author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR GOMEZ, Defendant-Appellant.
    First District (5th Division)
    No. 80-1440
    Opinion filed June 11, 1982.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin and John Thomas Moran, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant was convicted in a bench trial of murder and attempted armed robbery and sentenced concurrently to 25 to 45 years on the former and 4 to 12 years on the latter. On appeal, he contends that (1) he was not proved guilty of the offenses beyond a reasonable doubt; (2) he was not informed of a State rebuttal witness to his alibi defense; and (3) the trial court erred in not granting immunity to a defense witness.

Rubin Mercado (Rubin), stepson of Manuel Darang, the murder victim, testified that on July 22, 1976, he was in his stepfather’s well-lighted grocery store and standing close to him when two men entered about 9 p.m.; that one of the men began looking at comic books near the cash register, about 1M feet in front of him (Rubin), while the other circled the interior of the store; that after some children left the store, defendant— whom Rubin identified in court as the man near the comic books — drew a gun and said, “Freeze, it’s a holdup”; that Darang told defendant “to take the money”; that he (Rubin) was facing defendant when those statements were made; that as Darang turned to touch Rubin, defendant fired two shots at him; that the other man, who was then coming toward Rubin behind the counter, caught Darang and placed him on the floor, and the two men then ran out of the store; that defendant was about 5 feet 10 inches tall and had an Afro haircut and a beard; that as he (Rubin) ran out to tell his mother what had happened, two girls came in; and that about a month later he identified defendant in a lineup.

On cross-examination, Rubin testified that at the time of the occurrence, defendant “had an Afro and a little beard”; that he did not tell a police officer shortly after the shooting that the only description he could give of the offenders was that they were Latin and the one with the gun had an Afro and was between 20 and 25 years of age; that at trial, defendant was heavier and had a fuller beard; that he remembered nothing about defendant’s clothing but thought he was tall for a Latin; that he was watching television when the men came in, looked up at them for about one second, and went back to watching television; that he looked up again when defendant drew a gun; that about five minutes elapsed from the time the men came in until defendant pulled the gun and another five minutes until the men ran out; that it was a matter of seconds after defendant said, “Freeze, it’s a holdup” until he fired the gun; and that while the men were in the store he had a clear view of defendant for approximately one minute.

Naomi Darang, Rubin’s mother, testified that she arrived shortly after the incident and found her husband dead; and that, when she had seen him earlier in the evening, he was wearing a pistol in a hip holster but the gun and holster were missing after the occurrence and never located.

Ivette Rodriguez (Ivette) testified that she had known defendant for 12 years; that on July 22, 1976, she was driving her mother’s car accompanied by her girl friend, Sonia Gonzalez (Sonia); that at 7:30 p.m., near Humboldt Park, which was approximately two blocks from the murder site, she saw defendant, blew her horn, and pulled over; that defendant crossed the street and talked with her and Sonia; that they decided to go to Chicago’s Old Town, and defendant got into the car; that on the night in question, from 7:30 to 10:30 when Sonia was taken home, defendant was not out of their sight except for a few minutes when he was inside a gas station; and that she (Ivette) and Victor were together constantly until 1 a.m., driving around Chicago.

Sonia Gonzalez gave substantially similar testimony about the events of the night in question.

Asserting that he was not in the grocery store at the time of the shooting and denying that he killed Darang, defendant testified that about 6 p.m. on the evening of July 22, he was with some friends in Humboldt Park; that at about 7:30 or 7:35, he left in a car with Ivette and Sonia; that they arrived at a gas station at about 8 p.m. and stayed for 15 minutes; that they then drove to Old Town and left at 9:45 or 10 p.m. to take Sonia home; that he was not in Darang’s grocery store between 8:30 and 10 p.m. and was not out of the sight of Ivette and Sonia from 7:30 to 10 p.m.; that about a month later he was in a lineup, wore a full goatee, and had tattoos on both arms; and that, on the night in question, both arms were uncovered. On cross-examination, defendant testified that he had been in the store at around 5 p.m. on the evening of July 22.

Officer Frank Musial testified in rebuttal that on July 23, 1976, he interviewed Ivette Rodriguez who told him that she first saw defendant at 9 p.m. on the night of the incident. On cross-examination, he testified that he had not made a report of the incident and that Ivette had told him that she, defendant, and another woman drove around Old Town on the night of July 22.

Opinion

Defendant first contends there was a failure to prove his guilt beyond a reasonable doubt. He maintains that the identification by Rubin Mercado, the sole occurrence witness, was vague and uncertain and was not convincing as to his guilt. We disagree.

The testimony of a single credible witness who had ample opportunity to make a positive identification is sufficient evidence to convict (People v. Williams (1981), 96 Ill. App. 3d 8,420 N.E.2d 710), even though such testimony is contradicted by the accused (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631). The credibility of identification witnesses and the weight accorded their testimony rests with the trier of fact (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847) and, in that capacity, consideration is given to such factors as the amount of time the witness had to observe the offender, the proximity to him, and the adequacy of the lighting (People v. Baker (1979), 78 Ill. App. 3d 411, 396 N.E.2d 1174). However, evidence of alibi cannot be disregarded if the only evidence contradicting it rests upon the identification of the accused as the man who committed the crime. (People v. Gardner (1966), 35 Ill. 2d 564, 571, 221 N.E.2d 232.) Only when the evidence is so improbable as to raise a reasonable doubt of guilt (People v. Tuell (1981), 97 Ill. App. 3d 849, 423 N.E.2d 954) or where a conviction “rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt” will it be reversed (People v. Gardner (1966), 35 Ill. 2d 564, 571, 221 N.E.2d 232, 236, quoting People v. McGee (1961), 21 Ill. 2d 440, 444, 173 N.E.2d 434, 436).

Within the framework of those general principles, we find significant the testimony of Rubin Mercado that on the night in question the store was well lighted as he viewed the shooting from a distance of about Bi feet. He also stated that he had a clear view of defendant and saw his entire face for about one minute, especially recalling defendant’s Afro hairstyle and beard, and that defendant was in the store for 5 or 10 minutes. Furthermore, Rubin selected defendant from a lineup approximately one month after the incident and identified him in court, pointing out that at trial defendant was heavier and his beard fuller than they had been on the night in question.

Defendant points to a discrepancy between Rubin’s purported description of defendant to the police and what the police actually reported. Rubin testified to telling the police that defendant had an Afro and a beard; but the police report, admitted by stipulation, contained the notation that Rubin could describe the assailants as being Latin and the man with the gun as having an Afro and being between 20 and 25 years old. In our view, however, the report simply omitted a detail from Rubin’s description and is not inconsistent. Moreover, it is well established that a police report which an identifying officer neither prepared nor signed does not constitute grounds for impeachment. (People v. Spain (1980), 91 Ill. App. 3d 900, 415 N.E.2d 456; People v. Currie (1980), 84 Ill. App. 3d 1056, 405 N.E.2d 1142.) Similarly, it can scarcely be said that Rubin should be held accountable for the contents of the police report, since he was 11 years old at the time in question and at trial denied telling the police officer that he could only describe the offenders as stated in the report. Rubin also testified that defendant wore a beard on the night in question; that he selected defendant in the lineup when he was wearing a goatee; and that defendant was 5 feet 10 inches and tall for a Latin. Officer David Wagner, the arresting officer, also testified that defendant was 5 feet 9 or 5 feet 10 and thinner than he was at trial.

Defendant also points out that Rubin could not recall anything about defendant’s clothing or which hand the gun was in, and he could not describe the other man. The law is clear, however, that precise accuracy in describing the accused is unnecessary if the identification is otherwise positive, since minor discrepancies affect only the weight given to testimony but not the credibility of the witness. (People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017.) Additionally, we note that the facts surrounding the identification here compare favorably to other cases in which the identification was held sufficient to convict. (See, e.g., People v. Brown (1959), 16 Ill. 2d 482, 158 N.E.2d 579 (unmasked assailants in well-lighted location, victim’s detailed description followed two weeks later by photo identification and two months later by lineup identification); People v. Baker (1979), 78 Ill. App. 3d 411, 396 N.E.2d 1174 (in well-lighted street, witness faced defendant for B£ to 2 minutes from 3 to 4 feet away and the next day identified him from photographs and lineup); People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847 (one-minute observation in well-lighted store from one foot away while accused pointed gun at witness); People v. Stepney (1977), 46 Ill. App. 3d 328, 360 N.E.2d 1206 (with shotgun pointed at him, witness observed accused under good lighting for 30 to 40 seconds from one foot away).) Finally, it is clear from the record that, along with all the other facts and circumstances of the case, the trial court fully considered the alibi testimony of defendant and the two witnesses on his behalf and found that testimony to be unworthy of belief.

We conclude that the evidence of defendant’s guilt did not rest upon an identification which was so doubtful, vague, and uncertain as to fail to produce an abiding conviction of guilt. The judgment does not, therefore, warrant reversal.

Defendant next contends that the State’s failure to inform defense counsel of an alibi defense rebuttal witness unfairly influenced his decision to present an alibi defense. He argues in essence that defense counsel complied with its obligation to disclose information to the State regarding his defense of alibi in accordance with Supreme Court Rule 413(d)(iii) (73 Ill. 2d R. 413(d)(iii)); consequently, defendant claims he was entitled to reciprocal compliance by the State with regard to disclosure of rebuttal witnesses under Supreme Court Rule 412(a) (73 Ill. 2d R. 412(a)). We note that the requirement of reciprocal discovery is mandated by Wardius v. Oregon (1973), 412 U.S. 470, 37 L. Ed. 2d 82, 93 S. Ct. 2208.

