author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAYSEN MARTIN, Defendant-Appellant.
    Second District
    No. 81—901
    Opinion filed May 27, 1983.
    G. Joseph Weller and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Elgin, and Gary R. Peterson, of State Appellate Defender’s Office, of Springfield, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Cheri Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

After a jury trial, defendant, Jaysen Martin, was found guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) and was subsequently sentenced to an extended term of eight years’ imprisonment. On appeal, defendant contends that the State failed to prove that his entry of the house in question was without authority and that there was a fatal variance between the date of the offense in the bill of particulars and the date testified to at trial.

On May 8, 1981, the defendant was charged in an information with three counts of burglary and three related counts of theft. Count II charged defendant with burglary in that “on or about March 31, 1981, *** [he], without authority knowingly entered a building of George Layoff *** with the intent to commit therein a theft ***.” In answer to defendant’s motion for a bill of particulars the State set forth that this burglary occurred between 8 a.m. and 2 p.m. on March 31, 1981. The other two burglaries and related thefts were alleged to have occurred on March 30, 1981, at the Gerda Steinmetz residence and on April 1, 1981, at the Layoff residence. At the close of the State’s case, the trial court directed verdicts of acquittal for defendant on two of the three theft counts. The jury found the defendant not guilty of the March 30 and April 1 burglaries and the April 1 theft, but found the defendant guilty of the March 31 burglary.

The trial testimony will be discussed only as is necessary to understand the issues raised in this appeal. The State presented testimony that defendant, during the first two weeks of April 1981, sold several items of jewelry to Eugene Nowell, the owner of the Old World Coin Shop. This jewelry was identified as jewelry which was missing from the residences on the dates in question.

George Layoff, Sr., testified that around March 31 or April 1, he was not sure of the date, he and his wife returned home from work and found several items of jewelry missing. He stated that he lives in the house with his wife, his daughter and his son, George Jr. He said that he rents the house; that he has complete control of the premises; and that his name is on the lease. He testified that he did not give anyone permission to take the jewelry from his house or to enter the house to take the jewelry.

George Layoff, Jr., testified, on direct examination, that on March 30 the defendant told him that he would sell him marijuana for any gold that George could obtain. In a later conversation that same day or the next day with the defendant, George Jr. agreed to leave the back door of his parents’ house unlocked. The defendant told him that he would take a couple of rings and that he would then give George Jr. one-half pound of marijuana in exchange. The day George Jr. left the door unlocked for the defendant, he left the house about 8:30 in the morning, he went to his grandmother’s home, and he returned after 2:30 in the afternoon. He went to his parents’ room and discovered that two rings of his parents’ were missing. He said that the defendant did not give him the marijuana he promised. Although he observed his class ring there at that time, he later discovered the ring was missing. He testified that he never gave defendant permission to enter the house again to take his class ring. Pry marks were found on the back door. This testimony regarding the class ring formed the basis of a separate burglary count alleged to have occurred on April 1, and for which the defendant was found not guilty.

On cross-examination George Jr. testified that he was 17 years old; that he lived with his sister and parents in his parents’ home; and that he was suspended from school for three days beginning on Monday of the week in question. He testified he had had one discussion with the defendant on March 30 and another on March 31 in which he agreed to leave the back door of the house unlocked for the defendant. He said he went to his grandmother’s home on April 1.

On redirect examination, however, after prompting from the State regarding the dates, he testified that his first two conversations with the defendant both occurred on Monday, March 30; that he left the door unlocked on March 31; and that he returned that afternoon from his grandmother’s home and found his parents’ rings missing.

The defendant denied ever entering the Layoff home and presented an alibi defense by his own testimony and that of five of his friends. The alibi testimony, in essence, was that defendant was with friends from March 30 until 5:30 p.m. on April 1.

Defendant first contends that his conviction should be reversed because the State failed to prove an essential element of the crime of burglary. Section 19 — 1 of the Criminal Code of 1961 provides that:

“A person commits burglary when without authority he knowingly enters or without authority remains within a building *** or any part thereof, with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).)

This statute requires the State to prove that an entry was both without authority and with the intent to commit a felony or theft. People v. Weaver (1968), 41 Ill. 2d 434, 439, 243 N.E.2d 245.

Defendant maintains that George Layoff, Jr.’s testimony clearly shows that he gave the defendant permission to enter the house and left the door open for him, and that this proved that his entry was not “without authority.”

In People v. Castile (1975), 34 Ill. App. 3d 220, 339 N.E.2d 366, the appellate court rejected a similar argument that an assistant store manager could authorize an entry for an unlawful purpose. The court reasoned that the assistant manager had no more authority to consent to an entry of his employer’s building for the purposes of a theft than he had to steal the merchandise himself. 34 Ill. App. 3d 220, 226, 339 N.E.2d 666.

The parties have not cited any Illinois decision nor has our research disclosed any case in Illinois which has addressed the precise question of whether a minor can authorize an entry into his parents’ home for the unlawful purpose of stealing their property. However, the Court of Appeals of North Carolina in State v. Tolley (1976), 30 N.C. App. 213, 226 S.E.2d 672, reached the issue in a case where the son of the occupants of a residence had told the defendant where a key to his parents’ house was located as part of a plan to steal some of his parents' belongings. Defendant was arrested and convicted of “felonious breaking and entering.” The court held that although a person entering a residence with the good-faith belief that he has the consent of the owner or occupant or his authorized agent is not chargeable with the offense of breaking and entering, defendant could not reasonably have believed that the son had authority to permit the defendant to enter his parents’ house for the purpose of stealing valuables which belonged to the parents and not their son. (30 N.C. App. 213, 215, 226 S.E.2d 672, 674.) The court concluded that the defendant did not have authorized consent to enter the home.

Under the particular factual circumstances in the instant case, we find that defendant’s entry into the house was without authority. The younger Layoff, as an unemancipated minor living in a house which his father rented and controlled, may have the ability to authorize entries into his parents’ house for lawful purposes. We hold, however, that he could not authorize the defendant’s entry into his parents’ house for the unlawful purpose of stealing his parents’ jewelry. Here, there was sufficient evidence for the jury to find that the younger Layoff’s consent to the defendant’s entry for the purpose of committing a theft was beyond his authority, thereby making the entry unauthorized. See In re S.R.H. (1983), 96 Ill. 2d 138, 449 N.E.2d 129.

People v. Peace (1980), 88 Ill. App. 3d 1090, 411 N.E.2d 334, cited by the defendant is clearly distinguishable. There, this court reversed a burglary conviction where a baby-sitter let the defendant into a residence to use the phone, and the defendant then attacked her. The State urged the court to affirm on the basis of the rule, applicable to buildings open to the public, that authority to enter is limited to purposes consistent with the reason the building is open to the public. We declined to apply the “limited purpose” rule to the entry of a private home. In that case there was no issue of the 12-year-old babysitter’s authority to allow the defendant into the house.

The defendant also urges that his conviction should be reversed because the bill of particulars stated that the burglary of the Layoff residence charged in count II occurred on March 31 while George Layoff, Jr.’s testimony was that defendant entered the house on April 1. Defendant argues that his conviction was improper because this variance exposed him to double jeopardy, misled him in preparing his defense and, therefore, violated his right to due process.

From our examination of the record and, in particular, the testimony of George Layoff, Jr., it is apparent that Layoff Jr.’s testimony is less than precise. On direct examination his testimony appeared to indicate that the first burglary of the Layoff residence charged in count II occurred on either March 31 or April 1. On cross-examination he stated this burglary occurred on April 1. However, on redirect examination he specifically testified that the first burglary of the Layoff residence occurred on March 31.

A minor inconsistency in the testimony of a witness as to the date of the alleged occurrence from the date in a bill of particulars, particularly when subsequently corrected pursuant to specific inquiry, does not amount to a fatal material variance. (People v. Taylor (1965), 33 Ill. 2d 417, 423, 211 N.E.2d 673.) George Layoff, Jr.’s testimony as to the date of the burglary only raised an issue as to his credibility which the jury could properly consider. (See People v. Cassman (1972), 7 Ill. App. 3d 786, 288 N.E.2d 667 (abstract of opinion).) Defendant was not misled in preparing his alibi defense in this regard, and has not shown any prejudice since he did present evidence of an alibi on the date and time of this offense specified in the bill of particulars. Nor could the defendant be subject to double jeopardy since the six-count information, as supplemented by the bill of particulars, and the evidence at trial adequately details two separate burglaries at the Layoff house on two separate dates.

