author: PRESIDING JUSTICE STAMOS

text:
    ROBERT F. PERRIN, Ex’r of the Estate of Margaret F. Perrin, Deceased, et al., Plaintiffs-Appellants, v. PIONEER NATIONAL TITLE INSURANCE COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 81 — 1807
    Opinion filed August 3, 1982.
    Pritikin & Sohn, P. C., of Chicago (Alan E. Sohn, of counsel), for appellants.
    Richard T. Franch, Joseph G. Bisceglia, and Jane DiRenzo Segraves, all of Jenner & Block, of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is the second time that the instant case has been before this court. In the original proceedings, plaintiff’s amended complaint was dismissed by the trial court for failure to state a cause of action, and we affirmed. (See Perrin v. Pioneer National Title Insurance Co. (1980), 83 Ill. App. 3d 664, 404 N.E.2d 508.) Plaintiffs returned to the trial court and moved for leave to file a second amended complaint. Plaintiffs now appeal the denial of that motion.

In the original proceedings in this case, plaintiffs sued individually and on behalf of a class of persons similarly situated. The class was defined as persons who bought or sold real estate in Illinois from October 1, 1973, to date and who purchased owner’s title and mortgage insurance from defendant in connection with those transactions. Plaintiffs basically alleged that defendant made and published a customary schedule of title insurance charges which were based upon the amount of title insurance required by the customer, but that during the period of time this schedule was in effect, defendant granted substantial discounts for the purchase of title insurance to builders, contractors and real estate developers. Plaintiffs alleged that the services required by the “builders” were the same or greater than those required by an individual selling real estate but the title insurance premiums paid by plaintiffs were substantially higher than those paid by the customers who received the discount. The thrust of the suit was that this practice gave those persons paying undiscounted premiums a cause of action under section 2 of the Consumer Fraud and Deceptive Business Practices Act (the Act), which proscribes “[ujnfair methods of competition and unfair or deceptive acts or practices *** in the conduct of any trade or commerce.” (Ill. Rev. Stat. 1977, ch. 1211/2, par. 262.) Plaintiffs’ amended complaint was dismissed for failure to state a cause of action, and plaintiffs elected to stand on the complaint and take an appeal rather than to seek leave to amend. This court affirmed the dismissal of the amended complaint, noting that plaintiffs had not alleged sufficient facts to support a determination that the practice was so unfair or had such an anti-competitive effect as to be a violation of the Act. The plaintiffs’ petition for leave to appeal was denied on September 28, 1980. The mandate of this court affirming the judgment of the circuit court was issued on December 3, 1980. On December 18, 1980, plaintiffs moved the trial court for leave to file a second amended complaint. The court denied the motion on June 17,1981, and this appeal followed.

Plaintiffs first contend that the amendment should have been allowed after the filing of the mandate. They argue that when the reviewing court gives no instructions for further proceedings in the lower court, amendment of pleadings is permitted. All the cases cited by plaintiffs in support of this contention involve instances where the reviewing court remanded the case to the trial court for further proceedings. Those cases are inapposite where, as here, the reviewing court affirms the judgment of the trial court without any remand order. The effect of a mandate affirming the judgment of a trial court was explained by our supreme court in Chickering v. Failes (1862), 29 Ill. 294, 302:

“Where the decree is affirmed, in all its parts, the controversy is at an end. In such a case, the Circuit Court has no power to allow amendments of the pleadings, or to alter or change the decree. It can only proceed to have it enforced, according to its terms and conditions.”

Also instructive is People v. Banks (1920), 294 Ill. 464, 128 N.E. 576, where the court held that the appellant was foreclosed from amending his petition for a tax deed in the trial court after the supreme court had affirmed the dismissal of the original petition. The court stated:

“The judgment of this court, being one of affirmance, settled all matters against appellant so far as the petition is concerned. There was no remanding order but simply an affirming order, which left nothing further for the lower court to do in that matter. That proceeding could not be carried further by amending the old petition and having thereon a new hearing.” 294 Ill. 464, 467.

In Dorland v. Steinbrecher (1964), 50 Ill. App. 2d 344, 200 N.E.2d 424, the defendant filed a counterclaim to a suit for execution of a foreign judgment. The counterclaim was dismissed and the dismissal was affirmed on appeal. The defendant filed an amended counterclaim in the trial court. On appeal, the court stated:

“The defendant disregarded the fact that there was no suit pending thereafter and purported to file an amended counterclaim in the trial court. This procedure is a nullity. If the defendant wished to present his counterclaim in amended form, the time to do so was when the circuit court sustained the plaintiffs motion to dismiss. The defendant could then have obtained leave to amend. Instead, he stood by his counterclaim and allowed final judgment to be entered against him, from which he took an appeal. This court in March, 1963, decided the case. There was no remandment, the order was affirmed, and thereby became final. *** ‘Where on appeal a judgment or decree is affirmed in all of its parts, the controversy is at an end.’ 14 ILP, Appeal and Error, section 923.” 50 Ill. App. 2d 344, 348.