In this regard, the record indicates that shortly after trial began, defense counsel Fox gave the State two pages of handwritten notes, which he believed were made by former defense counsel Adam concerning interviews with Ivette Rodriguez and Sonia Gonzalez, whose names appeared on the notes. The two sheets were unsigned and undated, and defense counsel did not know when, where, or how the information therein was taken, but he characterized this submission as defendant’s “answer.” It further appears that Ivette subsequently testified contrary to the information contained in the notes. In particular, she testified on direct examination to picking up defendant at 7:30 p.m. on the night in question, but on cross-examination she admitted to telling attorney Adam that she picked up defendant at 9 p.m., and she further denied on cross-examination telling Officer Musial that she picked up defendant at 9 p.m. On redirect examination, Ivette testified that she told attorney Adam she first saw defendant “after 8 o’clock and it was somewhere between 8:00 and 9:00” and that during her conversation with Adam she changed the time to “9:30 that night, or ten.” In rebuttal, Musial testified that Ivette told him she picked up defendant at 9 p.m. Defendant thus maintains that the State’s failure to reveal Musial’s testimony beforehand crucially affected the decision to present the alibi defense.

We need not address the various points made by the parties in support of their positions, for it is manifest that the State’s nondisclosure of Officer Musial’s rebuttal testimony did not cause defendant unfair prejudice. Expanding upon defendant’s argument, had Musial’s proposed testimony been revealed to defendant before trial and had defendant as a consequence decided not to present the alibi defense, the testimony of Rubin Mercado, already found to be sufficiently strong to convict, would have been further strengthened by standing uncontradicted. Additionally, defendant does not assert that if he had known Musial would testify, Ivette’s testimony would not have been self-contradictory, for to say that Ivette would have testified differently would, in light of the record, be tantamount to asserting either that her testimony would not have been helpful to defendant or that it would have been false. In other words, the harm to defendant stems not from Musial’s testimony but from the contradictions in Ivette’s, and the trial court so found. Furthermore, we note that where the State fails to comply with a discovery request, it is nevertheless within the sound discretion of the trial court to admit testimony of unlisted witnesses, and the admission of such evidence does not constitute error absent a showing of prejudice and surprise. (People v. Mason (1978), 61 Ill. App. 3d 918, 378 N.E.2d 384; also see People v. Dees (1977), 46 Ill. App. 3d 1010, 361 N.E.2d 1126.) We conclude, therefore, that even if the State failed to disclose the substance of Musial’s testimony, there was no serious prejudice to defendant.

Finally, defendant contends that he was denied a fair trial by the trial court’s failure to grant immunity to a defense witness who purportedly told defendant and defense counsel that another man named Linguna, who was apparently deceased at the time of trial, had admitted to the witness that he (Linguna) and not defendant had shot Darang. We find no merit to this contention as presented.

There is no general sixth amendment right of defendants to demand that witnesses of their choice be granted immunity or that indictments against them be dismissed. (United States v. Herman (3d Cir. 1978), 589 F.2d 1191, cert. denied (1979), 441 U.S. 913, 60 L. Ed. 2d 386, 99 S. Ct. 2014; United States v. Wright (2d Cir. 1978), 588 F.2d 31, cert. denied (1979), 440 U.S. 917, 59 L. Ed. 2d 467, 99 S. Ct. 1236; United States v. Ramsey (7th Cir. 1974), 503 F.2d 524, cert. denied (1975), 420 U.S. 932,43 L. Ed. 2d 405, 95 S. Ct. 1136; also see In re Kilgo (4th Cir. 1973), 484 F.2d 1215, 1222.) Furthermore, it is the law in this State that courts have no inherent power to immunize witnesses in order to secure testimony which the defense deems relevant. People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029; People v. Frascella (1980), 81 Ill. App. 3d 794, 401 N.E.2d 1045.

Defendant’s reliance on Government of the Virgin Islands v. Smith (3d Cir. 1980), 615 F.2d 964, is misplaced. In that case, the court discussed two due process grounds upon which the immunized testimony of a defense witness may rest. The court stated in that regard:

“When the court finds prosecutorial misconduct by the government’s deliberate intent to disrupt the factfinding process, it should order the government to grant statutory immunity to the defense witness or face a judgment of acquittal. In addition, even if there is no evidence of such prosecutorial misconduct, when it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case and when the government has no strong interest in withholding use immunity, the court should grant judicial immunity to the witness in order to vindicate the defendant’s constitutional right to a fair trial.” (615 F.2d 964, 974; accord United States v. Herman (3d Cir. 1978), 589 F.2d 1191, cert. denied (1979), 441 U.S. 913,60 L. Ed. 2d 386, 99 S. Ct. 2014.)

In Smith, three defendants contended that their due process rights were violated by the failure to grant immunity to one Sanchez who had made a statement to the police which implicitly exculpated those defendants. At the time of the offense in question, Sanchez was less than 16 years old and was within the exclusive jurisdiction of the juvenile authorities, who offered to grant him use immunity on the condition, and for reasons of prosecutorial courtesy, that the United States Attorney consent. For no apparent reason, such consent was not granted, and the potentially exculpatory testimony was not presented to the jury.

The Third Circuit held, first of all, that the government’s refusal to consent revealed a “deliberate intention of distorting the judicial fact-finding process” which warranted the defendants in insisting that statutory immunity be granted their witness. In so holding, the court noted that such decision was part of the government’s strategy in prosecuting an “inherently weak” case; that the “refusal also furnished the predicate for the government’s objection to admitting Sanchez’ statement given to the police”; and that the United States Attorney had no jurisdiction to prosecute Sanchez. 615 F.2d 964, 969.

The Smith court also rested its decision upon its inherent power to grant judicial immunity, which may be granted if “the defendant is prevented from presenting exculpatory evidence which is crucial to his case” (615 F.2d 964,969), and the court formulated the test for granting judicial immunity as follows:

“[B]efore a court can grant immunity to a defense witness, it must be clear that an application has been made to the district court naming the proposed witness and specifying the particulars of the witness’ testimony. In addition, the witness must be available and the defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or if it is found to relate only to the credibility of the government’s witnesses. Once the court determines that the defendant has satisfied this threshold burden, the focus then shifts to consideration of the state’s countervailing interests, if any.” 615 F.2d 964, 972-73.

The record fails to disclose that the defense witness in the present case made a statement to the police, as did the witness in Smith. Thus, the State would be afforded no opportunity to verify the testimony to the same extent as was possible in Smith. Secondly, there is no indication here that the witness was under the exclusive jurisdiction of other authorities, so that the suggestion of deliberate distortion of the fact-finding process is unsupportable. Finally, since the evidence against defendant here was strong, it seems clear that the State’s resistance to the granting of immunity was wholly unrelated to a strategy to prosecute an “inherently weak” case. Thus, while the granting of Federal statutory immunity is not at issue here, the facts before us do not warrant defendant’s reliance on Smith.

Further, it is apparent in the present case that defendant’s argument as to what his witness would say if called to testify is speculative. Whether the witness would maintain the position which defense counsel asserted in its offer of proof, absent some form of independent verification such as a statement to the police, is a matter of conjecture and cannot, in our view, be the basis for a finding that defendant was denied a fair trial. (See United States v. Wright (2d Cir. 1978), 588 F.2d 31, cert. denied (1979), 440 U.S. 917,.59 L. Ed. 2d 467, 99 S. Ct. 1236; United States v. Carman (9th Cir. 1978), 577 F.2d 556.) Therefore, consideration of the State’s countervailing interests in this case would not justify the requested grant of immunity.

It is also noteworthy that the Third Circuit’s decision is not binding upon the courts of this State absent a pronouncement to that effect by the United States Supreme Court (People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431, cert. denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 93 S. Ct. 121), and that there is a conflict among the Federal circuits on this point (see, e.g., United States v. Wright (2d Cir. 1978), 588 F.2d 31, cert. denied (1979), 440 U.S. 917,59 L. Ed. 2d 467,99 S. Ct. 1236; United States v. Smith (7th Cir. 1976), 542 F.2d 711; United States v. Ramsey (7th Cir. 1974), 503 F.2d 524, cert. denied (1975), 420 U.S. 932,43 L. Ed. 2d 405, 95 S. Ct. 1136).

For the reasons stated, the convictions and the sentence are affirmed. Affirmed.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF SAMUEL J. JENKINS, Petitioner-Appellant, and BARBARA LEE JENKINS, Respondent-Appellee.
    Fifth District
    No. 81-145
    Opinion filed May 19, 1982.

      James M. Martin, Mark R. Bahn, and John Malee, all of Martin, Bahn and Cervantes, of St. Louis, Missouri, for appellant.
    M. Joseph Hill, of Mateyka, Hill, Hill and Armstrong, of Granite City, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Following the dissolution of the marriage of Samuel J. and Barbara Lee Jenkins, the court entered an order disposing of the couple’s property and awarding custody of the minor children to respondent. Samuel Jenkins appeals from the denial of his motion to vacate the court’s disposition order. On appeal, Jenkins charges that the trial court erred by awarding Barbara Jenkins: (1) certain property in lieu of long-term maintenance and (2) primary custody of the minor children. We affirm the trial court’s order.

In the order entered by the trial court, the judge decreed that Samuel Jenkins must pay $250 a month maintenance, for a period of six months, in order to give his former wife “an opportunity to seek a better paying employment, * * The court found that Mrs. Jenkins was entitled to this amount pursuant to section 504 of the Illinois Marriage and Dissolution of Marriage Act, because she was without sufficient income or marital property to provide for her own needs at that time. (Ill. Rev. Stat. 1979, ch. 40, par. 504.) It found further that petitioner was in a financial position to make these payments.