For the foregoing reasons, the judgment of conviction appealed from is affirmed.

Affirmed.

VAN DEUSEN and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
      In re TERENCE RUSICK—(The People of the State of Illinois, Petitioner-Appellee, v. Terence Rusick, Respondent-Appellant).
    Fifth District
    No. 82—181
    Opinion filed May 13, 1983.
    Frederick R. Firestone, of Guardianship & Advocacy Commission, of Alton, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Following a hearing the trial court ordered that the respondent, Terence Rusick, was a person subject to involuntary admission and that he be hospitalized in the Department of Mental Health and Developmental Disabilities. At the hearing respondent testified in his own behalf in an effort to persuade the court to permit him to be admitted voluntarily. The trial court subsequently denied respondent’s motion to vacate the judgment for involuntary admission and to allow his petition for voluntary admission. He appeals raising a single issue: “[w]hether the trial court erred in denying respondent his statutory right as due process of law in not allowing respondent to become a voluntary patient.”

Apparently because of inaudibility, the transcript of the hearing contains omissions, some rather serious, in the testimony of all three of the witnesses. The testimony of the first witness, Dr. Carmen Ferro, for example, who is described in respondent’s brief as “a psychiatrist at Alton Mental Health Center,” begins with an instruction from the bench: “Continue Doctor.” Neither party has provided us with the substance of any of the omitted testimony.

Dr. Ferro testified that she “recommend[ed] commitment so we can treat him properly and discharge him when he’s ready without having him request release. His judgment is very poor, so I think it is therefore against my recommendation to let him sign for himself.” She diagnosed respondent as suffering from “Schizophrenia-paranoid type” and described his thinking as “so delusional that he distorts reality.” On cross-examination counsel for respondent asked, “You mentioned previous occasions when Mr. Rusiek had come in as a voluntary patient. Had he requested to leave soon thereafter?” Although the witness answered in the affirmative, the transcript contains nothing on direct examination with regard to respondent’s prior voluntary admissions. She indicated that “the last two admissions” of respondent had occurred in April and June of 1981, that they had been voluntary, and that he had requested his release following admission. Although there is little indication in the record of how long he had been hospitalized on these two occasions before he asked to be released, the following colloquy between respondent’s attorney and the witness is somewhat illuminating:

“Q. But isn’t this case a little bit different because unlike some situations where Mr. Rusiek might ask to sign a voluntary after he was brought in from emergency admission, Mr. Rusiek approached St. Elizabeth’s Hospital and asked to sign a voluntary admission?
A. Yes this case is different in a way that I know this case for many years [sic] and I know more or less what his behaviour has been, being past history, and I know that he would be requesting his release within a few days and he’s not ready to be discharged.
Q. Has he told you he’d be requesting his release within a few days?
A. No, but I know the ways he has been—
Q. Has he told you he wants to be treated and wants to become better and that’s why he wants to be here?
A. Sometimes he comes and says he wants to be treated. Sometimes he says he’s better already and he’s ready to leave.”

Respondent had told her the day before that he was “much better” but had not asked her if he could leave. Respondent appears to have sought treatment at St. Elizabeth’s Hospital on January 4, 1982, 10 days before the hearing on January 14, and to have been transferred to the Alton Mental Health Center. Earlier, in response to the question on cross-examination of whether it is “generally considered good for the patient if he decides to sign himself in voluntarily,” Dr. Ferro answered, “To [sic] some patients, yes,” adding, “Usually when you let somebody sign it [sic] voluntarily *** you consider their judgment to be fairly good.” The respondent had been on suicidal precautions when first admitted because he had admitted to being “very depressed” and had been “considering different ways of killing himself.” Dr. Ferro testified that respondent usually responds well to medication but that “outside” the facility, he stops taking it.

The other witness called by the State was Mary Gibbons, described in respondent’s brief as a “hospital employee.” Her testimony, like that of Dr. Ferro, begins in media res. Of “one of the last read-missions” of the respondent she testified on direct examination as follows:

“I don’t remember — recall any unauthorized absences but he did [inaudible] before we felt he was ready. And on one occasion — I don’t have a date; it’s in the charts — he had hurt his arm, broke his hand, from hitting another client, had to be under restraints from threatening that and other clients, tore the cast off — which the doctor had put on — and signed his request for release to leave the hospital.”

Asked on cross-examination whether respondent had told her that “he wants to be treated, he wants treatment, he wants you to help him,” the witness answered, “He’ll do that one minute, the next minute he says he’s ready to kill himself. He’s very changeable.” The witness indicated that her concern about allowing respondent to be admitted voluntarily stemmed in part from the fluctuations in his state of mind and, accordingly, in his behavior. Although his behavior at the time he sought release following a voluntary admission might be such that he could not be admitted involuntarily, he would not be well enough to be discharged and might, once discharged, “tak[e] an overdose.”

Testifying in his own behalf, the respondent, when asked on direct examination whether he wanted to be a voluntary patient, answered, “Sure, I want to get well.” The following appears to be in reference to a part of Ms. Gibbons’ testimony absent from the transcript:

“Q. [Respondent’s attorney] Ok. You heard Miss Gibbons testify that yesterday you told her that you wanted to leave the hospital. Is that true?
A. Yesterday I said that?
Q. Today.
A. No, she told me that. She said that I was well enough to leave. I didn’t say that. She told me that.
Q. How do you feel now? Would you like to be a voluntary patient?
A. Yes.
Q. Would you sign out tomorrow if you were a voluntary patient?
A. No, I want to get well.”

Section 3 — 801 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91%, par. 3 — 801) (hereafter referred to as the Code) provides:

“A respondent may request admission as an informal or voluntary patient at any time prior to an adjudication that he is subject to involuntary admission. If the facility director approves such a request, the court may dismiss the pending proceedings but may require proof that such dismissal is in the best interest of the respondent and of the public.”

Respondent relies heavily on In re Byrd (1979), 68 Ill. App. 3d 849, 386 N.E.2d 385, which was governed by section 3 — 5 of the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 91%, par. 3 — 5), providing as follows:

“Any person may request to become an informal or voluntary patient under Article IV or Article V of this Act at any time prior to a court entering an order adjudicating him to be in need of mental treatment and if the person becomes such a patient, the court shall dismiss any pending proceedings, but that when proceedings have been instituted pursuant to Articles VII or VIII of this Act, the court may require proof that such dismissal is in the best interest of that person and of the public.”

Byrd had filed an application for voluntary admission two days before the hearing in which he was found by the trial court to be mentally ill and was admitted involuntarily to a mental health hospital. In Byrd, as in the case at bar, the appellant did not challenge the trial court’s ruling that he was in need of treatment. As in the case at bar, the appellant challenged the basis upon which his petition for voluntary admission was denied. On appeal the judgment of the trial court was reversed. Although the 19-year-old appellant in Byrd had been institutionalized at a “young age” (68 Ill. App. 3d 849, 854, 386 N.E.2d 385, 389), no evidence was presented that he had been institutionalized since that time. Further, the only physician to testify was not asked an opinion as to whether Byrd should have been admitted voluntarily or involuntarily, and no evidence concerning the most beneficial kind of admission was presented. There was, in Byrd, “nothing in the record to indicate the basis for the denial of the voluntary petition.” 68 Ill. App. 3d 849, 854, 386 N.E.2d 385, 389.

In the case at bar the State relies upon the more recent case of In re Hall (1981), 92 Ill. App. 3d 1136, 416 N.E.2d 731, which respondent does not cite, in which Hall was the subject of a petition for involuntary admission to a mental health facility. Before the hearing commenced Hall moved to dismiss the involuntary proceeding and to be admitted as a voluntary patient. On review the court affirmed the denial of Hall’s motion for voluntary admission. In Hall the respondent likewise relied on Byrd. However, the operative provision of the Code in Hall, as in the instant case, was not section 3 — 5 of the Mental Health Code of 1967, as it was in Byrd, but section 3 — 801 of the Code, which became effective on January 1, 1979. The court in Hall noted that the Code has added a requirement not present in the earlier one, namely, the approval of the facility director. The record in Hall contained no such approval, nor does the record in the instant case. In Hall, as in the instant case and unlike the situation in Byrd, the respondent had a recent history of hospitalization. Further, in Hall, although there was no direct evidence on the record of the opinion of the doctor regarding voluntary admission for the patient as opposed to involuntary admission, the trial court had stated, without objection by respondent’s counsel, that at the conference before the hearing the doctor had indicated that involuntary commitment was proper.