Plaintiffs contend that Supreme Court Rule 369(b) (73 Ill. 2d R. 369(b)) authorizes the trial court to entertain a motion for the amendment of pleadings after the dismissal of the pleadings has been affirmed on appeal. The Rule provides:

“When the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court, execution may issue and other proceedings may be conducted as if no appeal had been taken.” 73 Ill. 2d R. 369(b).

Plaintiffs read this rule as authority for the proposition that the posture of this case after the filing of the mandate was the same as if plaintiffs had never elected to stand on their amended complaint and take an appeal from its dismissal. Plaintiffs cite Russell v. Klein (1977), 46 Ill. App. 3d 660, 361 N.E.2d 65, as support for their interpretation of the rule. In that case, the plaintiff obtained a judgment by confession and execution was issued. The defendants subsequently made a partial payment of the judgment. The trial court found that the entire amount of the judgment had been satisfied by an agreement between the parties which had been entered into prior to the payment by the defendants. The plaintiff appealed that finding. After the notice of appeal had been filed, the trial court entered an order requiring the plaintiff to return the amount the defendants had paid on the judgment. The plaintiff also appealed that order, and the appeals were consolidated. The appellate court affirmed the judgment that the agreement had satisfied the plaintiff’s claim but reversed the order for restitution because it was entered after the filing of the notice of appeal, and therefore the trial court lacked jurisdiction. The mandate of the appellate court contained no remand order. After the filing of the mandate, the trial court again ordered restitution of the money, and the plaintiff appealed, contending that the court lacked authority to enter the order because the case had not been remanded. The appellate court held that:

“After the filing of the mandate, the trial court was permitted, under Rule 369(b), to conduct other proceedings related to its affirmance of the order satisfying the judgment. At this point, that phase of the case was before the court as if no appeal had been taken. *** [W]e are of the opinion that the court properly

considered the new petition as an ‘other proceeding’ under Supreme Court Rule 369(b).” 46 Ill. App. 3d 660, 665.

It is clear that the court regarded Rule 369(b) as authorizing whatever proceedings are necessary to enforce the affirmed judgment. The court noted that the principle of law embodied in the rule was enunciated by the supreme court in Watkins v. Dunbar (1925), 318 Ill. 174, 177, 149 N.E. 14, where the court stated that after the filing of the mandate of affirmance, “execution may issue and other proceedings may be had on the original judgment in all respects as if no appeal had been prosecuted.” The rule therefore authorizes only those proceedings which are appropriate after the entry of a final judgment. Pleadings may not be amended after the entry of a final judgment except where it is necessary to amend the pleadings to conform to the proofs presented at trial. (See Ill. Rev. Stat. 1977, ch. 110, pars. 46(1), 46(3).) Plaintiffs’ second amended complaint does not fall within this exception. We therefore hold that the trial court had no authority to allow an amendment of plaintiffs’ amended complaint and that it properly refused to entertain the motion for leave to file the second amended complaint.

Plaintiffs also contend that the prior decision of this court was an “open invitation” to the plaintiffs to amend the pleadings further, and that the “suggestions” of this court as to how the deficiencies of the amended complaint might have been corrected should have been read by the trial court as instructing it to allow plaintiffs to file the second amended complaint. Plaintiffs cite several cases for the proposition that when the mandate of the reviewing court contains no specific instructions as to what further action the trial court should take, the trial court must examine the reviewing court’s opinion in order to determine what further proceedings are proper. The common feature in each of the cited cases is that the reviewing court remanded the case to the trial court for further proceedings. The instant case was not remanded to the lower court but was affirmed in all of its parts. Even where the cause is remanded to the trial court, the trial court is bound to proceed as the mandate, not the opinion, directs it to, unless the mandate instructs the court to proceed in conformity with the opinion. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308, 427 N.E.2d 563.) As previously stated, when the mandate simply affirms the judgment of the trial court, the court may conduct only such proceedings as are consistent with Supreme Court Rule 369(b). Therefore, the contention that the trial court should have adopted the plaintiffs’ reading of the prior opinion in this case and allowed the amendment despite this court’s mandate has no merit.

Plaintiffs also contend that the prior decision of this court has res judicata effect only as to those matters actually alleged in the amended complaint, and that therefore plaintiffs should be free to litigate those new matters which are raised for the first time in the second amended complaint. We need not reach this contention because the issue before us is whether the instant litigation is at an end, not whether new litigation may properly be commenced.

For the reasons set forth herein, the judgment of the trial court is affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

      Rule 369(b) as amended May 28, 1982, effective July 1, 1982, substitutes the words “enforcement of the judgment may be had” for “execution may issue.” 91 Ill. 2d R. 369(b).


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    BRINK’S, INCORPORATED, Plaintiff-Appellee, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0033
    Opinion filed August 3, 1982.
    Rehearing denied September 7, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and Edward R O’Brien, Assistant Attorney General, of counsel), for appellant.
    Thomas G. Lyons, J. Michael Heaton, and Patrick L. Moore, all of O’Keefe, Ashenden, Lyons & Ward, of Chicago, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Does this motor carrier certificate authorize the carrying of armored car commodities?