Section 504 states that a spouse without sufficient income or marital property is eligible for maintenance, “in such amounts and for such periods of time as the court deems just * * *, after consideration of all relevant factors * *

Having reviewed the record, we feel it was just and reasonable for the judge to provide respondent with a small temporary maintenance award for several months in order that her financial situation would improve. It is plain that the judge took into account the overall picture in coming to this decision. (See In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636.) Thus, we cannot say that he abused his discretion in directing Mr. Jenkins to pay the rehabilitative maintenance. See In re Marriage of Reed (1981), 100 Ill. App. 3d 873, 876.

The trial judge, after ordering Mr. Jenkins to pay $250 a month maintenance, then distributed the marital home and certain other items to Mrs. Jenkins “in lieu of long-term permanent maintenance.” Petitioner challenges the division of marital property on the basis that an award of maintenance may not be made in conjunction with an award of property in lieu of maintenance. He maintains that the two awards are inconsistent and violate the policy of the Marriage and Dissolution of Marriage Act. However, he has misinterpreted the spirit of the act, as well as the trial court’s intent. First, the new act “intended to enlarge greatly the discretion of courts in providing for just and equitable property settlements and maintenance awards.” (In re Marriage of Gan (1980), 83 Ill. App. 3d 265, 271.) The comments to section 503(c) (9) specifically address the scope of this discretion as it applies to awards of property in lieu of maintenance:

“This subsection is consistent with the purpose of the Act to make the division of property ‘the primary means of providing for the future financial needs of the spouses.’ [Citation.] Where the property is insufficient for this purpose, maintenance can be awarded. If, however, the property is sufficient the property distribution will be ‘in lieu of maintenance’, which thus precludes future claims to maintenance.” Ill. Ann. Stat., ch. 40, par. 503(c) (9), Historical and Practice Notes, at 472 (Smith-Hurd 1980).

We do not interpret that comment, nor do we interpret the comment to section 504(b) (that an award of property in lieu of maintenance under section 503(c)(9) bars maintenance), as necessarily excluding the type of award made in this case. (Ill. Ann. Stat., ch. 40, par. 504(b), Historical and Practice Notes, at 528 (Smith-Hurd 1980).) Both comments merely suggest that if a spouse is awarded property in lieu of maintenance, then that spouse will not be awarded permanent maintenance as well.

Here, however, respondent was awarded short-term, temporary maintenance along with property in lieu of long-term, permanent maintenance. This is logically consistent. The trial judge exercised sound discretion, making the division of property the primary means of allocating the future financial responsibility of Mr. Jenkins to his former wife. In disposing of the property in this manner, he acted entirely within the spirit and purpose of the act. We note, parenthetically, that the trial judge’s labeling the award “permanent maintenance” was apparently a misnomer because he set the term for six months. Such a minor defect does not impair the validity of the decree.

Mr. Jenkins also argues that it was an abuse of discretion to award “such a substantial block of property” to respondent when the court knew that she intended to remarry soon. It is his position that long-term periodic maintenance would have been more appropriate since, upon her remarriage, his obligation to make such payments would end. While this might be somewhat relevant to a judge's decision, other factors must necessarily figure into an award of property, e.g., the custodial provisions of the children, the earning potential of both parties, and the value of any nonmarital assets. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) Here the court weighed all relevant factors and disposed of the property fairly. We see no reason to disturb the ruling on review.

Petitioner’s second contention is that the trial court erred in awarding primary custody of the minor children to respondent in view of their preference to remain with their father. It is well settled that the court must determine custody based on the best interests of the child. (Ill. Rev. Stat, 1979, ch. 40, par. 602.) As this court remarked in Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 85, the child’s preference is significant when determining custody, particularly when it is “based upon reasons related to their welfare and best interests.” In spite of petitioner’s attempts to convince the court otherwise, however, we see no evidence that the children’s preference was based on reasons related to their welfare or best interests. Nothing in the record supports the contention that the children should fear for their safety. Thus, their preference properly became but one of many factors the judge considered in making the custody award. After considering these factors, he decided that the best interests of all three children would be served by separating the eldest son, Scott, from the younger children and placing the younger ones with their mother. We find ample evidence in the record to support this arrangement, and thus we affirm the trial judge’s decision.

Finally, petitioner argues that his motion to vacate constitutes a request for a change of custody pursuant to section 610 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610), and that, therefore, the court should have heard the additional evidence pertaining to custody which was offered by Mr. Jenkins. We hold that the trial judge was correct in refusing to admit further evidence. At the post-trial hearing, he afforded Mr. Jenkins and his children an opportunity to show that their emotional or physical health was in jeopardy, but as the court said, “What we have heard today is not drastic as to why the children are leaving or going anywhere. I don’t feel that any further testimony would have sufficed on a previous record.” Since the petitioner’s motion was not made pursuant to the dictates of section 610(b), and since no extreme emergencies have arisen, the court properly decided that it was not in a position to hear a motion for change of custody at that time.

Consequently, we affirm the judgment of the trial court on all matters raised by petitioner.

Affirmed.

KASSERMAN and JONES, JJ., concur.


author: JUSTICE WELCH

text:
    KENNETH S. HARTBARGER, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 81-373
    Opinion filed May 19, 1982.
    Rehearing denied June 14, 1982.
    J. Thomas Long and Christopher B. Hunter, both of Farrell, Heil, Long & St. Peters, P. C., of Godfrey, for appellant.
    Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwards-ville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On August 21,1979, Kenneth Hartbarger was injured in an automobile collision involving an uninsured motorist. On that date, he was covered by automobile insurance policy number A12A1067618, issued by Country Mutual Insurance Company. For bodily injury liability, the limits of the policy were $200,000 for each person and $500,000 per occurrence, with a limitation of $100,000 per occurrence for property damage liability. Policy A12A1067618 also indicated uninsured motorist coverage at a maximum of $100,000 for each person and $300,000 per occurrence.

Hartbarger was additionally covered by umbrella policy number U511011, also issued by Country Mutual. It provided for a $1,000,000 coverage limit and listed the above-mentioned automobile policy among the underlying insurance policies to which the umbrella coverage would attach.

In February 1981, Hartbarger filed a complaint for a declaratory judgment against Country Mutual in the circuit court of Madison County. In count II of that complaint, he alleged that he had been injured in an amount greater than that provided for in the uninsured motorist coverage of policy A12A1067618, and that since the umbrella policy included that automobile policy without specifically excluding uninsured motorist coverage, he was therefore entitled to compensation under the umbrella policy. The plaintiff later amended this count of the complaint to include the allegation that an agent for Country Mutual had informed him that the umbrella policy provided coverage for the “entire” automobile policy. Plaintiff’s affidavit to that effect was attached to the amended count II.

Country Mutual moved for a summary judgment on the plaintiff’s complaint. Under count II, it was argued that the umbrella policy, by its terms, provided only liability insurance, not uninsured motorist protection, and that the plaintiff was entitled to compensation only according to the terms of the uninsured motorist clauses of policy A12A1067618. After hearing arguments from counsel, the court held that the umbrella policy was unambiguous in providing only for liability coverage, and therefore judgment was entered for Country Mutual on count II, as it was on the rest of the complaint. The plaintiff has perfected this appeal only from the judgment against him on count II.

In this court, the plaintiff argues, as he did at trial, that the umbrella policy was ambiguous as to whether it provided uninsured motorist coverage, and that therefore he should have been permitted to introduce extrinsic evidence to resolve that ambiguity. The parties have not cited any Illinois authority on the issue of when an umbrella policy will be construed as including uninsured motorist coverage. According to our research, they are correct in characterizing this question as one of first impression in this State.

However, the plaintiff’s argument was raised in Matarasso v. Continental Casualty Co. (1981), 82 App. Div. 2d 861,440 N.Y.S.2d 40 (mem. op.). The plaintiffs in Matarasso, as here, were covered by an umbrella liability policy which listed an automobile insurance policy as part of the underlying coverage. The declarations contained in the umbrella policy did not include uninsured motorist coverage. When the plaintiffs were injured in an accident involving an uninsured motorist, they recovered the maximum amount under the uninsured motorist portion of the automobile policy. They then sought recovery under the umbrella policy. In rejecting the plaintiffs’ claims, the court premised its decision on the plain language of the umbrella policy, and noted that it incorporated the underlying policies only insofar as they provided protection against liability for damages to third parties. A different interpretation, the court stated, would distort the purpose of the umbrella policy.

The plaintiff points to two features of the umbrella policy in this case which, it is claimed, render it ambiguous. First, he notes that uninsured motorist coverage was not specifically listed in the exclusions to the umbrella policy. Second, it is argued that since the defendant, in that policy, agreed “to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay,” he should be reimbursed for his own medical expenses, which he was legally obligated to pay.

In response, the defendants urge us to recall that the umbrella policy was entitled a “personal and professional umbrella liability policy,” and that on the declarations sheet, policy A12A1067618 was described as an “automobile liability policy” and in the column for that policy’s limits of liability, the figures “200/500/100” were placed. They also state that the definition of coverage, quoted in part in the previous paragraph, provides in full as follows:

“The company agrees to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay:
(a) Personal Liability. As damages because of personal injury or property damage caused by or arising out of an occurrence happening anywhere in the world during the policy period;
(b) Professional Liability. As damages because of injury arising out of:
(1) malpractice, error or mistake of the named insured, or of a person whose acts or omissions the named insured is legally responsible in rendering or failing to render professional services; or;
(2) acts or omissions of the named insured as a member of a formal accreditation or similar professional board or committee of a hospital or professional society; committed during the policy period in the practice of the named insured’s profession as stated in Item 5 of the declarations.”