In the case at bar, in addition to the respondent’s recent history of frequent hospitalizations for mental illness, there is direct evidence on the record of the doctor’s opinion that the respondent should not be admitted voluntarily because of his history of having been admitted ' apparently several times voluntarily, only to request release relatively shortly thereafter when he was not yet well enough to be discharged. The doctor was well acquainted with respondent’s condition and behavior and with the poverty of his judgment.

Respondent stresses, and properly so, the requirement in Byrd that the evidence show why voluntary admission is inadequate and why involuntary admission is necessary, which requirement has been met in the instant case. Respondent does not, however, refer to the paragraph of Byrd immediately following the statement of that requirement:

“We think that before a trial court would deny a voluntary commitment petition and order involuntary commitment, the trial court should hear evidence as to the advisability of voluntary admission. Generally, testimony from a physician is heard as to the advisability of voluntary admission. ‘The physician will normally recommend that the patient be allowed to admit himself on a “voluntary” basis if the person recognizes that he has a problem and wishes to remain in the hospital for treatment. If the physician feels that the person will immediately sign a request to leave or if the person has a history of frequent unauthorized absences, he will probably not recommend that the person be admitted on a “voluntary” basis.’ (Beis, Civil Commitment: Rights of the Mentally Disabled, Recent Developments and Trends, 23 DePaul L. Rev. 42, 59 (1973).)” (Emphasis added.) (68 Ill. App. 3d 849, 854, 386 N.E.2d 385, 388-89.)

The record, however abbreviated, shows that Dr. Ferro believed respondent would sign a request to leave shortly after being admitted voluntarily, as he had repeatedly done, and for that reason would not recommend voluntary admission, which might ultimately work him harm. Her recommendation is in accord with accepted medical practice as described in the quotation in Byrd.

Respondent contends that the doctrine of least drastic means applies to matters of civil commitment and requires that he be admitted voluntarily rather than involuntarily because, in respondent’s view, the legitimate State purpose of protecting the individual from himself can be met as well by the less drastic means of voluntary commitment. However, respondent overlooks the apparently credible testimony of Dr. Ferro and Ms. Gibbons to the contrary. In view of this evidence we need not consider the contention further.

Respondent argues that the State lacked the compelling State interest required to impinge on his fundamental right of liberty. The crux of his argument is that the State may not cause a citizen to be admitted involuntarily “under the guise of parens partriae” absent the incapacity to make a “proper decision” with respect to his need for treatment. Respondent concludes that because he recognized his need for psychiatric treatment and, in fact, sought such treatment, he had the capacity to make such a decision. However, the testimony of both Dr. Ferro and Ms. Gibbons, which the trial court had to have believed in order to have ruled as he did, indicates that respondent can assess correctly his need for psychiatric treatment only at times; at other times he perceives incorrectly and to his detriment that he is well. Indeed, his poverty of judgment in this regard is a manifestation of his illness. In view of this evidence we need consider the contention no further.

Respondent maintains that Dr. Ferro and Ms. Gibbons sought involuntary rather than voluntary admission of him for reasons of “administrative convenience.” During cross-examination Dr. Ferro was asked whether it was “true that if the Court sees fit to allow Mr. Rusick to sign a voluntary admittance, if he gives you five days notice, you could, of course — can executive a Petition and have him kept here,” to which she replied, “yes, that is true, but there is not — you don’t find people so willing to sign petitions sometimes.” Later Ms. Gibbons testified to reasons for reluctance on the part of staff to sign such petitions, none of which lend credence to the explanation respondent advances.

Affirmed.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE KARNS

text:
    MINERAL RESOURCES, INC., et al., Plaintiffs-Appellants, v. CLASSIC COAL CORPORATION et al., Defendants-Appellees.
    Fifth District
    No. 82—335
    Opinion filed May 9, 1983.

      William G. Guerri, Michael D. O’Keefe, and Kenton E. Knickmeyer, all of Thompson and Mitchell, of East St. Louis, for appellants.
    James B. Bleyer, of Marion, and Thomas E. Wack, of Armstrong, Teasdale, Kramer and Vaughan, of St. Louis, Missouri, for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

This appeal arises from an action for damages based on breach of contract and tortious interference with contractual relations. Plaintiffs appeal from the judgment of the circuit court of Williamson County granting defendants’ motion to dismiss the first amended complaint and plaintiff’s cause of action and alternative motion for judgment on the pleadings. The trial court entered judgment in favor of defendants and against plaintiffs on all counts of the first amended complaint.

Plaintiffs’ first amended complaint alleges that in January 1977 defendant Adams Resources and Energy, Inc. (Adams), agreed in principle with Buddie Morris to form a joint venture, Morris Coal Company, now known as defendant, Classic Coal Company (Classic), for the purpose of developing and operating an underground mine in Williamson County, Illinois. The complaint further alleges that Adams then wrote to plaintiff, Mineral Resources, Inc. (Mineral), requesting Mineral to secure long-term coal supply contracts between the joint venture and third parties. This request was addressed to plaintiff, Hugh B. Lee, Jr., in his capacity as president of Mineral and was dated February 15, 1977. This writing set forth Adams’ agreement to provide a commission of 3% of the selling price of coal sold under a long-term supply contract secured through the efforts of Minerals.

The February 15, 1977, letter stated, in pertinent part, that:

<<*** y¡q agree and will likewise cause the producing company to agree to the following with respect to Mineral Resources sales agency:
(1) Mineral Resources shall receive a commission of 3% of selling price of coal sold under the long-term contract, F.O.B. trucks at the mine.
(2) Mineral Resources shall receive 3% of the F.O.B. trucks selling price for any long-term contracts ***.
(3) The commissions will be paid monthly to Mineral Resources within five days of receipt of remittance from the customers.
(4) Mineral Resources will be responsible for administering the contract and other sales on which it receives commission, at its expense.
(5) Mineral Resources will exert its best effort to achieve highest obtainable sales prices consistent with market competition, coal quality and preparation and the desire to optimize production level and maximize profits.
(7) Adams will cause the producing company to fully support Mineral Resources’ marketing efforts on its behalf and faithfully perform its producer responsibilities.”

The complaint further alleged that Mineral, acting through Lee and plaintiff, C. Harry Foster, successfully negotiated two separate long-term coal supply agreements between Classic and the Tennessee Valley Authority (TVA) known as the “T-12” and “T-14” contracts. Under the terms of the two contracts, TVA agreed to purchase 4,060,000 tons and 4,202,600 tons of coal during the duration of the respective contracts.

After the supply contracts had been negotiated by Mineral and were executed by Classic and TVA, Classic signed and Mineral, Lee and Foster countersigned a letter from Classic entitled “Letter Agreement Concerning Fees.” this eight-page letter set forth the various rights and obligations between Classic and Mineral, Lee and Foster regarding the payment of certain fees. The provisions of the letter agreement are extensive, but the most relevant portions are the following:

“1. Agency. *** [Classic] agrees that it will not alter its contractual arrangements with T.V.A. for other than sound business reasons and shall not alter such arrangements for the sole or main purpose of reducing the amounts to be paid to the interested Parties hereunder. Except as provided in Paragraph 1, [Classic] shall retain complete flexibility in dealing with T.V.A. and all other parties concerning the Subject Coal Contracts.
2. Consummation Fee. [Classic] hereby agrees to pay to the Interested Parties [plaintiffs], in the manner provided herein and subject to the other provisions hereof, in consideration for the Interested Parties’ assistance in consummating the Subject Coal Contracts an amount equal to 75% of 3% of the gross sales price for FOB the mine involved after adjustments to the price required by the respective contracts for all coal actually paid for by T.V.A. under either of the Subject Coal Contracts. The fee described in this Paragraph 1 shall be referred to herein as the ‘Consummation Fee.’
* * *
4. Duration of Consummation Fee Payments. [Classic] agrees to make payments of the Consummation Fee in the manner provided herein so long as payments for coal delivered are made to [Classic], its successors and assigns pursuant to the Subject Coal Contracts; provided, however, the parties recognize that it is not unusual for agreements like the Subject Coal Contracts to be amended or altered in connection with other arrangements to be made with T.V.A. and, in this regard, if [Classic] (i) alters its contractual arrangements with T.V.A. in such a way as to terminate the Subject Coal Contracts or reduce quantities of coal to be delivered to T.V.A. under the Subject Coal Contracts, and (ii) makes contractual or other arrangements with T.V.A. which cover the quantities of coal originally covered by the [Classic] No. 5 Contract and [Classic] No. 6 contract, [Classic] will continue to pay the Consummation Fee with respect to the altered arrangements of such quantities of coal originally covered by such contracts. In the event that deliveries of coal are not made under the Subject Coal Contracts or T.V.A. does not make payments under the Subject Coal Contracts, the obligation to pay the Consummation Fee shall arise only upon receipt of, and shall apply only to, the amounts paid by T.V.A.
* * *
6. Operations. The parties to this Letter acknowledge that the Interested Parties have performed services in consideration for the receipt of the Consummation fee payments and [Classic] recognizes its good faith obligation hereunder to pay such Consummation Fee after receipt of payments by T.V.A. under the Subject Coal Contracts. Except as provided in Paragraph 1, nothing in this Letter shall ever be construed to limit in any way the methods of operation in the coal mining business to be employed by [Classic]. Nor shall this Letter be construed to limit [Classic] in any way from dealing with T.V.A. and other parties concerning the Subject Coal Contracts and performance thereunder. [Classic] shall have complete flexibilities in conducting its business and shall perform its obligations pursuant to this Letter.”

Plaintiffs alleged that Classic delivered coal to TVA pursuant to the two supply contracts until 1981. During this period, plaintiffs regularly received their commissions of 3% of the selling price of the coal delivered to TVA. In June 1981, Classic announced that because of its substantial economic losses incurred in these mine operations, it had decided to cease its production of coal and was no longer in a position to supply coal under the T-12 and T-14 contracts. Classic also ceased making commission payments to plaintiff at this time.

After several months of nondeliveries, TVA notified Classic that TVA would not accept any further deliveries of coal under the supply contracts. Plaintiffs demanded payment of the commissions in respect to coal contracted for but undelivered and certain coal that had been delivered to TVA but as to which plaintiffs had not received commission payments. Adams also refused either to make such payments or cause Classic to make the payments.

Plaintiffs filed suit against Adams and Classic in the circuit court of Williamson County. In their four-count complaint, plaintiffs demanded from defendants the sum of $6,698,206.77, an amount which plaintiffs maintain represents the total fees plaintiffs would have received had Classic delivered coal over the balance of the two TVA contracts. TVA was not a party to this action.

Defendants responded by filing a motion for judgment on the pleadings or, in the alternative, a motion to dismiss for failure to state a claim upon which relief could be granted. The trial court granted defendants’ motions and entered judgment in favor of defendants from which plaintiffs now appeal.

The question to be resolved on appeal is whether the trial court properly dismissed plaintiffs’ cause of action. It is well settled that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 395 N.E.2d 549.) Exhibits attached to the complaint become part of the pleadings and facts stated in such exhibits are considered the same as having been alleged in the complaint. Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 371 N.E.2d 173.

In order to determine the sufficiency of plaintiffs’ complaint, it is necessary to examine the allegations of the several counts. This examination should be conducted within the framework of what we perceive to be the basic issues: whether Classic is liable to plaintiffs for the payment of fees on undelivered coal contracted for under the TVA contract, whether Adams is liable for Classic’s failure to perform under the TVA contracts and its refusal to continue paying commissions and whether the complaint states a claim for tortious interference with contractual relations.

The first issue which we will address concerns Classic’s obligation to pay Mineral commissions in accordance with the March 2, 1978, letter agreement concerning fees. In count II, which is directed solely against defendant Classic, plaintiffs assert the right under the terms of the letter agreement concerning fees to “3% of the gross sales price F.O.B. mine of all coal sold pursuant to the contracts.” Plaintiffs allege that Classic breached the T-12 and T-14 long-term supply contracts with TVA and ceased paying commissions. Plaintiffs further allege that Classic is liable to them for the payment of fees on all undelivered coal tonnage Classic agreed to deliver to TVA.

The thrust of defendant Classic’s argument is that it is not obligated to pay plaintiffs any commissions under the letter agreement concerning fees for coal which has not yet been delivered or paid for by TVA. In support of this position, defendant contends that the letter agreement concerning fees is a divisible or severable contract which imposes a duty to pay commissions to plaintiffs only upon the consummation of each separate coal sale to TVA. Plaintiffs, on the other hand, maintain that the letter agreement was an installment contract because the parties’ obligations were not apportioned into equivalent parts.

Where a contract is severable, only apportionable parts that are performed need be compensated. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299.) The question of whether a contract is entire or severable is determined largely by the intention of the parties as manifested by the specific terms of the contract. Keeshin v. Levin (1975), 31 Ill. App. 3d 790, 334 N.E.2d 898.

The letter agreement concerning fees is not a true divisible or severable contract as defendant asserts because plaintiffs’ obligations cannot be readily apportioned with defendants’ commission payments. Plaintiffs substantially performed their obligation under the agreement when Mineral secured the long-term coal supply contracts with TVA. Classic’s obligation to pay commission, by contract, was to be performed over an extended period and was divided into periodic installments. Although the letter agreement is not a divisible or sever-able contract, we do not believe that this fact is of significance in determining Classic’s liability in light of certain provisions of the agreement discussed in detail below.

The second argument presented by Classic is that it had no obligation to pay plaintiffs any commissions for coal which was not paid for or delivered because the. actual sale of the coal was a condition precedent to defendant’s duty to pay the commissions. Plaintiffs contend that such a condition precedent was waived or excused because defendants were responsible for the nonoccurrence of the condition precedent. Specifically, plaintiffs maintain that under the doctrine of “excused condition precedent” Classic’s receipt of payment from TVA did not occur because Classic breached its supply contracts with TVA. This breach, plaintiffs argue, excused the actual consummation of the coal sale to TVA as a condition precedent to Classic’s duty to pay a commission to plaintiffs.

A party who deliberately prevents the fulfillment of a condition on which his liability under a contract depends cannot take advantage of his own conduct and claim that the failure of the fulfillment of the condition defeats his liability. (Barrows v. Maco, Inc. (1981), 94 Ill. App. 3d 959, 966, 419 N.E.2d 634, 639.) Plaintiffs contend that Classic should not be allowed to claim nonperformance of the condition precedent, the consummation of the sale, because Classic was responsible for its nonoccurrence by terminating the TVA contracts. Although we find no fault with plaintiffs’ general statements of law, we cannot agree with plaintiffs’ application of these rules to the particular facts of this case.

In support of their position, plaintiffs cite numerous cases which concern the recovery of commissions by a broker who has rendered assistance in finding a ready and willing buyer. In a typical case, the court stated the accepted rule that where the agreement provides that the seller will pay a commission on the consummation of the sale, he cannot avoid liability by refusing to comply with the contract when a purchaser was ready to consummate the sale. Goldstein v. Rosenberg (1947), 331 Ill. App. 374, 73 N.E.2d 171.

The authority presented by plaintiffs is readily distinguishable from the present case in that those cases involve a single transaction in which a broker was to receive a commission payable out of the proceeds of the sale or upon actual consummation of the sale. In the instant case plaintiffs were to receive commissions from a series of coal sales between Classic and TVA. This obligation to make periodic commission payments, however, was contingent upon the continuing business relationship between Classic and TVA. Despite this contingency, the agreement between plaintiffs and Classic for the payment of commissions did not require Classic to continue to supply coal under its contracts with TVA. Without such a duty imposed by the terms of the agreement, the nonperformance of the condition may not be excused. See Restatement (Second) of Contracts sec. 245 (1979).

The excused condition precedent argument advanced by plaintiffs is inapplicable to the circumstances of the present case because of the clear language used by the parties in their agreement. In paragraph four of the letter agreement concerning fees, the parties expressly made Classic’s payments of the consummation fee contingent upon its receipt of payments from coal delivered to TVA. Paragraph four specifically provides that, “[i]n the event that deliveries of coal are not made under the Subject Coal Contracts, the obligation to pay the Consummation Fee shall arise only upon receipt of, and shall apply only to, the amounts paid by T.V.A.”