The ICC said yes.
The circuit court said no.
We agree with the court — the certificate is not that broad.
We affirm.

The Illinois Commerce Commission appeals from the judgment of the circuit court reversing the Commission’s order authorizing Douglas Transit, Inc. (Douglas), to carry armored car commodities.

In 1951, the Division of Motor Carriers of the Department of Public Works and Buildings — acting pursuant to the provisions of the Illinois Truck Act (Ill. Rev. Stat. 1941, ch. 95%, par. 240 et seq.) — issued two certificates of public convenience and necessity to Douglas’ predecessor in interest, Robert Armstrong. One certificate authorized Armstrong as a local carrier and the other authorized Armstrong as a specialized carrier. The certificates limited service to the following commodities and territories:

Local
“[Livestock, farm products, feed, coal, merchandise, furniture and commodities general within a 50 mile radius of the post office of Newman, Illinois and to transport such property to or from any point outside of such authorized area of operation for a shipper or shippers within such area.”
Specialized
“[Livestock, farm products, feed, coal, merchandise, furniture and commodities general to or from any point or points within the State of Illinois.”

Thereafter, the Illinois Motor Carrier of Property Act (Ill. Rev. Stat. 1953, ch. 951/2, par. 282 et seq.) superseded the Illinois Truck Act. In 1955, the Illinois Commerce Commission issued Armstrong a new certificate of public convenience and necessity. This certificate was obtained pursuant to section 9 of the Illinois Motor Carrier of Property Act (Ill. Rev. Stat. 1953, ch. 951/2, par. 282.9). Section 9 was the “grandfather clause” which provided that an applicant holding a certificate under the Illinois Truck Act would be granted a new certificate authorizing the applicant to perform the services authorized and actually performed pursuant to the provisions of the Illinois Truck Act. Armstrong’s grandfather certificate provided for the transportation of the following commodities within the stated territory:

“Livestock, farm products, feed, coal, merchandise, furniture and commodities general within a Fifty (50) mile radius of the Post Office at Newman, Illinois, and to transport such property to or from any point outside of such authorized area of operation for a shipper or shippers within such area; also, livestock, farm products, feed, coal, merchandise, furniture and commodities general to or from any point or points within the State of Illinois.”

This certificate was subsequently transferred to Douglas. In July 1978, Douglas began issuing receipt forms bearing the inscription “Douglas Transit, Inc., Armored Car Division” to several Springfield banks. At the same time, it began submitting proposals to various Springfield area banks for transporting monies, notes, securities, and other valuable properties usually transported in armored vehicles. Shortly thereafter, Brink’s, Inc., and Purolator Security, Inc., filed separate complaints (which were later consolidated) with the Illinois Commerce Commission against Douglas. The Commission granted Douglas’ motion to strike certain paragraphs in the Brink’s complaint which alleged that Douglas lacked the authority to transport armored car commodities.

On an appeal by Brink’s, the circuit court reversed the order of the Commission. However, this court reversed the decision of the circuit court finding that the Commission’s order was, not final and hence not appealable. The case was remanded back to the Commission. Brink’s, Inc. v. Illinois Commerce Com. (1980), 85 Ill. App. 3d 1201 (order under Supreme Court Rule 23).

Thereafter, Brink’s filed an amended complaint which alleged that Douglas had violated the grandfather clause of the Motor Carriers of Property Law and also had abandoned any authority to carry armored car commodities. Counsel for all parties agreed to a stipulation of facts. Among the facts stipulated were:

“That at no time prior to July 7, 1978, with the exception of a one-time solicitation in Champaign, Illinois in 1975, has Douglas Transit, Inc. ever solicited to carry currency, coin, jewelry, precious metals, stocks, bonds, checks and other negotiable and non-negotiable instruments, securities, postage and revenue stamps and other valuable documents, papers and properties of unusual and intrinsic value which are commonly carried in armored vehicles [hereinafter referred to as armored car commodities].
That at no time prior to July 7, 1978 has Douglas Transit, Inc. ever owned, leased, or otherwise had available an armored vehicle, a vault or personnel necessary to transport [armored car commodities].”

The Commission issued an order denying the amended complaint of Brink’s and Purolator and found that Douglas possessed authority as a common carrier of general commodities including armored car commodities. On appeal, the circuit court reversed the decision of the Commission.

The court’s reversal was based on three independent reasons: (1) that the language of the Illinois Truck Act certificates from which Douglas’ certificate was derived could not be read to include authority for armored car commodities under the rule of ejusdem generis-, (2) that there was no actual transportation of any armored car commodities by Douglas’ predecessor operating under the Illinois Truck Act and, therefore, Douglas had no armored car commodities authority by virtue of the grandfather clause of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 305); and (3) that there had never been any transport of armored car commodities by Douglas or its predecessor and, therefore, any such authority which might have existed had been abandoned.

We find that this case may be disposed of on the basis that Armstrong’s certificate did not authorize the carriage of armored car commodities and express no opinion on the other two reasons in support of the circuit court’s judgment.