The plain wording of the entire policy, the defendant contends, compels the conclusion that it provides only excess liability coverage and not uninsured motorist protection.

The Illinois Supreme Court has recently stated:

“Generally speaking, if a provision of an insurance contract can reasonably be said to be ambiguous it will be construed in favor of the insured and against the insurer, who was the drafter of the instrument. [Citations.] However, if the provisions of the insurance policy are clear and unambiguous there is no need for construction and the provisions will be applied as written. [Citations.] All the provisions of the insurance contract, rather than an isolated part, should be read together to interpret it and to determine whether an ambiguity exists. [Citations.]” (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4-5, 429 N.E.2d 1203, 1205.)

According to these tenets of interpretation, we believe that the result reached in Matarasso should also obtain in this case. An umbrella liability policy is generally designed to protect the insured from a judgment against him in an amount greater than that provided for in the underlying policies (Trinity Universal Insurance Co. v. Metzger (Ala. 1978), 360 So. 2d 960, 962), and the language of the present policy directly accomplishes that purpose. The insurer is bound to indemnify the insured for sums he is obligated to pay as damages, and need not reimburse him for items which he is legally obligated to pay, but not as damages. Moreover, the failure of the insurer to list uninsured motorist coverage in the exclusions to the umbrella policy does not create any ambiguity in view of the numerous terms limiting the umbrella policy to excess liability coverage. As the defendant correctly argues, exclusions are relevant in construing an insurance policy only when the policy provides coverage in the first place. (Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 294 N.E.2d 7.) The umbrella policy did not provide uninsured motorist protection, and thus there was no need to exclude it.

Finally, the plaintiff argues that the umbrella policy is an automobile policy, which, under section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a), must furnish uninsured motorist coverage. That statute provides, in part, that

” * no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State * * * unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of the Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles * °

In construing a similar statute, the Alabama Supreme Court held that an umbrella policy which provided excess liability coverage, and which was issued as a supplemental policy to cover existing primary policies which themselves complied with the uninsured motorist law, was not required to provide uninsured motorist coverage. (Trinity Universal Insurance Co. v. Metzger (Ala. 1978), 360 So. 2d 960.) The court reasoned:

“Automobile liability policies and motor vehicle liability policies insure against the risk of loss through the operation of specific automobiles. An umbrella policy, on the other hand, is fundamentally excess insurance designed to protect against a catastrophic loss. Before an umbrella policy is issued, a primary policy (the ‘underlying policy’) must be in existence and this primary policy must by law provide uninsured motorist coverage. The umbrella policy assumes a risk of much less frequent occurrence, i.e. the risk of judgments in excess of primary policy limits, and accordingly carries premiums which reflect the lesser magnitude of this risk. The umbrella policy issued by Trinity Universal is an inherently different type of insurance from an automobile or motor vehicle liability policy, and consequently does not come within the scope of the uninsured motorist statute.” (360 So. 2d 960, 962.)

The Matarasso court reached the same result under the New York Insurance Law, and commented that the insureds had received the protection of the mandatory uninsured motorist coverage statute through their primary automobile liability policy and were thus not left without the relief anticipated by that law. Matarasso v. Continental Casualty Co. (1981), 82 App. Div. 2d 861, 440 N.Y.S.2d 40 (mem. op.); accord, O’Hanlon v. Hartford Accident & Indemnity Co. (3d Cir. 1981), 639 F.2d 1019,1026-27 (applying Delaware law).

In other jurisdictions, it has been stated that an umbrella policy is required to include uninsured motorist protection under the uninsured motorist insurance statutes of those States. (Aetna Casualty & Surety Co. v. Green (Fla. App. 1976), 327 So. 2d 65; St Paul Fire & Marine Insurance Co. v. Goza (1976), 137 Ga. App. 581, 224 S.E.2d 429 (dicta).) We are not persuaded by the reasoning employed in those decisions.

The purpose of the Illinois uninsured motorist insurance statute, as it existed when the policies at bar were entered into, was to compensate the insured to at least the same extent as he would have been had he been injured by a motorist who had complied with the Financial Responsibility Law. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.) Thus, an insured receives the full protection contemplated by statute when he purchases the underlying automobile policy, and whatever additional coverage he does or does not obtain in an umbrella policy is a matter without the scope of that law.

As the Alabama Supreme Court noted in Metzger, an umbrella liability policy is entirely different from an automobile policy. It is obvious that the present umbrella policy was intended by both parties to protect the insured against excess judgments, and the risks and premiums were calculated accordingly. To require that policy to furnish uninsured motorist coverage would work a substantial revision of that policy. Section 143a of the Insurance Code was enacted to insure a minimum amount of uninsured motorist protection. It does not give us the authority to rewrite the unambiguous provisions of the umbrella policy in order to expand the maximum coverage afforded to the plaintiff, and we will not do so.

We agree with the defendant that neither the language of the umbrella policy nor section 143a of the Illinois Insurance Code gives rise to uninsured motorist coverage in that policy. It is for these reasons that we affirm the judgment of the Circuit Court of Madison County in granting summary judgment for the defendant on count II of the plaintiff’s complaint.

Affirmed.

KAHNS, P. J., and JONES, J., concur.


author: JUSTICE JONES

text:
    ANTHONY FORYS et al., Plaintiffs-Appellants, v. LAWRENCE BARTNICKI, Indiv. and as Ex’r of the Last Will of Eva Filipski, Deceased, Defendant-Appellant.—(BENEDICT RYTERSKI et al., Defendants-Appellees.)
    Fifth District
    No. 81-580
    Opinion filed May 26, 1982.

      John J. Kurowski, of Gomric and Kurowski, P. C., of Belleville, for appellant Anthony Forys.
    Carl Kohnen and Richard Wier, both of Florissant, Missouri, for appellant Leo Lazarz.
    Clarence DeMoss, of Hohlt, House, DeMoss & Johnson, of Nashville, for appellant Lawrence Bartnicki.
    Stephen C. Busser, of Columbia, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

This appeal stems from a will contest proceeding brought by two of decedent Eva Filipski’s heirs to challenge the validity of her will. After the jury had returned its verdict invalidating the will and judgment had been entered thereon, but while a post-trial motion was pending, plaintiffs filed a motion to dismiss the proceeding, alleging that plaintiffs’ suit to set aside the will had been settled. Dismissal had been stipulated to by the defendant who, as executor and beneficiary under the will, had actually litigated the case but not by the noncontesting heirs who had been joined as parties-defendants pursuant to statute. Following a hearing the trial court denied plaintiffs’ motion, finding that the decedent’s heirs who had not joined as plaintiffs in the will contest suit had acquired an interest in her estate by virtue of the judgment setting aside the will. The court held that the judgment precluded plaintiffs from dismissing the cause without the consent of the nonplaintiff heirs.

We granted leave to appeal from this interlocutory order pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308). The question before us, as certified by the trial judge, is “whether the non-contesting heirs to the will contest have any interest after the jury verdict, but while a post-trial motion is pending, in the disposition of a proposed stipulated settlement between the contesting heirs and the [litigating defendant], where said non-contesting heirs failed to file a will contest within the statutory period.” We find that the noncontesting heirs have no interest in the disposition of the proposed settlement and, accordingly, reverse the trial court’s order denying plaintiffs’ motion to dismiss the will contest suit.

Eva Filipski died testate on May 23,1979. Her purported will named her nephew, Lawrence Bartnicki, as executor and sole beneficiary. At the time of her death Eva Filipski had two surviving sistors, Mary Forys and Theresa Frost. She was predeceased by a brother, Alec Bartnicki, who left one son, Lawrence Bartnicki, the beneficiary of the will, and three daughters. Another sister, Sophia Ryterski, had predeceased her leaving a son, Benedict Ryterski, and two daughters, Pauline Stanczyk and Margie Hankins.

On June 26, 1979, the decedent’s will was admitted to probate in Washington County. On August 9, 1979, Mary Forys filed a petition to contest the will and, on August 15,1979, Theresa Frost also commenced a separate will contest action. The cases were consolidated on motion of the court. None of the remaining Bartnicki or Ryterski heirs filed a will contest action within the six-month statutory period. These heirs were named as par ties-defendants in both will contest proceedings as required by statute (see Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1(a)), and each was served with summons. Other than Lawrence Bartnicki, who filed an answer to both pleadings individually and as executor of the will, the noncontesting heirs did not appear or file responsive pleadings.

Following a six-day trial in April 1981, the jury returned its verdict in favor of the plaintiffs, finding that the document in question was not the valid last will and testament of Eva Filipski, and the court entered judgment on the verdict. Post-trial motions were filed by defendant Lawrence Bartnicki. While these motions were pending, the litigants orally informed the court that a settlement had been reached with regard to the claims of the respective plaintiffs and defendant Lawrence Bartnicki in the will contest case. The court requested that notice be given to the Ryterski heirs, and a hearing was scheduled for August 7, 1981.

The Ryterski heirs appeared with counsel on that date, and the court heard arguments on the issue of whether the cause could be settled to the exclusion of the noncontesting heirs. On September 3, 1981, plaintiffs filed their written motion to dismiss with attached affidavits. The court entered an order denying plaintiffs’ motion on October 2,1979, in which it found that the Ryterski heirs and the remaining Bartnicki heirs had lost their right to contest the will upon the expiration of the statutory period for filing a contest but that they had acquired an interest in the estate of Eva Filipski by virtue of the verdict and judgment setting aside the will. The court found that dismissal as requested by plaintiffs would prejudice the interest of the noncontesting heirs as the proposed settlement agreement made no provision for these heirs. The court further found that no stipulation for dismissal had been filed by the noncontesting heirs and that plaintiffs did not have an absolute right to dismiss the cause under section 52(1) of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 52(1).) The court thereafter certified its ruling under Supreme Court Rule 308, and this court granted the joint application of plaintiffs and defendant Lawrence Bartnicki to appeal from that order.