Additional language in the letter agreement concerning fees establishes that the parties considered the possibility that the supply contracts might be terminated. In paragraph six the parties provided that Classic would have flexibility in its dealing with TVA. This section states in pertinent part that, “[n]or shall this letter be construed to limit [Classic] in any way from dealing with T.V.A and other parties concerning the Subject Coal Contracts and performance thereunder.” This paragraph goes on to state that Classic “shall have complete flexibility in conducting its business.”

Classic’s flexibility in its business dealings is limited by language of paragraph one which states that Classic will not alter its contractual arrangements with TVA for the “sole or main purpose of reducing the amounts to be paid to [Mineral] hereunder.” Such a purpose, however, was not alleged in the complaint and thus need not be considered here. Another potential restriction on Classic can be found in paragraph four which provides that plaintiffs maintain the right to receive future fees in the event that Classic makes other arrangements with TVA regarding coal covered by the original supply contracts. This restriction, however, is also inapplicable because alternative arrangements were never made.

The rights of the parties to a contract are governed by its terms. (Kohenn v. Plantation Baking Co. (1975), 32 Ill. App. 3d 231, 336 N.E.2d 491.) A court may not rewrite a contract to suit one of the parties but must enforce the terms of the contract as written. Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 398 N.E.2d 103.

by the clear and unambiguous language of the letter agreement concerning fees, plaintiffs’ right to receive commissions was contingent on the delivery and payment for the coal by TVA. The agreement does not distinguish between coal undelivered because of Classic’s fault or for any other reason, and it is not within the province of the court to draw such a distinction. We believe that the flexibility which Classic is permitted in its dealings with TVA places the risk of nonperformance on plaintiffs. Any other construction would contravene the express terms of the agreement and would allow plaintiffs an undeserved windfall recovery. Consequently, we find that Classic had no obligation to pay commissions on undelivered coal and therefore count II which sought to impose such liability was properly dismissed.

The second issue for review is whether defendant Adams is liable for Classic’s nonperformance of the TVA contracts and its failure to pay plaintiffs’ commissions. Plaintiffs contend in two counts based on two separate documents that Adams was responsible for Classic’s continued payment of commissions. The merits of each count will be addressed individually with regard to the particular documents from which the allegations arose.

Count I is directed solely against Adams and is based upon the alleged breach of the February 15, 1977, letter agreement executed by Mineral and Adams (the 1977 letter). Plaintiffs alleged that under the terms of the 1977 letter, if Mineral secured a long-term supply contract, Adams would cause Mineral to be paid a commission of 3% of the selling price of “all coal sold pursuant to such long-term supply agreement and any coal sold pursuant to such other long-term coal supply agreements as Mineral might secure.” Plaintiffs further alleged that Mineral secured two such contracts which were performed by TVA. In addition, plaintiffs alleged that Adams breached the 1977 letter agreement with Mineral by failing and refusing to cause Classic to further perform the TVA contracts.

Defendants contend that the trial court properly dismissed count I for any of three separate reasons. The grounds for dismissal stated by defendants are: The 1977 letter is unenforceable for lack of mutuality of obligation, no actionable breach of the agreement is alleged and the agreement was explicitly superseded or terminated by a later instrument. Although defendants present persuasive arguments on all three points, we need only address the second of defendants’ three contentions.

Plaintiffs contend that the 1977 letter requires Adams both to pay Mineral its commissions and to cause Classic to perform fully its obligations under the supply contracts. The 1977 letter contains three provisions which deal with commissions. They state, in pertinent part, as follows:

“(1) Mineral Resources shall receive a commission of 3% of selling price of coal sold under the long-term contract, F.O.B. trucks at the mine.
(2) Mineral Resources shall receive 3% of the F.O.B. trucks selling price for any long-term contracts ***.
(3) The commission will be paid monthly to Mineral Resources within five days of receipt of remittance from the customers.”

The language of the above paragraphs, we believe, contemplates a continuing business relationship in which Mineral is to be paid commissions only upon consummation of a particular sale of coal. The inclusion of the terms “coal sold under the long-term contract” in paragraph one reinforces the conclusion that Mineral’s right to receive commission payments was contingent upon the delivery and payment of coal under the supply contracts. Until the occurrence of the stated contingency, Adams had no obligations under the 1977 letter with respect to the payment of commissions.

Plaintiffs’ contention that Adams breached the 1977 letter by failing to cause Classic to perform its obligations under the supply contracts is based on paragraph seven which states that:

“[Adams] will cause the producing company to fully support Mineral Resources’ marketing efforts on its behalf and faithfully perform its producer responsibilities.”

Although the 1977 letter does not define “producer responsibilities,” we do not believe that Adams had an obligation to cause Classic to perform under the supply contracts. As previously mentioned, Mineral was not entitled to commissions for the executory portion of its agreement with Classic because the actual sale of the coal was a condition precedent to the payment of commissions. Classic did not have any obligation to Mineral to continue performing under the supply contracts and, therefore, Adams had no duty to cause Classic to perform its “producer responsibilities.”

Our review of the 1977 letter discloses that its provisions do not afford a basis for plaintiffs’ breach of contract action. Accordingly, we find that count I was properly dismissed.

In count III, plaintiffs alleged that Adams breached an agreement with Mineral to cause Classic to pay commissions. The basis for this allegation is a one-page letter dated February 7, 1978 (the 1978 letter), which states, in pertinent part:

“The undersigned controlling shareholder [Adams] of [Classic] hereby consents and agrees to the foregoing Letter [agreement concerning fees] and further agrees that such Letter shall supersede the letter agreement dated February 15, 1977, between the undersigned and Mineral Resources, Inc., and any other prior agreement between the undersigned and any of the signatories hereto relative to the Subject Coal Contracts. The undersigned will use its best efforts to cause [Classic] to perform all of its obligations under such letter.”

Plaintiffs alleged that the 1978 letter was delivered to Mineral at the same time the letter agreement concerning fees was executed and that plaintiffs have demanded that either Adams pay or cause Classic to pay the commissions due them. Plaintiffs further alleged that Adams breached its obligations by failing and refusing either to pay or use its best efforts to cause Classic to pay such commission.

After reviewing the 1978 letter, we are unable to say that count III states a claim based on breach of contract. We reach this conclusion based on the fact that Adams’ liability under the 1978 letter necessarily depended on Classic’s duty to perform its obligations under the letter agreement concerning fees. Where Classic had no obligations to perform because of the nonoccurrence of a stated contingency, Adams similarly had no duty to cause Classic to perform such obligations. Count III, therefore, was properly dismissed.

The final issue presented on appeal is whether the complaint states a cause of action for intentional interference with contractual relations. In count IV, plaintiffs allege that defendant Adams “without right, justification, privilege, or provocation” induced Classic to terminate deliveries of coal under the T-12 and T-14 contracts and caused Classic to breach its obligations to pay commissions under the letter agreement concerning fees.

The essential elements of tortious interference with contractual relations which are necessary to state a cause of action are existence of a valid contract, the intentional and unjustified inducement of a party to breach his contractual obligations, and the proximate incurring of damage from the breach. (Bolger v. Danley Lumber Co. (1979), 77 Ill. App. 3d 207, 395 N.E.2d 1066.) We believe that count IV of the amended complaint may be disposed of on the ground that there is no breach of contract. In the instant case, Classic did not have an obligation to pay commissions for coal which was neither paid for nor delivered. Consequently, Adams cannot be held liable for inducing a breach which never occurred, and thus plaintiffs’ cause of action based on tortious interference with contractual relations was properly dismissed.

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

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


text:
      In re MARRIAGE OF CONNIE J. (SIMMONS) HEADY, Petitioner-Appellant, and L. DUANE HEADY, Respondent-Appellee.
    Fifth District
    No. 82-494
    Opinion filed June 9, 1983.
    Robert E. Cummins, of Kidwell, Cummins & Bast, of Mattoon, for appellant.
    Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

This appeal is taken from the judgment of the circuit court of Jasper County dismissing Connie J. (Simmons) Heady’s complaint for dissolution of her marriage to L. Duane Heady. The complaint was dismissed on the ground that an earlier divorce decree granted to Duane Heady barred the present proceeding.

Duane Heady originally obtained a decree of divorce in the circuit court of Crawford County on August 29, 1977. The court also approved a property settlement which had been prepared and signed by the parties in advance. Although Connie had entered her appearance in the cause and was represented by counsel in preparing the settlement, neither she nor her attorney were present at the August 29 hearing.