The Commission’s position is that the phrase “commodities general” in Douglas’ certificate refers to all commodities, so that Douglas is authorized to carry any commodity including armored car commodities. Brink’s maintains that the phrase “commodities general” should be interpreted as only authorizing Douglas to transport all commodities in the class of commodities described by the specific words preceding that phrase under the rule of construction known as ejusdem generis.

The rule of ejusdem generis was explained by the Illinois Supreme Court in Bullman v. City of Chicago (1937), 367 Ill. 217, 226, 10 N.E.2d 961, 965. The court said:

“ ‘It has been repeatedly held by this and other courts, that where general words follow particular and specific words in a statute the general words must be construed to include only things of the same kind as those indicated by the particular and specific words; [citations] and this rule is enforced in the construction of a statute unless there is something in the statute, or its context, which shows that the doctrine of ejusdem generis should not be applied. [Citations.]’ ” (Quoting City of Chicago v. Ross (1912), 257 Ill. 76, 79, 100 N.E. 159.)

The reason for the rule is that if the legislature had intended that the general words apply without restriction, it would have used only “one compendious word.” (People v. Capuzi (1960), 20 Ill. 2d 486, 494, 170 N.E.2d 625, 629.) The application of the rule is not limited to statutes but extends to wills and other instruments. (Capuzi; St. John’s Evangelical Lutheran Church v. Kreider (1977), 54 Ill. App. 3d 257, 369 N.E.2d 370.) The Interstate Commerce Commission has applied the doctrine when interpreting certificates of public convenience and necessity issued to interstate carriers. Petroleum Carrier Corp. v. Black (1950), 51 M.C.C. 717.

The rule is not a rule of mandatory application and must yield when a contrary intent is apparent. However, the Illinois Supreme Court has indicated that the rule is applicable unless a contrary intent is evident. (See Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318; Bullman.) Nothing in the record indicates the rule should not be applied to Douglas’ certificate. The Commission offers no reasonable explanation as to why the Department, if it intended Armstrong to carry all commodities, did not merely employ the “one compendious” phrase “commodities general” instead of listing several particular commodities as it did.

The words “livestock, farm products, feed, coal, merchandise, furniture” in the certificate would be rendered superfluos if the phrase “commodities general” was interpreted to include all commodities. On the other hand, if the phrase is interpreted as including all commodities within the class of commodities described by the particular words, then all the words in the certificate can be given effect. Furthermore, as Brink’s indicates, if Armstrong had authority to carry all commodities, then it had authority to carry such commodities as high explosives, tanks of chlorine, and chemical and radioactive waste products. We find it highly unlikely that, if the Department actually intended Armstrong to carry all commodities, it would have failed to specify these extraordinary commodities while making special mention of such mundane items as feed and furniture.

Brink’s states in its brief that the specific words in Douglas’ certificate describes a “rural general freight service suited to bring the produce of the farm to the town and to carry manufactured goods back to the agricultural communities.” This classification is consistent with the language in the certificate and with the types of commodities actually transported by Douglas prior to its solicitation of armored car commodities. Armored car commodities are not within the class of commodities described by the specific words in Douglas’ certificate and, therefore, are not included by the phrase “commodities general” as that phrase is used in the certificate.

Accordingly, we hold that Douglas’ certificate does not authorize the carriage of armored car commodities.

The judgment of the circuit court is affirmed.

Affirmed.

GREEN, E J., and WEBBER, J., concur.


author: JUSTICE DOWNING

text:
    LAWRENCE LAWLESS, Plaintiff-Appellee, v. THE VILLAGE OF PARK FOREST SOUTH et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81 — 2486
    Opinion filed on rehearing July 27, 1982.

      Judge, Kurnik & Knight, Ltd., of Park Ridge, for appellants.
    Lawrence Lawless, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

A conflict between the general venue provision and a specific venue provision is presented by this interlocutory appeal. (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 101, 2 — 103(a).) We hold that the general provision must prevail in order to prevent a chaotic multiplicity of litigation.

Plaintiff Lawrence Lawless, a resident of Will County, filed a complaint in the circuit court of Cook County alleging causes of action for trespass to land, conspiracy to commit trespass to land, and violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1981, ch. 38, par. 60 — 1 et seq.). According to the allegations of the amended complaint, the property which is involved in this litigation is located in Will County, and is between the villages of Park Forest and Park Forest South.

Defendant Village of Park Forest is a municipal corporation located substantially within Cook County, with its principal office located in Cook County. Park Forest is not a party to this appeal. Defendants Village of Park Forest South and Forest Preserve District of Will County are municipal corporations located in Will County, with their principal offices in Will County. Defendants Charles Notarus and Joe Meredith are officers of the Village of Park Forest South. Meredith is a resident of Will County; Notarus is a resident of Cook County. Defendant Fred Henize is an officer of the Forest Preserve District and resides in Will County. No other defendants are involved in this appeal.

Defendants Village of Park Forest, Village of Park Forest South, Forest Preserve District of Will County, and the officers of these municipal corporations moved for a transfer of venue to the circuit court of Will County. The circuit court of Cook County denied these motions, and all of these defendants, with the exception of the Village of Park Forest and its officer, sought permission for an interlocutory appeal. The circuit court certified two questions for interlocutory appeal under Supreme Court Rule 308 (73 Ill. 2d R. 308), and we granted leave to appeal.

