evidence.

Some objection has been raised that Edgar T. Stephens, the original complainant, was not joined as a party defendant to petition for restoration of license. The original complaint was terminated by the order revocating the license. Its function was then fulfilled. The petition to restore the license is a separate action, its determination resting solely with the Department. We do not deem him a necessary party, and in the light of the determination here made no prejudice can result.

Some objection is made that the petition for review was filed prior to the entry of the formal order by the Director denying the prayer of the petition. The report and recommendation of the Special Examining Committee was approved in writing by the Director on the report itself on January 13,1967. The formal order merely confirmed that which the Director had ordered in effect by his approval. The formal order neither added nor detracted from the approval of January 13, 1967.

Accordingly, it is the order of this Court that the order of the Circuit Court be reversed and set aside, and that the cause be remanded to the Circuit Court of Sangamon County with direction to set aside and vacate its order and to enter an order affirming the findings and order of the Department of Registration and Education.

Reversed and remanded.

TRAPP and CRAVEN, JJ., concur.


author: PER CURIAM.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William E. Johnson, Defendant-Appellant.
    Gen. No. 66-57.
    Fifth District.
    May 27, 1968.

      Haig Apoian, of East St. Louis, for appellant.
    John M. Karnes, Jr., State’s Attorney, of Belleville, for appellee.
   PER CURIAM.

Defendant appealed from the judgment of the Circuit Court of St. Clair County entered upon his plea of guilty to the offense of Involuntary Manslaughter (c 38, § 9-3, Ill Rev Stats). This court reviewed the record without assistance of counsel and affirmed the judgment. Defendant appealed to the Supreme Court which vacated the judgment and remanded the cause to this court, with directions to appoint counsel and hear the appeal.

In compliance with the mandate of the Supreme Court, this court appointed counsel to represent the defendant. Counsel has filed a verified motion to withdraw wherein he states that upon a thorough review of the record and the authorities, he is convinced that there are no errors shown in the trial court proceedings which would warrant reversal of the judgment. Counsel has also filed a comprehensive memorandum in which he reviews the record, and cites and discusses the relevant authorities.

In compliance with Anders v. State of California, 386 US 738, 87 S Ct 1396, the clerk of this court furnished defendant a copy of the motion and memorandum, and advised him that he could raise any points which he chose to call to the attention of this court. Defendant has filed a letter in which are set forth several matters which he contends demonstrate that the judgment of guilty was erroneously entered, and he was improperly sentenced.

In our prior opinion we reviewed what is reflected by the record, and there is no necessity to repeat it here. We have again reviewed the record, and find nothing which leads us to depart from the conclusions previously reached.

The “points” raised by defendant, with two exceptions, represent an attempt to argue that the evidence does not support a finding that defendant was guilty of the offense charged. As previously stated, it is our opinion that the record reflects that defendant, after proper admonition, and fully cognizant of his rights, pleaded guilty to the charge as set forth in the indictment. A plea of guilty voluntarily and understandingly entered, admits every material fact alleged in the indictment and all elements of the crime with which the defendant is charged and obviates the need for any proof whatsoever. People v. Baxton, 10 Ill2d 295, 139 NE2d 754.

Defendant contends that the evidence adduced at the hearing on aggravation and mitigation does not support the sentence. This contention was reviewed in our prior opinion and requires no further discussion here.

The remaining contention must be construed to charge that defendant was not adequately represented and was induced to plead guilty by the misrepresentations of the Public Defender. Our review of this appeal is limited to what appears of record, People v. Jackson, 28 Ill2d 37, 39, 190 NE2d 823; People v. Rogers, 26 Ill2d 599, 603, 188 NE2d 22; and these charges do not find support in the record. Although the People v. Thomas, 38 Ill2d 321, 231 NE2d 436, holds that the question of whether an accused’s plea of guilty resulted from intimidation and misrepresentation by counsel, may be reviewed under the Post-Conviction Hearing Act, it does not enlarge the scope of review by this court to include matters dehors the record.

The motion to withdraw is allowed, and the court thanks appointed counsel for his services. In view of the conclusions reached the court does not appoint other counsel, and the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

       People v. Johnson, 74 Ill App2d 208, 219 NE2d 774.

       People v. Johnson, 38 Ill2d 348, 231 NE2d 396.