On August 21, 1981, Connie filed for dissolution of her marriage to Duane Heady in Jasper County, alleging that the earlier decree was void because neither party was a resident of Crawford County as required by section 5 of the Divorce Act then in effect. (Ill. Rev. Stat. 1975, ch. 40, par. 6.) That section provided that venue will lie for a divorce proceeding only in the county where the husband or wife resides. Duane moved to dismiss the complaint on the grounds that the earlier decree barred the dissolution action. The circuit court of Jasper County allowed the motion and Connie appealed.

Connie argues on appeal that the venue provision of the prior divorce law (Ill. Rev. Stat. 1975, ch. 40, par. 6) has been consistently held by the courts to be a jurisdictional requirement that cannot be waived by the parties. Because it is undisputed that neither party was a resident of Crawford County, she asserts that the court was without subject matter jurisdiction and accordingly that the decree is void and unenforceable.

Duane argues that section 104 of the new Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1981, ch. 40, par. 104), which became effective October 1, 1977, is controlling. The language of former section 5 was changed in section 104 to provide explicitly that venue in dissolution proceedings is not jurisdictional. (Ill. Rev. Stat. 1981, ch. 40, par. 104.) He claims that the General Assembly must have intended to validate any divorce decree entered before October 1, 1977, that did not meet the venue requirements of former section 5. He asks this court to hold that the August 29 decree is validated retroactively by section 104 or that the decree is of full force and effect as of October 1, 1977. In the alternative, Duane argues that Connie should be estopped from challenging the decree because she has accepted the benefits of the property settlement attendant thereto.

The parties agree, and we acknowledge, that the supreme court has historically interpreted section 5 (Ill. Rev. Stat. 1975, ch. 40, par. 6) to be jurisdictional. It has held that residence in the county where the proceeding is brought is necessary to confer jurisdiction on the court and that jurisdiction cannot be waived or conferred upon the court by consent of the parties. (People ex rel. Bradley v. McAuliffe (1962), 24 Ill. 2d 75, 179 N.E.2d 616; Dean v. Dean (1943), 381 Ill. 514, 46 N.E.2d 59; Becklenberg v. Becklenberg (1907), 232 Ill. 120, 83 N.E. 423.) The rule derives from the fact that divorce actions were unknown to the common law. Courts were considered to have no inherent equity power in divorce actions but were strictly limited to their statutory grant of power. (Clubb v. Clubb (1949), 402 Ill. 390, 400, 84 N.E.2d 366, 371.) Since section 5 did not provide for waiver of venue, jurisdiction was limited to cases where one party was a resident of the county where the proceeding was instituted. The rule has recently been cited by the supreme court in Galvin v. Galvin (1978), 72 Ill. 2d 113, 378 N.E.2d 510, and has been followed by the appellate court. Farah v. Farah (1975), 25 Ill. App. 3d 481, 323 N.E.2d 361; Chrastka v. Chrastka (1971), 2 Ill. App. 3d 722, 277 N.E.2d 729.

However, a careful review of the statutes and case law leads us to conclude that the Crawford County decree is valid and the complaint for dissolution in Jasper County was properly dismissed.

We find the supreme court decision in People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, helpful to the analysis of the issue presented. Defendant Gilmore entered a guilty plea to and was convicted on three counts of forgery. On appeal he argued that the information was insufficient to charge the forgery offense because the name of the payee of the check had been omitted. Although the appellate court expressed a strong reluctance to reverse the conviction on this ground, since the record clearly established that defendant had negotiated the check by pretending to be the payee, it felt compelled to do so by early decisions of the supreme court which consistently held that an information must adequately charge an offense to confer subject matter jurisdiction on the court. Jurisdiction could not be waived and the defect could be raised for the first time on appeal. People v. Gilmore (1975), 28 Ill. App. 3d 130, 135, 328 N.E.2d 53, 57.

The supreme court reversed and reinstated the conviction. The court acknowledged its earlier decisions relied upon by the appellate court but held, in light of current statutory and constitutional provisions, that subject matter jurisdiction is not conferred upon the circuit courts by an information or indictment but by the constitution of the State. People v. Gilmore (1976), 63 Ill. 2d 23, 26, 344 N.E.2d 456, 458.

Similarly, we believe that county residence of the parties in a dissolution proceeding should not be required to confer jurisdiction on the court. We believe that the supreme court would not now follow these cases that apparently treated the question as one of jurisdiction. We note in support of our decision that venue generally is not jurisdictional and can be waived (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104), and we emphasize that the new Act (Ill. Rev. Stat. 1981, ch. 40, par. 104) specifically provides that venue is not jurisdictional.

In addition, we are reluctant to find the original decree void because of the four-year span during which neither party challenged the validity of the divorce. We note that in no other case where venue has been held to be jurisdictional, did the parties fail to challenge the decree for such a lengthy period. In the other cases, the lack of venue was challenged at trial or immediately upon appeal. (See Galvin v. Galvin (1978), 72 Ill. 2d 113, 378 N.E.2d 510 (venue challenged by special appearance in trial court and pursued on appeal).) When an immediate challenge is made the parties are well aware that their affairs have not been finally settled, and they can conduct their lives accordingly. In direct contrast, the present case presents the unusual situation where both parties acted in belief that the August 1977 decree was valid. Connie accepted the benefits of the property settlement including alimony in gross and numerous marital possessions. Duane received the marital home but incurred all the debts of the marriage and the mortgage on the home. Any decision made contrary to the August 1977 decree would clearly cause substantial difficulty for both parties and since Connie has accepted the benefits of the decree, we find her decision to contest it at this late date unacceptable. Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614; Kissin v. Kissin (1961), 29 Ill. App. 2d 126, 172 N.E.2d 635.

Finally, we think it is important that the new Act has addressed these same concerns. Section 102 (Ill. Rev. Stat. 1981, ch. 40, par. 102) calls for a liberal construction of the Act to effectuate several stated purposes of the Act, including promoting the amicable settlement of disputes and mitigating the potential harm to spouses caused by dissolution. (Ill. Rev. Stat. 1981, ch. 40, pars. 102(3), (4).) To allow relitigation of a four-year-old divorce decree serves no statutory purpose and instead jeopardizes the settlement already made and prolongs the possible mental harm to the parties that could be caused by such an uncertainty.

Therefore, we affirm the judgment of the circuit court of Jasper County dismissing the complaint for dissolution.

Affirmed.

JONES and WELCH, JJ, concur.


author: PRESIDING JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE CITY OF PEORIA, Plaintiff-Appellee, v. CLARENCE W. KEEHNER et al., Defendants-Appellants—(The Township of Medina et al., Intervening Appellants).—THE CITY OF PEORIA, Plaintiff-Appellee, v. COMMERCIAL NATIONAL BANK OF PEORIA, Trustee, et al., Defendants—(The Township of Medina et al., Intervening Appellants).
    Third District
    Nos. 82-202, 82-167, 82-172, 82-118, 82-181 cons.
    Opinion filed June 3, 1983.
    HEIPLE, J., specially concurring.
    Jack Cassidy, of Cassidy & Mueller, and Kehr Law Offices, P.C., both of Peoria, for appellant Chillicothe Township Park District.
    Tim Bertschy, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant Township of Medina.
    Anthony P. Corsentino, Ltd., of Peoria, for appellants Clarence W. Keehner and Leona Mae Keehner.
    Tim Swain, Beth Johnson, David L. Thomas, and Eric Margolis, all of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This appeal arises out of condemnation proceedings filed by the city of Peoria for the purpose of acquiring 495 acres of land outside the boundaries of the city for park and recreation purposes.

In 1977 the city of Peoria and the Pleasure Driveway and Park District of Peoria entered into an intergovernmental cooperation agreement whereby the city agreed to use its powers of condemnation to acquire certain land north and east of the city and to convey the land to the Peoria Park District for development and operation as an extension of Robinson Park. Although Robinson Park was totally within the boundaries of both the city and the park district, the 495-acre tract to be condemned was all outside the boundaries of both the city and the park district and was neither contiguous nor adjacent to the city borders. The property in question is located within Medina Township and Chillicothe Township Park District, and is partly bluff land, partly productive farm land.

After the condemnation action was filed Medina Township and Chillicothe Township Park District were allowed to intervene. The landowners and the interveners filed motions to dismiss and traverses. Following a 10-day evidentiary hearing, the trial court ruled that the city had the authority to bring these condemnation actions, and motions to dismiss were denied. Subsequently a jury trial was held to fix compensation for the land to be taken. The jury awarded $334,318.80 to the Keehners for their land. No appeal is taken from the amount of compensation. Instead, the owners and the intervenors have perfected this appeal from those orders of the trial court denying the motions to dismiss the petitions for condemnation.