On April 20, 1982, we issued a Rule 23 order vacating the orders of the circuit court denying the motions for transfer of venue. We remanded the cause to the circuit court with directions to determine whether the Village of Park Forest was joined as a defendant in “good faith” as required by section 2 — 101 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101.) On remand, the circuit court took more evidence on the venue issue, and on April 29, 1982, issued a written order containing findings of fact and conclusions of law. The court found that the Village of Park Forest was joined as a defendant in good faith, and again denied the motions for transfer of venue to the circuit court of Will County. On May 11, defendants filed in this court a timely petition for rehearing of our April 20, 1982, decision. Defendants supplemented the record on appeal with the report of the proceedings conducted by the trial court on remand. We granted the petition for rehearing, in the interest of judicial economy, to address the questions originally certified for review by the circuit court.

I

The defendant municipal corporations contend that the circuit court erroneously denied their motions for transfer of venue, arguing that transfer is required by section 2 — 103(a) of the Code of Civil Procedure. Plaintiff contends that the circuit court properly denied the motions based on section 2 — 101 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 101, 2 — 103(a).

Section 2 — 101 is the general venue provision. It fixes venue in either the county of residence of any defendant joined in good faith and with probable cause for the purpose of obtaining a judgment against the defendant, or in a county where part of the cause of action arose. Section 2 — 103(a) grants special treatment to public corporations, including municipal corporations. It provides: “Actions must be brought against a *** municipal *** corporation in the county in which its principal office is located.” (Emphasis added.)

The conflict between these two provisions in the context of the facts of this case is plain. If section 2 — 103(a) is applied, the Will County municipal defendants will be entitled to insist on transfer of venue to Will County, while the Cook County municipal defendant will be entitled to insist on venue remaining in Cook County. The result would be division of this case into multiple cases. Alternatively, if section 2 — 101 is applied, plaintiff will be permitted to proceed in a unified action against all defendants in Cook County.

Defendants Village of Park Forest South and Forest Preserve District of Will County contend that, since they are municipal corporations with principal offices in Will County, they are entitled to transfer of venue to Will County. They argue that the language of section 2 — 103(a) is mandatory, that the specific language of section 2— 103(a) controls over the general language of section 2 — 101, that case law holds section 2 — 101 inapplicable to municipal corporations, and that public policy requires a municipal corporation to be sued in the county where it resides. Plaintiff contends that the circuit court correctly denied the motion for transfer of venue.

We find defendants’ arguments to be unpersuasive. Since this case involves a question of first impression, we must evaluate the ramifications of the alternative contentions. Upon doing so, it is clear that the position urged by defendants would create chaos in the courts. We doubt that the General Assembly intended such a result. Further, we disagree with defendants’ contentions that case law holds section 2— 101 inapplicable to municipal corporations, and that public policy requires a municipality to be sued only in the county where it has its principal office.

As plaintiff correctly notes, acceptance of defendants’ interpretation of section 2 — 103(a) would create judicial chaos. In this case, application of defendants’ theory would lead to two separate cases. Situations can easily be postulated in which far more than two separate cases would have to be created. (See, e.g., Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.) Creation of this multiplicity of actions would add confusion to the litigation process and exacerbate the problem of overcrowded court dockets. See Hoffman v. Bos (1974), 56 Mich. App. 448, 453-54, 224 N.W.2d 107, 110.

The only case law dealing with conflicts between sections 2 — 101 and 2 — 103(a) involves situations in which the defendant municipal corporations all resided in the same county. Winston v. Mitchell (1977), 53 Ill. App. 3d 206, 368 N.E.2d 460, is illustrative. It involved an automobile accident in Richmond Township, McHenry County. The defendants were an individual resident of Cook County, an individual resident of McHenry County, the Township of Richmond, and the County of McHenry. The complaint was filed in the circuit court of Cook County, with plaintiff contending that venue was proper under section 2 — 101 due to the joinder of the individual resident of Cook County.

The appellate court held that venue lay in McHenry County. Relying on the fact that both municipal corporations had their principal offices in McHenry County, the court held that the specific venue provision of section 2 — 103(a) controlled over the general provision of section 2 — 101. The court, citing the Historical and Practice Notes to section 2 — 103(a) (Ill. Ann. Stat., ch. 10, par. 7, Historical and Practice Notes, at 66-67 (Smith-Hurd 1968)), recognized that a problem would exist if multiple defendant public corporations had their principal offices in different counties. See also Harrell v. Board of Trustees (1977), 48 Ill. App. 3d 319, 362 N.E.2d 441; see generally County of Fulton v. Prairie Plan Project (1979), 80 Ill. App. 3d 441, 399 N.E.2d 982.