The issue framed by the trial court for our consideration appears to be one of first impression insofar as it concerns the rights and interests of noncontesting heirs as parties-defendant to a will contest proceeding.

The right to institute a will contest action is provided by statute (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1). In an imperfectly analogous situation, it has been held that one who fails to assert his own claim within the statutory period forfeits his right to participate as plaintiff in a suit instituted by another, even though the original plaintiff seeks to dismiss his action after the statutory period for filing a contest has elapsed. (McCreery v. Bartholf (1922), 305 Ill. 325, 137 N.E. 242; Shriners Hospital for Crippled Children v. First National Bank (1981), 101 Ill. App. 3d 626, 428 N.E.2d 751.) In the instant case, however, the noncontesting heirs assert no right to begin a new will contest action or to continue the action as plaintiffs. Rather, they contend that they have the legal right as parties-defendants to the proceeding to refuse to consent to dismissal of the action by the plaintiffs. Their claim is premised upon the voluntary dismissal provision of the Civil Practice Act, which requires a stipulation by the defendant when dismissal is sought after trial or hearing begins. (See Ill. Rev. Stat. 1979, ch. 110, par. 52(1).) Our analysis of the statute and the substantive law of will contests leads us to conclude, however, that this procedural rule should not be invoked to preclude dismissal by plaintiffs in the case at bar.

The statute governing will contests requires the joinder of all heirs of the decedent as parties to the proceeding (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1(a)) and thus makes them necessary parties whose presence is required to enable the court to make a complete decree binding on all who may be interested in the subject matter of the litigation. (6 James, Illinois Probate Law & Practice sec. 1603, at 581 (1952); Krunfus v. Winkelhake (1963), 44 Ill. App. 2d 124, 194 N.E.2d 24; McCreery.) The statute, however, makes no distinction as to the place of the necessary parties in the litigation, and such heirs are made defendants only because they choose not to join as plaintiffs in the suit. If one of two heirs successfully contests a will by a suit in which he names the other as defendant, they will share in the benefits as if both had been plaintiffs. The noncontestant’s actual alignment of interest, then, is with the plaintiff, and such nonplaintiff parties could be more properly characterized as “neutrals” or as nominal defendants. (See Shriners Hospital.) This characterization is further borne out by the fact that these defendants are not required to actually defend the will, as this is the duty of the executor (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 1(e)), and the further fact they are not subject to default for failure to appear or file a responsive pleading. See Merrick v. Continental Illinois National Bank & Trust Co. (1973), 10 Ill. App. 3d 104, 293 N.E.2d 767.

The substantive law of will contests likewise treats noncontesting heirs as neutral parties whose interests are contingent on the plaintiff’s actions in litigating the suit. Those contesting the will as plaintiffs have the right to control the cause even though dismissal of their action may adversely affect the interests of noncontesting heirs. (McCreery, Shriners Hospital.) In an early decision relied upon by the McCreery court, In re Will of Storey (1887), 120 Ill. 244, 11 N.E. 209, the supreme court discussed this principle in the context of two separate appeals taken from an order denying probate of a will. One of the contestants, Mrs. Storey, dismissed her de novo appeal to the circuit court prior to trial but thereafter appeared in the cause and, over the objection of the remaining appellant, Mrs. Farr and, conducted the de novo trial as executrix of the will. As the trial was drawing to a close and after the evidence had been taken, Mrs. Farr and moved to dismiss her appeal, and the trial court denied her motion. The supreme court reversed, holding that the dismissal should have been granted and that it was error to allow Mrs. Storey to assume control of the other’s appeal after she had dismissed her own appeal. The supreme court stated that it would be unjust to take from a party, “through whose affirmative action, and upon whose sole pecuniary responsibility, an appeal had been perfected, all control of such appeal # 6 ”, and give it to one who had voluntarily dismissed herself as an appellant in the same matter.” (120 Ill. 244, 257, 11 N.E. 209, 216.) To the argument that Mrs. Farrand ought not to have been permitted to withdraw her appeal after Mrs. Storey had appeared and produced evidence establishing the will, as this would forever defeat the probate of the will, the court responded:

“If such would be the legal [consequence], it does not lie in the mouth of Mrs. Storey to complain. The law gave her the undoubted right to appeal from the decision and judgment of the probate court denying probate of this will, in the probate of which she had obviously so large a pecuniary interest, and this right she understood and exercised; and the same law gave her the undoubted right to dismiss her appeal, and thereby, so far as she was concerned, leave in full force the judgment of the probate court, and this right she also understood and exercised; and if it be true that by dismissing her appeal she has put it in the power of Mrs. Farr and to exercise the same right under the law of dismissing her appeal, although the consequences stated may follow, we are unable to perceive upon what principle this court, whose only province it is to declare the law, can be asked to declare one rule for Mrs. Storey and another for Mrs. Farr and, in the same cause and in respect of the same subject matter." 120 Ill. 244, 259-60, 11 N.E. 209, 217.

In McCreery v. Bartholf, the court applied the Storey rule to hold that one contesting a will had the right to dismiss his petition even though the statutory period for filing a contest had elapsed and, as a consequence, another heir, who had been joined as a defendant to the proceeding but who had not filed his own contest, was precluded from continuing the cause on his own behalf. The court stated that the noncontesting heir had forfeited his equal right to contest the will by failing to institute his own action and that he could not complain because the contesting party had done what he himself had a right to do.

Finally, in a recent decision by this court, Shriners Hospital for Crippled Children v. First National Bank, we relied upon the McCreery decision in refusing to allow a noncontesting party named as a defendant to the action to realign itself as a contestant of the will after the period for filing a contest had elapsed. “Such a realignment," we noted, “would have the effect of allowing one party to take advantage of another party’s timely actions, even though each party originally had its own cause of action to contest the will and one party chose not to do so within the required time.” 101 Ill. App. 3d 626, 629, 428 N.E.2d 751, 754.

Applying the substantive teaching of these decisions to the case at bar, we see that the Ryterski heirs, by failing to assert their own right to contest the will, have forfeited the right to control the cause instituted by the plaintiffs. Upon probate of the decedent’s will the plaintiffs and the Ryterski heirs each had an equal right to contest the will. While plaintiffs acted upon their rights by instituting their respective will contest actions, the Ryterski heirs chose not to do so and now have no suit of their own because of the expiration of the statutory period for filing. (McCreery, Shriners Hospital.) They seek, however, to prevent dismissal of the plaintiffs’ action after plaintiffs have settled and compromised their lawsuit. The effect of the Ryterski heirs’ position, and of the trial court’s order, is that plaintiffs would be compelled to continue litigating for the benefit of the noncontesting heirs and possibly to their own detriment. We find this to be untenable in light of the plaintiffs’ substantive right to control their own will contest actions and the corresponding waiver of this right by those not contesting the will. As the Ryterski heirs no longer have the right to continue and control the cause as plaintiffs, they may not accomplish indirectly what they are precluded from doing directly.

Although the Ryterski heirs contend that section 52(1) of the Civil Practice Act gives them the right, as defendants, to bar dismissal by the plaintiffs, this provision is inapplicable to require consent for dismissal by the noncontesting heirs in this case. As noted above, such heirs are only nominal defendants whose interests are aligned with the plaintiffs’ but who are named as defendants when they fail to assert their own right to contest the will. The purpose behind section 52(1) is to prevent voluntary dismissal of an action where it would be unfair or unjust to the defendant. (Juen v. Juen (1973), 12 Ill. App. 3d 284, 297 N.E.2d 633.) Once trial begins and the defendant appears to defend his interest, he is entitled to a decree based upon the evidence, and dismissal without his consent would be unjust. (See Central Ice Cream Co. v. Goldenrod Ice Cream Co. (1958), 18 Ill. App. 2d 7, 151 N.E.2d 466.) In the instant case, however, the noncontesting heirs took no part in the case and indeed had no interest as defendants in upholding the will. Thus, the rationale of section 52(1) does not apply in this situation, and the Ryterski heirs, who are essentially neutral parties to the proceeding, cannot be said to have acquired any rights under section 52(1) when they were named as defendants to the action.

In light of this holding, we find that plaintiffs complied with the requirements of section 52(1) when they obtained the consent of Lawrence Bartnicki, the actual litigating defendant, to dismissal of their action. It is the rule in Illinois that a court must give effect to a settlement agreement which has been properly entered into and which will not prejudice the rights of the parties to the action. (Miller v. Miller (1928), 332 Ill. 177, 163 N.E.2d 343; Turnbull v. Porter (1964), 55 Ill. App. 2d 374, 206 N.E.2d 97; see 27 C.J.S. Dismissal ½ Nonsuit secs. 9, 11 (1959).) The trial court in the case at bar denied dismissal by the plaintiffs because it found that the noncontesting heirs had acquired an interest in the decedent’s estate which would be prejudiced by dismissal pursuant to a settlement agreement that made no provision for them. This interest, however, is purely fortuitous and is contingent upon plaintiffs prosecuting the case to final judgment and prevailing upon appeal. Since the noncontesting heirs have no right or interest in the judgment at this point, they would not be prejudiced by dismissal as requested by the plaintiffs.