Although the appellants advance a number of arguments in support of their contention that these condemnation actions should have been dismissed, we believe the determinative issue is whether the city has authority to condemn land outside its boundaries under either its general home-rule powers or under section 11 — 95—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 95—1), or both, in the absence of a referendum.

In its amended petition for condemnation the city alleged, inter alia, that it is a home rule unit pursuant to article VII, section 6(a), of the Illinois Constitution of 1970 and may exercise any power and perform any function pertaining to its government and affairs; that this petition is brought pursuant to the authority granted under section 11 — 95—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 95—1), and the city’s general home rule powers; that section 11 — 95—1 authorizes the city to acquire and develop land within or beyond its corporate boundaries for playgrounds and recreational centers; and that the land to be condemned is necessary for a recreational center which the city seeks to construct for the residents of the city and surrounding area.

The general power of a municipality to condemn property contained in section 11 — 61—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 61—1) provides as follows:

“The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality.”

Obviously, this section does not specifically authorize municipalities to condemn lands beyond their borders for park or playground purposes. The city contends that the broad grant of power under section 11— 61 — 1, when considered together with the authorization for extraterritorial condemnation for playground and recreation center purposes contained in section 11 — 95—1 of the Illinois Municipal Code, is sufficient to permit a home-rule municipality to engage in extraterritorial condemnation for the desired purpose without a referendum.

Section 11 — 95—1 of the Illinois Municipal Code provides in part as follows:

“The corporate authorities of every municipality with a population of less than 500,000 may dedicate and set apart for use as playgrounds, or recreation centers, any land or buildings which are owned or leased by the municipality and are not dedicated or devoted to another and inconsistent public use. Such a municipality, in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality, may acquire or lease land or buildings, or both, within or beyond the corporate limits of the municipality, for playgrounds and recreation centers. *** But no land or buildings shall be so acquired or leased for a playground or recreation center nor shall any appropriation be made for the acquisition *** of a playground or recreation center unless the question of such acquisition or appropriation has been *** submitted *** to the voters at an election in the municipality *** and a majority of the votes cast on the proposition were or are in favor of that action.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 95—1.)

This statute permits extraterritorial acquisition of land for playground and recreation center purposes by municipalities but only after referendum approval by the voters of the municipality. No referendum was held in the case at bar.

The city argues that a home rule unit need not hold a referendum prior to exercising a function pertaining to its government and affairs and that authorization by ordinance adopted by the city council here was sufficient.

The grant of powers to home rule units in section 6(a) of article VII of the 1970 Illinois Constitution states that “a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.”

However, for obvious reasons, the requirement that the home rule powers must pertain to the government and affairs of the municipality was intended to restrict home rule powers to local subjects, not those of State or regional concern. (See Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L. F. 137, 153.) And the language of the constitutional provision has been held “not to confer extraterritorial sovereign or governmental powers directly on home-rule units,” but rather “that whatever extraterritorial governmental powers home-rule units may exercise were to be granted by the legislature.” City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 485, 338 N.E.2d 19, 21.

City of Carbondale v. Van Natta involved an attempt by the city to enforce its zoning ordinance against persons residing outside the city limits but within V-k miles of its boundary. The supreme court held that the home-rule provisions of the constitution did not give the city extraterritorial zoning powers and that such authority could only come from the legislature. The court specifically distinguished extraterritorial acts which are proprietary in nature from those acts which are governmental. The acquisition of land beyond the municipal boundaries by purchase or gift was said to be an act of a proprietary nature and thus within the home-rule powers of a municipality, but the power to exercise rights of sovereignty over such property is not within the constitutional grant of home-rule powers. (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 391 N.E.2d 807.) The exercise of eminent domain is an attribute of sovereignty and therefore is a governmental power, not a proprietary power. 56 Am. Jur. 2d Municipal Corp. sec. 200 (1971).

The Illinois Supreme Court has recently reaffirmed these principles. In Commercial National Bank v. City of Chicago (1981), 89 Ill. 2d 45, 432 N.E.2d 227, the court had before it a municipal service tax that required nonresident sellers of services to pay and collect a tax even though the service is performed outside the city. The court concluded that the city of Chicago was attempting to give extraterritorial effect to its ordinance and to tax services that have no connection with the city. After restating the rule that the constitution does not give home-rule units extraterritorial governmental powers, the court went on to observe:

“Considering the number of local governmental units in this State, particularly in and around the Chicago area, which possess or could elect to possess home rule powers, it is apparent that unrestrained extraterritorial exercise of those powers in zoning, taxation and other areas could create serious problems. ***. The drafters of our constitution limited the extraterritorial exercise of home rule powers to those exacted by the General Assembly, and the General Assembly has the power to limit the extent of such grants of power as may be necessary.” 89 Ill. 2d 45, 78-79, 432 N.E.2d 227, 243.

The city of Peoria in the case before us argues that a home rule municipality may modify “internal requirements” — such as the statutory requirement of referendum approval contained in section 11— 95 — 1—and may proceed to condemn land outside its boundaries without prior approval by the electors. The city relies upon two cases which held that statutory requirements for referenda did not apply to certain home rule functions. In Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 403 N.E.2d 258, the supreme court held that section 162a of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 643a) providing for a referendum on the establishment of higher or lower tax rate limitations was an unconstitutional limitation on home-rule units. In an earlier case, Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 290 N.E.2d 240, the court held that a pre-1970 statute (Ill. Rev. Stat. 1969, ch. 34, par. 306), requiring that a county hold a referendum before issuing general obligation bonds, was inapplicable to a home-rule county. In Sommer, a home-rule municipality sought to exercise its taxing power which was expressly listed as a home-rule power under section 6(g) of article VII of the 1970 Illinois Constitution. Similarly, the power to incur debt involved in Kanellos is expressly granted in section 6(g). Neither Sommer nor Kanellos involved the extraterritorial exercise of home-rule powers, and neither involved condemnation, and on those grounds, both are distinguishable from the case before us. Furthermore, neither case held that extraterritorial exercise of home-rule powers was exempt from legislative limitation.

We conclude that Commercial National Bank v. City of Chicago and City of Carbondale v. Van Natta are controlling here. We hold that the city of Peoria has only such power to condemn land beyond its boundaries as is granted to it by the legislature, and the legislature has limited that power by a requirement that a referendum be held approving the acquisition of property for playground and recreation center purposes.

We are not unaware that the extraterritorial application of section 11 — 95—1 of the Illinois Municipal Code was challenged in Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217, 296 N.E.2d 336. There a non-home-rule municipality sought to condemn approximately 127 acres of land outside of but immediately adjacent to its corporate limits for the stated purpose of establishing a playground or recreation center. The court upheld the validity of the statutory authorization which permits a municipality to condemn property for playground and recreation center purposes beyond its borders, but expressly noting that a referendum had been held which was favorable. Thus non-home-rule municipalities, such as the village of Deerfield, may condemn land beyond their borders for playground and recreation center purposes by express legislative authority if the voters approve.

This fact becomes important when we consider the decision in Krughoff v. City of Naperville (1977), 68 Ill. 2d 352, 369 N.E.2d 185, where our supreme court said:

“In City of Carbondale v. Van Natta 61 Ill. 2d 483, 338 N.E.2d 19, the court held that although the 1970 Constitution did not confer extraterritorial sovereign or governmental powers on home rule units of local government, a home rule municipality possessed the same statutory powers to zone extraterritorially as non-home-rule municipalities.” (68 Ill. 2d 352, 357, 369 N.E.2d 185, 187.)

The court in Krughoff concluded that it would be immaterial whether the municipality had home-rule power to enact the zoning ordinance being challenged if statutory authority had been granted.

Here we are confronted with an attempt by a home-rule municipality to exercise extraterritorially its sovereign power to condemn land without meeting the referendum requirement of the statute which is its only source of authority for taking land outside its corporate limits. We hold the statute applies with equal force to home-rule and to non-home-rule units, and we therefore conclude that the city of Peoria is without authority to condemn the land which is the subject of this litigation.

The city of Peoria argues that the owners and interveners lack standing to claim that a referendum of city voters was required since those objecting are not residents of the city and would not be entitled to vote in a city election. We consider this issue to have been waived by the city. It was not presented to the trial court and may not be raised for the first time upon appeal.