Relying on 56 Am. Jur. 2d Municipal Corporations sec. 855 (1971), defendants argue that public policy requires that municipal corporations have an absolute right to venue in their home county. The basis of this policy is to allow municipal officials “to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation.” Modern cases have discounted this policy, noting the existence of modern communications and the ease of transportation (Hoffman v. Bos (1974), 56 Mich. App. 448, 453, 224 N.W.2d 107, 110), and stating that “[m]unicipal officers are no different from any other citizens who may be forced to travel in order to defend lawsuits in counties other than where they reside.” (Peaceman v. Cades (1979), 272 Pa. Super. 568, 571, 416 A. 2d 1042, 1044.) These cases have also noted the modern policy against piecemeal litigation due to crowded court dockets. Hoffman v. Bos (1974), 56 Mich. App. 448, 453, 224 N.W.2d 107, 110.

Other jurisdictions with modern venue statutes have held that the right of governmental defendants to insist on venue in their own county is not absolute, and must yield in cases of multiple governmental defendants from different counties. New York has a venue provision similar to sections 2 — 101 and 2 — 103(a) of our Code of Civil Practice (N.Y. Civ. Prac. Law secs. 503, 504 (McKinney 1976)), and has reached this result. (In re Application of Southern Tier Legal Services (1979), 100 Misc. 2d 1068, 420 N.Y.S.2d 591; Coonradt v. Averill Park Central School District (1979), 98 Misc. 2d 516, 414 N.Y.S.2d 242; City of New York v. Town of Colchester (1961), 28 Misc. 2d 426, 212 N.Y.S.2d 667, affd (1962), 16 App. Div. 2d 772, 228 N.Y.S.2d 462.) One court reasoned, “A single action against all the towns and counties affected, in order to avoid multiplicity of actions and inconsistent decisions, obviously serves salutory purposes and should be. encouraged.” City of New York v. Town of Colchester (1961), 28 Misc. 2d 426, 428, 212 N.Y.S.2d 667, 670.

In contrast, Florida venue is governed by the common law rule that in an action against a governmental entity, venue is only proper in the county of the entity’s principal office. (Carlile v. Game & Fresh Water Fish Com. (Fla. 1977), 354 So. 2d 362, 363-64.) Florida courts have rigidly held that where multiple governmental units with principal offices in different counties are joint defendants, each governmental entity is entitled to defend the action in its own county. (See, e.g., State Department of Transportation v. Bromante (Fla. App. 1979), 365 So. 2d 388.) The courts have criticized this rule which causes a multiplicity of litigation, but feel compelled to follow it. See, e.g., Lake County v. Friedel (Fla. App. 1980), 387 So. 2d 514, 515.

We believe the idea that municipal corporations should not have to defend themselves in other jurisdictions must be considered on a case-by-case basis. Modern transportation and means of communication no longer support the principles developed in the horse and buggy age. Therefore, we conclude that defendants’ proposed interpretation of sections 2 — 101 and 2 — 103(a) must be rejected. When multiple public corporations, as defined in section 2 — 103(a), with principal offices in different counties are joined as defendants in a single action, sections 2— 103(a) and 2 — 101 must be read in pari materia (together). In such situations, the “principal office” of a public corporation is equivalent to its "residence” under section 2 — 101. (See Ill. Ann. Stat., ch. 110, par. 7, Historical and Practice Notes, at 67 (Smith-Hurd 1968).) Accordingly, in such a situation, venue is proper in the county of residence of any public corporation joined in good faith. This is especially so when the municipalities and counties are adjoining. Thus, the circuit court properly denied the motions of defendants Village of Park Forest South and Forest Preserve District of Will County for transfer of venue to Will County.

II

It is unnecessary for us to address the second certified question for review, since it is premised upon our reaching the contrary result in section I above.

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

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.

      Effective July 1, 1982, sections 5 and 7(1) of the Civil Practice Act were recodified under the cited statute identification. There was no language change.

      The following are the questions certified for review:
      1. Where three municipal corporations are sued in Cook County and one of the municipal corporations has its principal offices in said county, and two municipal corporations have their principal offices in Will County, are the two municipal corporations located in Will County entitled to change of venue pursuant to section 2 — 103(a) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 103(a)) [formerly section 7(1) of the Civil Practice Act], or may the two foreign municipal corporations be denied a change of venue pursuant to section 2 — 101 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101) [formerly section 5 of the Civil Practice Act], permitting venue in the county of any defendant joined in good faith?
      2. Are officials of a Will County municipal corporation otherwise properly served as individuals in Cook County pursuant to section 2 — 101 * * * entitled to a change of venue in the event that the municipal corporations they represent are also entitled to change of venue pursuant to section 2 — 103(a)?

      We note that the Village of Park Forest, not a party to this appeal, filed a motion to transfer venue to Will County.


author: JUSTICE HEIPLE JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOLIET RAILWAY EQUIPMENT CO. et al., Defendants-Appellants.
    Third District
    No. 81 — 352
    Opinion filed July 8, 1982.
    Rehearing denied September 3, 1982.