In arguing that they have the right to share in the pecuniary benefits of the jury verdict, the Ryterski heirs treat the case as though it were concluded and the interests fixed. To the contrary, at the time plaintiffs moved for dismissal, defendant Lawrence Bartnicki had filed a lengthy post-trial motion as well as an ancillary motion to examine the jury. Plaintiffs, who conducted the litigation and knew the evidence and the law of the case, were able to assess their chances of prevailing upon these motions as well as upon a prospective appeal and retrial if such should occur. While the contesting heirs have the right as plaintiffs to compromise their suit rather than continue litigating to their possible detriment, the noncontesting heirs at this point have no vested interest, no right of property, and no stance as contestants of the will. Dismissal of the action will thus deprive them only of a possible future interest in decedent’s estate — an interest which is not entitled to protection by the court.

Because in a will contest situation any interested party has the right to bring his own action to contest the will, those who institute such an action sue in their own individual capacity rather than as representatives of a class. Plaintiffs, by filing a will contest, did not become obligated to assert the interests of those heirs who chose not to assert them on their own. Thus, this situation is unlike that of a class action where the members of the class acquire an interest upon entry of a judgment which is entitled to protection by the court. (See Winger v. Chicago City Bank & Trust Co. (1946), 392 Ill. 624, 65 N.E.2d 688.) The Ryterski heirs chose not to litigate and, at the end of the statutory period for filing a contest, they lost their right to contest the will. The proposed settlement agreement leaves them in no worse position than they were in as a result of their choice not to contest the will. Therefore, as the noncontesting heirs will suffer no prejudice by dismissal under the terms of the agreed settlement, the court should properly have dismissed the action as requested by the plaintiffs. We accordingly reverse and remand with directions to the trial court to grant plaintiffs’ motion to dismiss the action.

Reversed and remanded.

KARNS, P. J., and WELCH, J., concur.


author: JUSTICE KASSERMAN

text:
    RUTH LOUISE NICHOLAS, Indiv. and as Adm’x of the Estate of Demos Nicholas, Deceased, Plaintiff-Appellant, v. THE CITY OF ALTON et al., Defendants-Appellees.
    Fifth District
    No. 81-258
    Opinion filed June 4, 1982.
    Lakin, Herndon & Peel, P. C., of East Alton, for appellant.
    Gordon R. Broom, of Burroughs, Simpson, Wilson, Hepler, Broom & McCarthy, of Edwardsville, for appellee City of Alton.
    John D. Bauman, of Wagner, Bertrand, Bauman & Schmeider, of Belleville, for appellee Federal Laboratories, Inc.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Ruth Louise Nicholas, administratrix of the estate of Demos Nicholas, deceased, appeals from a summary judgment entered in favor of defendants, the city of Alton, Illinois, and Federal Laboratories, Inc. The basis of the plaintiff’s claim was that the decedent, a deputy sheriff of Madison County, died on September 13,1972, as a result of inhaling toxic fumes on or about July 21, 1972, during a civil disturbance in Alton, Illinois. It was alleged that such toxic fumes came from tear gas grenades which were thrown by members of the Alton police department in the area of the Alby Street entrance to the Alton police station where the decedent was standing.

The complaint in this cause, originally filed on July 18, 1973, was subsequently dismissed for want of prosecution but filed a second time in a consolidated action on May 11, 1977. The defendants filed various motions to dismiss the complaint, all of which were denied by the trial court, and the cause proceeded to the discovery stage.

On September 27,1978, the city of Alton filed a motion for summary judgment on the ground that the claimed exposure to the tear gas was not the proximate cause of the decedent’s death. In support of this motion, the city of Alton submitted portions of the depositions of Dr. Thomas Martin and Dr. Martin W. Davis. The former noted the decedent’s history of heart disease and diabetes and was of the opinion that the decedent died as a result of congestive heart failure which was unrelated to the inhalation of tear gas. The latter rendered a similar opinion based upon a hypothetical question. On October 2, 1978, Federal Laboratories, Inc., also filed a motion for summary judgment. On December 1, 1978, the trial court entered an order granting the defendants’ motions for summary judgment.

On December 27,1980, plaintiff filed a motion to reconsider and set aside the order granting summary judgment which was supported by the affidavit of plaintiff’s attorney. The affidavit stated that Dr. Charles D. Proctor, a toxicologist, had been consulted and that Dr. Proctor would submit an affidavit indicating that exposure to tear gas in a relatively enclosed area without adequate ventilation could have caused the decedent’s death. On February 9, 1979, the trial court granted plaintiff’s motion and set aside the order granting summary judgment. The trial court further ordered that plaintiff produce Dr. Proctor for deposition within a reasonable time.

On July 23,1979, the discovery deposition of Dr. Proctor was taken. Dr. Proctor stated that he had earned a Ph.D. in pharmacology and toxicology. He related that he was a professor and chairman of the Department of Pharmacology at Meharry Medical College in Nashville, Tennessee, where he teaches and conducts research in the fields of pharmacology and toxicology. He further testified that he had served as chief toxicologist of Cook County, Illinois, and had been a consultant for various national organizations. Based upon information furnished him by plaintiff’s attorney, including the depositions of Dr. Martin and Dr. Davis, Dr. Proctor was of the opinion that exposure to the tear gas and its component ingredients, particularly nitrocellulose, under the circumstances described to him regarding the case at bar, could have resulted in the death of the decedent. This opinion was based, in part, upon a number of assumptions concerning the area where decedent was located at the time of his exposure to the tear gas, the length of time which the decedent was exposed to the gas and the quantity of nitrocellulose present. Dr. Proctor did not conduct any tests on the type of tear gas grenade involved nor did he personally examine the decedent’s body. He did, however, have some personal experience with toxicological research concerning the type of tear gas involved in this case.

On July 24, 1980, and August 6, 1980, the city of Alton and Federal Laboratories, Inc., respectively, filed motions to reinstate the summary judgment entered previously by the trial court. On October 10, 1980, the defendants’ motions were allowed. The trial court concluded: “There is no evidence present to base an opinion as to causal connection between the tear gas cannister and death of plaintiff’s decedent, nor is there any medical testimony from a qualified practitioner to support such a legal conclusion.”

On November 7, 1980, plaintiff again moved to set aside the order granting summary judgment on the grounds that Dr. Proctor was qualified to render an opinion as to the cause of the decedent’s death and that a medical practitioner, Dr. Robert F. Underwood, would submit an affidavit stating that there was a causal connection between the tear gas and decedent’s death. On January 23, 1981, plaintiff submitted Dr. Underwood’s affidavit which stated that he had reviewed the file in this cause, discussed the matter with medical experts, and concluded that the tear gas contributed to the death of the decedent.

On April 29,1981, the trial court denied plaintiff’s motion to set aside the order granting summary judgment on the ground that no new evidence was involved. The trial court also ruled that there was no just reason to delay an appeal. On May 22, 1981, plaintiff’s notice of appeal was filed.

Plaintiff raises two related issues. First, she maintains that the trial court abused its discretion in finding that Dr. Proctor was not qualified to render an expert opinion regarding whether there was a possible causal connection between the decedent’s tear gas exposure and his death. Plaintiff further urges that the trial court erred in granting summary judgment in favor of the defendants since the deposition of Dr. Proctor and the affidavit of Dr. Underwood gave rise to a genuine issue as to a material fact. (Ill. Rev. Stat. 1979, ch. 110, par. 57.) We reverse.

Defendants argue that only a medical doctor may testify as to the decedent’s cause of death. Additionally, they suggest that since Dr. Proctor’s testimony was based on probabilities and assumptions, it amounted to inadmissible speculation. We reject these contentions.

Defendants, while recognizing that no Illinois case holds that only a medical doctor may render an opinion as to the cause of death, cite a number of cases which they maintain can be read to infer such a rule. We find defendants’ cases distinguishable. People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112, and People v. Love (1978), 71 Ill. 2d 74, 373 N.E.2d 1312, both addressed the question of whether the State in a criminal case must present medical testimony as to the cause of death and held that such testimony is unnecessary where the cause of death is established beyond a reasonable doubt by other competent evidence. We do not read either Jones or Love as establishing a per se rule that only a physician may render an expert opinion as to the cause of a person’s death. Defendant, Federal Laboratories, Inc., directs our attention to Dolan v. Galluzzo (1979) , 77 Ill. 2d 279, 396 N.E.2d 13, which held that in order to testify concerning the standard of care to be exercised by a podiatrist, an expert witness must be licensed in the school of medicine of which defendant was a member. We note, however, that the Illinois Supreme Court has not strictly interpreted Dolan and has indicated that under some circumstances, a plaintiff’s witness, although not a medical practitioner, may testify as a medical expert. See Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 291-93, 415 N.E.2d 390, 395-96.

More pertinent to the case at bar is People v. Richards (1970), 120 Ill. App. 2d 313, 256 N.E.2d 475, upon which plaintiff relies. There the court found that it was not error to permit an expert with training in chemistry and pharmacology to express an opinion as to how long it would take for a certain drug to induce a com a and how long it would take for a person to be asphyxiated and die from carbon monoxide within a garage of specified dimensions. (120 Ill. App. 2d 313, 345, 256 N.E.2d 475, 492.) The expert witness in Richards had no background as a medical doctor but had a Ph.D. in organic chemistry, specialized in biochemistry, and had practiced many years in the field of toxicology. In the instant case, Dr. Proctor has a Ph.D. in pharmacology and toxicology and a bachelor’s degree in chemistry. He is a professor and chairman of the pharmacology department of a medical school and was chief toxicologist of Cook County, Illinois, for a number of years. Dr. Proctor has also served as a consultant for various national health organizations. Considering Dr. Proctor’s education and experience, we find that he was sufficiently qualified to render an opinion as to whether the exposure to the tear gas could have resulted in the decedent’s death.