It is also argued that the city’s proposal to develop a 500-acre park and conservation area does not come within the meaning of the words “playground and recreation center” as used in section 11 — 95— 1 of the Illinois Municipal Code, considered above. We are inclined to agree that the city’s plan seems to stretch the concepts of “playground” and “recreation centers” to unheard of limits, better left to be defined by the legislature, but we need not decide that issue. We have determined that the city failed to conduct the required referendum, and therefore that the city’s petition should have been dismissed. We need go no further in disposing of this appeal.

Accordingly, the judgment of the circuit court of Peoria County is reversed.

Reversed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

specially concurring:

The bottom line of the majority opinion is correct. The city of Peoria should not prevail in this eminent domain proceeding. Thus, the judgment of the trial court must be reversed.

The majority opinion, however, grounds its reversal on the city’s failure to have held a referendum but ignores the core issue of the city’s power to condemn property outside its corporate limits. In this case it should be held that the city lacks the power to condemn. Hence, the question of holding or not holding a referendum would be, under such circumstance, immaterial.

In the instant case, the city of Peoria is attempting to condemn 80 acres of land, ostensibly for the expansion of Robinson Park, which is on the north end of the city. This land is not within the corporate limits of the city. It is located within the Medina Township and the Chillicothe Township Park District, and is partly bluff land and partly productive farmland. The property in question is neither adjacent nor contiguous to the boundaries of the city because it is separated from the city by a 66-acre strip of park owned by the Medina Township.

It is commonly known, though officially unacknowledged, that this acquisition is sought as part of a tax-grab package by the city of Peoria in its continuing efforts to move the city limits north as far as Mossville so as to acquire the Caterpillar Tractor plant in that area for taxing purposes. In this case, the city’s interest in acquiring additional land for park purposes is a thinly disguised subterfuge.

In support of its authority to condemn extraterritorially, the city relies upon section 11 — 61—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 61—1), which provides as follows:

“The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality.”

The city argues that section 11 — 61—1 should be read in conjunction with section 11 — 95—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 95—1), which provides in relevant part as follows:

“The corporate authorities of every municipality with a population of less than 500,000 may dedicate and set apart for use as playgrounds, or recreation centers, any land or buildings which are owned or leased by the municipality and are not dedicated or devoted to another and inconsistent public use. Such a municipality, in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality, may acquire or lease land or buildings, or both, within or beyond the corporate limits of the municipality, for playgrounds and recreation centers.” (Emphasis added.)

Apparently the city argues that the words “*** in such manner as provided by law for the acquisition of land ***” refer to the condemnation power found in section 11 — 61—1; and, thus, the city can condemn land both within and without its boundaries.

There is a basic rule that municipalities do not have powers extending beyond their corporate boundaries except as specifically conferred or necessarily implied by statute. (City of Rockford v. Hey (1937), 366 Ill. 526, 533; City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 485; Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 79.) It appears that section 11 — 61—1 is simply a general statement of a municipality’s authority to condemn property within its own borders. It speaks of an authority to condemn extraterritorially only with regard to streets and highways.

The city, in support of its claim, relies upon the holding in Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217. In that case, the supreme court, despite the compelling reasoning in the dissent of Justice Goldenhersh and joined by Justice Underwood, held that the village of Deerfield had the authority to condemn 127 acres of land lying outside but immediately adjacent to the plaintiff's corporate limits.

The Deerfield holding must be reevaluated: That decision overmled a cogent unanimous opinion of the Second District Appellate Court which had affirmed the dismissal of the lawsuit by the trial judge. (Village of Deerfield v. Rapka (1971), 132 Ill. App. 2d 74.) Ten years have passed since the supreme court rendered its Deerfield opinion. Two members of the majority remain on the court. Two members of the dissent remain on the court. Three members of the court are new members. The rationale of the trial judge, the unanimous appellate court and the two dissenting members of the supreme court compellingly dictate a reconsideration and reevaluation of that 10-year-old decision.

If the supreme court is not to reevaluate its decision in Village of Deerfield, then the situation is one that ought to be addressed by the General Assembly. Otherwise, the people of Illinois could be confronted by the spectacle of cities condemning land for playground and recreational purposes as far removed from the city boundaries as city finances and the geographic limits of the State of Illinois would allow. The possibilities are endless and subject to great abuse. The only limiting factor, theoretically, is financial. Cities ought not be in the business of using eminent domain proceedings to condemn property for playground and recreational purposes outside their corporate limits. The statutes do not permit it. And to the extent that Village of Deer- field purports to authorize such practice, that decision should be reconsidered.

A grant of the power of eminent domain is subject to strict construction against the entity exercising the power since its exercise is in derogation of the rights of the citizen. (Forest Preserve District v. Wike (1954), 3 Ill. 2d 49, 54.) In People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 366, the supreme court noted that there “is a distinction between the right to acquire property outside of its corporate limits and the power to exercise rights of sovereignty over such property.” Examples of the former right are proprietary rights whereby a municipality can acquire property by purchase or lease or gift. Examples of the latter power are the powers to pass zoning laws with extraterritorial effect or to condemn property extraterritorially. The word acquire can have a broad meaning. After reviewing article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11— 1 — 1 et seq.), I can only conclude that the word “acquire” as used in section 11 — 95—1 does not necessarily mean “condemn” as used in section 11 — 61—1.

Where the legislature wished to include the power to condemn within the meaning of the word “acquire,” the legislature has explicitly so stated. Furthermore, where the legislature intended a municipality to have the power to condemn property extraterritorially, this power also has been expressed in the particular section of the Municipal Code. It was observed by the appellate court in Village of Deerfield v. Rapka (1971), 132 Ill. App. 2d 74, 76, rev’d (1973), 54 Ill. 2d 217, that “[t]he Municipal Code of 1961 contains ten articles, three of which (Articles 7, 9 and 11) deal with property acquisition ***48 divisions of these articles deal with property acquisition by municipal corporations. Thirty-five of these specifically delegate to the municipality the power of eminent domain to acquire property. The other 13 divisions, including that in question here, do not make specific reference to the power to condemn.”

The legislature was clearly capable of including the power to condemn in statutes if it so wished. A few examples may prove beneficial: Section 11 — 65—3 provides that “*** city may acquire by dedication, gift, lease, contract, purchase, or condemnation all property *** within the corporate limits of the city, for municipal convention hall ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11-65-3); section 11-68-4 provides that “*** board *** shall select a suitable site *** within or without the city for a stadium *** acquire title *** by accepting a donation or devise or by purchase or condemnation ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 68—4); section 11 — 94—1 provides that “any municipality *** has the power to *** acquire *** natatoriums or swimming pools *** by purchase, gift or condemnation ***” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 94—1); section 11 — 103—2 provides that “every municipality *** may, for airport *** purposes acquire by dedication, gift, lease, contract, purchase or condemnation *** all property *** within and outside the corporate limits ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 103—2.) It is interesting to note that section 11 — 97—2 allows municipalities to establish driveways from the corporate limits of the municipalities to parks owned by the municipality outside its corporate limits. The municipality may “acquire the land *** by purchase, devise or gift, or *** by condemnation ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 97—2.) If the legislature had bestowed upon municipalities a broad power to condemn property extra-territorially for park purposes, there would have been no need for this statute because surely municipalities would have been already empowered to condemn roadway property as part and parcel of the park.

By following the old rules of statutory interpretation that the legislature does not enact surplusage and that expression of one is exclusion of the other, one can only conclude that a municipality’s authority to condemn property is limited to property within its borders unless the authority is set forth in a statute as explicitly as in the statutes discussed above. Section 11 — 95—1 explicitly authorizes a municipality to “acquire” property “beyond the corporate limits.” However, the section does not explicitly include the power to condemn within the statement of authority to acquire. This strongly suggests that the legislature did not intend to authorize a municipality to condemn property extraterritorially for playground purposes.

Section 11 — 95—1 only refers to the right to acquire. property. The section does not explicitly provide for extraterritorial condemnation powers. Authority to condemn property extraterritorially is found in section 11 — 61—1, which authority, as discussed above, is limited to the condemnation of property in unincorporated areas adjacent and contiguous to the municipality where required for street or highway purposes. Therefore, the holding in this case should be that the city of Peoria cannot extraterritorially condemn the subject nonadjacent and noncontiguous property for playground and recreational purposes.