      ALLOY, J., concurring in part and dissenting in part.
    Gerald R. Kinney, Arthur T. Lennon, and Roger D. Rickmon, all of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Judith S. Goodie, Assistant Attorney General, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal by a salvage company from an injunction issued against their various business operations. The Attorney General, on behalf of the State, filed a complaint against the defendants seeking injunctive relief and civil penalties for alleged violations of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 1111/2, par. 1001 et seq.). The defendant, Joliet Railway Equipment Company (Joliet), operates a railroad car salvage business with a salvage yard near Rock-dale in unincorporated Will County, Illinois, and a railway car storage area in nearby Crest Hill, Illinois. The defendants, Arthur Pielet, Robert Pielet, and James Pielet are officers and stockholders of Joliet. Defendant Wally Knippenberg was the Rockdale salvage yard manager for Joliet.

The occurrence which precipitated the State’s complaint was a fire at the Rockdale salvage yard during the dismantling of two sulfur tank cars on April 12, 1979. The fire produced sulfur dioxide smoke which carried into the building of a nearby industry, the National Bottle Company. Several National Bottle employees became ill and required medical attention.

The heart of the defendants’ business involves the dismantling of retired railroad tank cars, boxcars, and flat cars with acetylene or propane cutting torches. When in service, the tank cars carried a variety of chemicals.

In its complaint, the State alleged that the defendants’ method of dismantling tank cars caused air pollution and open burning. The State further alleged that the defendants’ entire salvaging operation caused and allowed open burning over the preceding six years. Purportedly, open burning resulted from: the use of cutting torches near combustible materials, the improper storage and handling of combustible materials, and the absence of adequate fire protection facilities.

The Environmental Protection Act (the Act) provides in pertinent part:

“No person shall:
(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act;
* * *
(c) Cause or allow the open burning of refuse, conduct any salvage operation by open burning, or cause or allow the burning of any refuse in any chamber not specifically designed for the purpose and approved by the Agency pursuant to regulations adopted by the Board under this Act; except that the Board may adopt regulations permitting open burning of refuse in certain cases upon a finding that no harm will result from such burning, or that any alternative method of disposing of such refuse would create a safety hazard so extreme as to justify the pollution that would result from such burning.” Ill. Rev. Stat. 1979, ch. 1111/2, par. 1009(a), (c).

Air pollution and open burning are defined in the Act as follows:

“ ‘Air Pollution’ is the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property.” Ill. Rev. Stat. 1979, ch. 1111/2, par. 1003(b).
“ ‘Open Burning’ is the combustion of any matter in the open or in an open dump.” Ill. Rev. Stat. 1979, ch. 1111/2, par. 1003(n).

A seven-day bench trial established that a fire occurred at the Rockdale salvage yard on April 12, 1979. Defendant Knippenberg, the yard manager, and Luis Magna, an employee, testified that the fire occurred during the process of dismantling a railroad tank car. Magna testified the fire was caused, in part, by the fact that a water hose which could have been used to supply water to the fire was constricted by a tanker car which was laying upon it. Upon freeing the hose, the area was sprayed down and the previously visible smoke disappeared. The fire reignited that evening after the employees departed. The fire was finally extinguished by Magna and other employees.

Employees of National Bottle Company, a nearby factory, testified that they suffered dizziness, vomiting, nausea, headaches, and tearing of the eyes on the day the fire occurred. The State’s medical expert, Dr. Meyer, testified such symptons were commonly associated with sulfur dioxide inhalation.

The State maintained that because of a unity of interest between various members of the Pielet family that each of them, individually, should be enjoined from carrying on the proscribed activities under any business name. To this end, the State introduced evidence to establish the ownership of Joliet in the following proportions:

Pielet Bros. Scrap Iron and Metal, Inc. 72%

Arthur Pielet ' 18%

James Pielet 5%

Robert Pielet 5%

Further testimony revealed that 92.5% of Pielet Bros. Scrap Iron and Metal, Inc., is owned by Arthur Pielet with the remaining portion owned by his children and grandchildren. Arthur, James and Robert Pielet are all officers of Joliet as well as Pielet Bros. Scrap Iron and Metal, Inc. Defendant Knippenberg was responsible for buying and selling railroad cars and for establishing the manner in which the cars are dismantled at the Rockdale yard facility for Joliet. Testimony indicated that outside of the Rockdale salvage yard, Joliet stored railroad cars at its siding in Crest Hill. Robert Pielet testified that Pielet Bros., Inc., operated a salvage yard at McCook but that no Joliet operations were performed there.

Evidence was adduced at trial about the general modus operandi of the salvage yard. The evidence indicated that when purchased, many of the tank cars still had chemical residues. These residues, when subjected to the heat from the cutting torches, produced fumes which were often toxic. In the incident that gave rise to this action, Joliet was cutting a tank car which contained sulfur residue.

In dismantling operations, Joliet cut sections of the tank, box and flat cars while wood was part of the car. When the cutting torch was applied to metal, sometimes the wood close to the metal would smolder. If the cutting torch was applied directly to the wood, burning or smoldering would result. Records of the Rockdale Fire Department introduced at trial tended to show that 45 fires occurred over a period of seven years at a “railroad salvage yard, Mound Road.” While Joliet’s Rockdale salvage yard is bounded-on the south by Mound Road, Joliet disputed their responsibility for some of those fires. Testimony indicated the entire region surrounding the salvage yard is heavily industrial. The evidence did not clearly establish defendants’ responsibility for these 45 fires. The State also produced evidence that Joliet burned refuse wood in the open on several occasions. In addition, one of the defendants, Wally Knippenberg, told an ERA investigator that they prefer to burn the wood out of the railroad car undercarriages rather than remove it before cutting the metal as this is a more efficient and less costly method.