We also cannot accept the defendants’ argument that Dr. Proctor’s opinion amounts to mere speculation and cannot be considered evidence concerning the cause of death. (See Clifford-Jacobs Forging Co. v. In dustrial Com. (1960), 19 Ill. 2d 236, 243, 166 N.E.2d 582, 586; Presswood v. Morris (1979), 70 Ill. App. 3d 513, 388 N.E.2d 844.) As this court stated in Presswood:

“ ‘[An expert] may testify to ‘what might’ have caused a death or injury, despite any objection that his testimony is inconclusive and speculative. The testimony is but the opinion of the witness given on facts assumed to be true. It is for the trier of fact to determine the facts.’ ” (70 Ill. App. 3d 513, 517, 388 N.E.2d 844, 848, quoting Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504, 506.)

We adhere to the principle that an expert opinion couched in terms of probabilities or possibilities based upon certain assumed facts is neither inadmissible nor improper.

In determining whether the evidence is sufficient to give rise to a genuine issue as to a material fact, we observe that the opinion expressed in Dr. Proctor’s deposition regarding a possible causal connection between the tear gas and the decedent’s death is further supported by the affidavit of Dr. Underwood, a medical practitioner. While defendants argue that Dr. Underwood’s affidavit cannot be considered since it was not in a proper form under Supreme Court Rule 191(a), we hold that this contention has been waived by defendants’ failure to object to this affidavit in the trial court. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 501, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.

In view of the above analysis, it is apparent that the case at bar presents a situation in which there is conflicting expert opinion. Defendants’ experts maintain that the decedent’s death could not have resulted from the inhalation of tear gas, while plaintiff’s experts have reached a contrary conclusion. We conclude that, under these circumstances, there is an issue of fact for the trier of fact to decide. Therefore, the summary judgment entered by the circuit court of Madison County is erroneous.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

JONES and HARRISON, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE BOARD OF COMMISSIONERS OF THE WOOD DALE PUBLIC LIBRARY DISTRICT et al., Plaintiffs-Appellants, v. THE COUNTY OF DU PAGE et al., Defendants-Appellees.
    Second District
    No. 81-731
    Opinion filed June 30, 1982.
    Barry L. Moss, of Moss and Bloomberg, Ltd., of Bolingbrook, for appellants.
    James R. Schirott, of Samuelson, Knickerbocker and Schirott, of Des Plaines, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Who is entitled to the interest earned on tax moneys collected by the county treasurer acting as ex officio county collector prior to distribution of the principal to the units of local government levying the taxes is the question before us.

The action was brought by the Wood Dale Public Library District and its commissioners on its own relation and purportedly on behalf of all units of local government in Du Page County (District). The complaint alleged that the county had retained interest earned on collected tax money in violation of Illinois statutory and constitutional law. The County of Du Page, its commissioners and its treasurer and ex officio county collector (County) moved to dismiss the complaint for failure to state a cause of action, and the court granted the motion.

The District appeals, arguing that the distribution of the earnings at issue is controlled by the act relating to investments of public agencies (111. Rev. Stat. 1979, ch. 85, pars. 901, 902) (Public Funds Act), requiring the county to distribute the earnings pro rata to the units of local government. It bases its argument on principles of statutory construction and on its contention that allowing the county to retain the earnings on funds belonging to other units of local government under the act relating to county treasurers (111. Rev. Stat. 1979, ch. 36, par. 22.1) (Treasurers Act) would violate article VII, section 9(a), of the 1970 Illinois Constitution, the equal protection clauses of the United States and Illinois constitutions, and the principle of uniformity of taxation.

The Treasurers Act provides as pertinent:

“The term ‘county moneys’ shall include all moneys to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer.” Ill. Rev. Stat. 1979, ch. 36, par. 17.
“All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” Ill. Rev. Stat. 1979, ch. 36, par. 22.1.

The Public Funds Act provides as pertinent:

“The words ‘public funds’, as used in this Act, mean current operating funds, special funds, interest and sinking funds, and funds of any kind or character belonging to or in the custody of any public agency.
The words ‘public agency’, as used in this Act, mean the State of Illinois, the various counties, townships, cities, towns, villages, school districts, special road districts, public water supply districts, fire protection districts, drainage districts, levee districts, sewer districts, housing authorities, and all other political corporations or subdivisions of the State of Illinois, now or hereafter created, whether herein specifically mentioned or not.” Ill. Rev. Stat. 1979, ch. 85, par. 901.
° ° All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” Ill. Rev. Stat. 1979, ch. 85, par. 902.

The District argues that the Illinois Supreme Court, in Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, has decided that the Public Funds Act is applicable to investments of tax funds held by a collecting officer before distribution, and that any income from these funds should be credited to the public agency for which the investments were made. In O’Connor, the court held that the township collector’s role as collector and custodian of tax funds belonging to other taxing units did not entitle the township to the income from its investment of these funds. (85 Ill. 2d 195, 207.) However, O’Connor has not addressed the precise issue before us since the township was not investing funds according to the Treasurers Act and thus did not rely on a grant of authority from a statute apparently in conflict with the Public Funds Act.

Both acts appear to be in pari materia as they purport to deal with the same subject matter (United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 43), but it is difficult to reconcile them by familiar rules of statutory construction. The basic rule that the legislative intent should be given effect, primarily from the language of the statute (see, e.g., Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203) is of limited aid in determining which act applies. The County argues that section 2 of the Public Funds Act contains the proviso “except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund” (Ill. Rev. Stat. 1979, ch. 85, par. 902), and contends that section 6.1 of the Treasurers Act (Ill. Rev. Stat. 1979, ch. 36, par. 22.1) is such a provision. However, the use of the phrase “particular fund” elsewhere in the two statutes tends to support the District’s argument that the exception is basically one of “proper accounting” designed to insure that interest on principal from a special fund as opposed to the general fund of a public agency goes to the special fund, where mandated. Sections 3 and 4 of the Public Funds Act refer to “particular fund[s]” of a public agency, apparently to distinguish such funds from general agency funds. (Ill. Rev. Stat. 1979, ch. 85, pars. 903, 904.) It should also be noted that section 6.1 of the Treasurers Act has a similar exception clause to that of the Public Funds Act. Either interpretation appears reasonable; the exception clause in each statute could be read simply as providing that funds be invested as provided therein in the absence of a more specific statutory provision elsewhere. This interpretation is strengthened by the fact that each exception clause uses the phrase “particular fund” rather than “special fund.”

It is also a general rule that specific statutory provisions control over more general ones (see, e.g., Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 403). But which is more specific? The District argues that the Treasurers Act is meant to apply only to county funds and thus that the Public Funds Act which applies to tax money belonging to other units is the more specific; the County argues on the basis of the language of the Treasurers Act that that act deals only with those moneys held specifically by the county treasurer while acting as county collector, whereas the Public Funds Act deals with the funds of public agencies generally. To reconcile these arguments requires us to address the District’s premise, that the Treasurers Act applies only to the county’s own funds and that other funds collected are governed by the Public Funds Act.

In essence, the District is arguing that the Public Funds Act repealed the applicable portion of the Treasurers Act by implication insofar as the Treasurers Act requires income from noncounty tax funds to be credited to the county treasury. Repeal by implication, however, is not favored and “the clearest case possible must be made before inference may properly be drawn that a later act, by implication, repeals an earlier one.” (People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 129. See also City of Champaign v. City of Champaign Township (1959), 16 Ill. 2d 58, 67-68.) We note in this connection that the pertinent provision of the Treasurers Act was added in 1967, whereas the applicable provision of the Public Funds Act was enacted in 1975, which was subsequent to the 1970 Constitution, article VII, section 9(a).

The intention of the legislature drawn from the language used in the two acts appears unclear, tested by the referenced rules of statutory construction. However, there is a further rule of statutory construction that where “two legislative schemes do not seem totally compatible, they can, and should, be given an interpretation which imparts meaning and constitutionality to each enactment.” (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 31-32.) Also, “[wjhere it is contended that a section of a statute is in contravention of the constitution and it is susceptible of two constructions, one of which would render it constitutional and the other unconstitutional, it is the duty of the court ° * * to so construe the section as to uphold its constitutionality and validity * * * and if the construction is doubtful the doubt will be resolved in favor of the validity of the law.” People ex rel. Mathews v. Board of Education (1932), 349 Ill. 390, 400.

Here, the District contends that the County’s retention of earnings from plaintiffs’ funds in the County’s custody violates article VII, section 9(a), of the Illinois Constitution which directs:

“Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” Ill. Const. 1970, art. VII, sec. 9(a).

Plaintiffs maintain that by withholding interest from local taxing districts and “diverting” such interest to the county treasury instead, the county is, in effect, charging local taxing districts a fee based on funds collected and on the levy or extension of taxes, in violation of article VII, section 9(a). The collector answers that the interest is a “perquisite” or an “emolument” of the office and that article VII, section 9(a), prevents only “fees” from being collected. The argument that “perquisites” and “emoluments” of the office are not prohibited by the 1970 Constitution, however, is not fortified by the cases that the county cites, Hughes v. People (1876), 82 Ill. 78, and County of Lake v. Westerfield (1916), 273 Ill. 124. Hughes stands for the proposition that moneys paid by a bank to a sheriff in return for his depositing funds of his office is a perquisite or emolument which may not personally be retained in addition to his fixed compensation; Westerfield, that a county treasurer as county collector is not personally entitled to interest earned on the funds collected, again in addition to his fixed compensation.

There is nothing in these two opinions to indicate that the courts have used the terms “fees,” “perquisites,” and “emoluments” as precise terms of art, or that simply because interest on invested funds might be considered a “perquisite or emolument” of the county collector’s office, it cannot also be considered a proscribed “fee” as that word is used in article VII, section 9(a), of the Illinois Constitution. We believe that whether the retention of interest that is challenged here is a prohibited fee according to article VII, section 9(a), should hinge on a consideration of the policies intended to be served by that provision rather than on artificial semantic distinctions based on cases decided long before its adoption.

The Illinois Supreme Court has construed article VII, section 9(a), broadly. (City of Joliet v. Bosworth (1976), 64 Ill. 2d 516.) In Bosworth, the court struck down a portion of the Fees and Salaries Act (Ill. Rev. Stat., 1974 Supp., ch. 53, par. 39a), which allowed counties to bill each taxing district within the county for its proportionate share of the actual costs incurred by a county in extending and collecting taxes. Relying in part on the constitutional proceedings (4 Record of Proceedings, Sixth Illinois Constitutional Convention 3404-05 (hereinafter cited as Proceedings); 64 Ill. 2d 516, 524-25), the court found that the intention was “to preclude counties from seeking, in any form, reimbursement from the various taxing bodies for county services rendered in the collection of taxes.” (64 Ill. 2d 516, 524.) It noted that “the collection of taxes by county officers is a county function which should be supported by county taxes.” 64 Ill. 2d 516, 531.

In Goldstein v. Rosewell (1976), 65 Ill. 2d 325, the Illinois Supreme Court invalidated a provision of the Inheritance Transfer Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 394) which authorized the county treasurer to retain and pay into the treasury 4% of inheritance taxes collected. The court reviewed the historical background against which the reimbursement was originally made directly to the county treasurer for his services, and later when he became salaried, to require that he pay the percentage of the .collected taxes into the county treasury. The court noted that the purpose of the change “was to give to the counties and not the State * * * the fees earned by the county treasurer in the collection of the taxes * ° (65 Ill. 2d 325, 328.) See also Saltiel v. Olsen (1979), 77 Ill. 2d 23, 27, where the supreme court concluded that “the collection by one governmental entity of a tax due to a different entity has been regarded as a fee imposed by the former, rather than as a distribution of tax revenues after they have been collected,” and invalidated the county’s retention of net proceeds from the sale of State revenue stamps.

Plaintiffs argue that the withholding of income from taxes which they have levied is in essence the charging of a fee based upon funds disbursed or collected and upon the levy or extension of taxes. While the county is retaining interest from the investment of collected tax funds rather than taking a percentage of those funds directly, we also do not perceive a rational difference. By retaining the interest earned on investment of another taxing body’s funds, the county is depriving that taxing body of the time value of the money that the county has collected for it; this enrichment of the county treasury arises solely from the county treasurer’s statutory role as collector and custodian of local taxing district’s revenues. That the county is retaining interest rather than principal seems irrelevant; in either case, the county, by virtue of the statutory collection procedure, is retaining a sum of money that would otherwise be available to local taxing districts.

A major difference between the charges struck down in Bosworth, Goldstein and Saltiel on the one hand, and the retention of interest at issue here on the other, is that in each of the former cases it was apparent from either the face of the act in question or from its legislative history that the purpose of the legislature in adopting the act was to recompense one unit of government for the expenses it incurred in collecting taxes due another unit of government. Such a legislative purpose is not apparent with regard to the interest-retention provisions of the Treasurers Act. The District cites People ex rel. Abbe v. Nash (1936), 364 Ill. 224, in support of its claim of such a purpose, but Nash did not deal with section 6.1 of the Treasurers Act; rather, it was concerned with various provisions of the Revenue Act involving collection of penalties and interest from delinquent taxpayers. Nevertheless we cannot agree with the argument of the county that the retention of interest is not a charge for the purpose of collecting taxes, but simply part of an overall scheme for the investment of moneys in the custody of the county treasurer.

To be a “fee” based upon funds collected or upon the levy or extension of taxes, it would seem sufficient that a charge is derived from the tax collection and disbursement process; the interest “charge” in this case is clearly tied to the collection process, as the interest accrues to the county by virtue of the tax collection process as it is presently structured. That a charge may be a “fee” without being directly tied to compensation is suggested by a reading of article VIII, section 9(a), itself; the first sentence specifies that compensation for the expenses of local government shall not be paid from fees collected; the second clause provides, however, that fees may still be charged, subject to the limitations of the last sentence, which requires that they not be based upon funds disbursed nor collected nor upon the levy or extension of the taxes. The logical inference is that a county’s charge to another unit of government may be a fee even though not for the purpose of compensating the county for the expenses of tax collection, and, further, that insofar as the retention of interest in this case is in effect a charge upon units of local government that it is proscribed by the last sentence of article VII, section 9(a). It should be noted that the aim of the County Treasurers Act appears to have been the statutory prohibition of the practice whereby the county treasurers enriched themselves by investing funds in their custody and retaining the interest personally. Regardless of the original purpose of the statutory provision for retention of interest, it is functionally a charge based upon the levy and disbursement of taxes. See Saltiel v. Olsen (1979), 77 Ill. 2d 23, 26-27.

It is clear from the constitutional debates that the evils that article VII, section 9(a) was designed to correct are the danger of deceiving the public as to county finances and the perceived inequity of the “skim-off” for those paying higher taxes. This would appear to be present in the interest retention scheme of the Treasurers Act. Retaining a percentage of tax funds in interest is no different in effect from taking a portion of the principal. The fact that the county has some control over the time of distribution of the collected funds and gains by delay in distribution also illustrates the danger which the constitutional change appears designed to prevent.

It also appears that the tax collection and distribution system mandated by section 6.1 of the Treasurers Act, if it applies to noncounty funds violates the equal protection clauses of the Federal and Illinois constitutions, by allowing counties to receive interest on their collected tax moneys while denying this benefit to other units of local government. The counties are allowed to earn interest on county taxes when they have been received by the county collector; yet under terms of section 6.1 every other unit of local government does not receive any interest on funds in the hands of the county collector. In addition, the taxes for local government units in some areas may be collected by the township collector, and pursuant to Town of City of Peoria interest must be returned to the unit involved; in another township there may be circumstances when the county collector collects the taxes for the local unit and under the collector’s argument as to paragraph 6.1 interest could be retained by the county.

The legislative classification is valid if it is based on a real and substantial difference having a rational relation to the subject of the particular legislation. (Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 511.) A court will not interfere with the judgment of the legislature unless the classification is clearly arbitrary and unreasonable, with all reasonable doubts to be resolved in favor of upholding the validity of the challenged law. McRoberts v. Adams (1975), 60 Ill. 2d 458, 463.

It is difficult to conceive of a legitimate basis for the challenged classification. Although compensating counties for the cost of collecting taxes due other units of local government would appear to be a rational basis for the classification, the fundamental policy of article VII, section 9(a), against such compensation appears to weigh decisively against upholding the unequal treatment of counties and other local governmental units on this basis. The challenged classification therefore seems to be no more than an arbitrary and unjustified preference for counties as against other units of local government. Arbitrarily granting one unit of government a privilege denied to other units is constitutionally impermissible. (Harvey v. Clyde Park District (1965), 32 Ill. 2d 60, 64-67; Hutchings v. Kraject (1966), 34 Ill. 2d 379, 382. See also Jenkins v. State (1975), 85 Wash. 2d 883, 540 P.2d 1363.) The plaintiffs clearly have standing to make this argument here. Cronin v. Lindberg (1976), 66 Ill. 2d 47, 56.

The District’s argument that the Treasurers Act violates the principles of uniformity of taxation does not appear well founded. (See Board of Education v. Clark (1972), 51 Ill. 2d 323, 328.) However, in light of our resolution of other issues above, we need not reach this question.

We thus conclude that retention of interest on the District’s tax revenues by the county pursuant to the Treasurers Act violates article VII, section 9(a), of the Illinois Constitution and that this conclusion militates in favor of the statutory interpretation that section 6.1 of the Treasurers Act is not intended to include the interest earned on funds owned by other units of local government. If this practice is permitted the Treasurers Act would be unconstitutional. It follows that under section 2 of the Public Funds Act the District is entitled to the claimed interest moneys.

The judgment of the trial court dismissing the complaint for failure to state a cause of action is therefore reversed and the cause remanded with directions to vacate the prior order and to thereupon proceed in accordance with this opinion.

Reversed and remanded with directions.

NASH and HOPF, JJ., concur.

       The remarks of Delegate Zeglis primarily responsible for article VII, section 9(a), include:
      “However, the most valid reason for abolishing this skim-off by the county for its corporate fund is the inequitable nature of this hidden — what I call surtax. “ “ 0 I will give you an example of why this is a surtax, which is very unfair. “ ® ® A homeowner in a rural area with a $10,000 home has a $300 tax bill. His taxes are low because he is taxed only by the county, his local school district, and the township. From his $300 taxes, 3 percent or $9 is taken by the county treasurer-collector as fees, and given to the county government for corporate purposes. “ * “For his $9 that this rural taxpayer pays — this $9 — he receives very often a good county road, snow removal, police protection by the sheriff, the county zoning officer and building permits, the benefit of the county health department and many other services, “ ”
      The other resident lives in a city in the county. His tax bill on his $10,000 house is $600, and the county treasurer takes $18 from his tax bill for county purposes. The reason his tax bill is $600 is because he pays his county tax, city tax, school and park district tax, airport authority tax, mosquito abatement tax, and the township and transit authority tax. Thus he indirectly pays the county $18 for county services, plus his ordinary county tax; and he receives none of the services that the rural resident receives, for the city provides his police protection, his road, zoning, building officers, and health officers. This would be an unfair tax without this example of discrepancy of services in these two areas as they — as why would a person with a high tax rate pay more county taxes than those in a low-tax area if the valuations are identical?” 4 Proceedings 3405; City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 525.