After the seven-day trial concluded, the trial court found that the defendants violated the open burning and air pollution prohibitions of the Act in their dismantling of railroad cars. The court found the April 12 incident caused air pollution within the meaning of the Act. Also, the trial court found the Rockdale yard’s fire protection system inadequate. A $10,000 fine was imposed for violations of the Act and a permanent injunction was issued. The court enjoined the defendants from receiving tank cars which contain any chemical residue or combustible material anywhere in Illinois; prohibited them from dismantling any railroad cars with cutting torches anywhere in Illinois unless all combustible material has been removed; prohibited the defendants from causing or allowing open burning anywhere in Illinois; prohibited defendants from using cutting torches at Rockdale yard at any time when no water is available in the yard’s water supply. Mandatory provisions of the injunction ordered the defendants to place all combustible materials removed from the salvaged railway cars at Rockdale yard in noncombustible containers and removed from the yard at least weekly; ordered that railway cars received by the defendants at the Rockdale yard be stored pending dismantling in a certain area designated by the trial court; ordered the defendants to install a proper fence around the liquid oxygen storage tank at the Rockdale yard; ordered the defendants to secure all liquid petroleum gas containers at Rockdale yard to stationary objects; ordered the defendants, within 30 days, to inventory and submit to "the Illinois Environmental Protection Agency a list of all cars in their possession and state specifically the disposition to be made of each car; and ordered the defendants to install within six months a fire protection system according to elaborate specifications set forth by the trial court and within 30 days prior to the commencement of construction of the fire protection system to send to the State and the Rockdale Fire Department written plans describing the location and dimensions of the required water main, hydrant and roadway. The defendants appeal several findings of the trial court and provisions of the injunction as overbroad and not supported by the evidence.

We will not disturb the findings nor the injunctive scheme established by the trial court unless they are shown to be against the manifest weight of the evidence. The mandates of any injunctive action, however, must be a consequence of evidence received at trial. The present injunction goes far beyond the evidence of violations presented at trial. It is well settled that an injunction is never granted as a matter of right, but only in exigent circumstances and then only with judicial restraint and in due continence. (Miollis v. Schneider (1966), 77 Ill. App. 2d 420; 21A Ill. L. & Prac. Injunctions secs. 2 and 11 (1977).) Contrary to these accepted principles, the instant injunction is overbroad and excessive. We reverse and remand it. In so doing, we set forth each paragraph of the injunction for analysis. Paragraph eight of the injunction provides:

“The defendants and each of them individually are permanently enjoined and prohibited from receiving railroad tank cars which contain any chemical residue or other combustible material, whether solid, liquid, or gas, at any location in the State of Illinois, particularly including the Rockdale Yard, the Crest Hill siding and property at Joliet Road and the Indiana Harbor Belt tracks in McCook, Illinois.”

Paragraph nine of the injunction provides:

“The defendants and each of them are permanently enjoined ■ and prohibited from dismantling with cutting torches at any location in the State of Illinois railroad cars of any type, until all combustible materials, particularly including chemical residues and woods, have been removed from said cars. The removal of any combustible materials from railroad cars by the defendants shall be in accordance with all applicable local and state laws.”

Paragraph eight is unreasonable and unnecessary. Evidence tended to establish that air pollution occurred when unclean railroad cars containing chemical residue were subjected to a cutting torch before the chemicals were flushed from the cars. The trial court’s order goes too far when it bars the defendants from receiving railroad cars containing chemical residue. After all, it is not the receiving of such cars that gives offense. It is the cutting them up before they are clean. The court’s order is overly broad and unnecessary; it could have the effect of putting defendants out of business. A simple cleaning of the cars before cutting is all that is necessary to protect the environment. Thus, the measures prescribed by paragraph eight are unwarranted by the evidence and must be stricken.

Paragraph nine prevents the defendants’ use of a cutting torch on any railway car as long as it contains any combustible material such as wood. Wood, it should be understood, is a component part of most railway cars, even steel ones. The defendants’ operation entails cutting up retired railway cars which have salvageable scrap steel or parts. A cutting torch is essential to such an enterprise. The application of a cutting torch to steel is not offensive to the Act. The application of a cutting torch to even combustible substances does not necessarily result in air pollution nor open burning. Moreover, the record is barren of evidence to support a finding that the burning of wood, with a cutting torch or otherwise, results in air pollution. And, combustion or smoldering of wood by itself is not violative of the open burning prohibition. The forbidden conduct is burning for the purpose of disposal of refuse. (McIntyre v. Pollution Control Board (1972), 8 Ill. App. 3d 1026.) Thus, paragraph nine is overbroad and excessive. It must be stricken as written.

Paragraph 10, along the same lines as the preceding paragraph, states:

“The Defendants and each of them are permanently enjoined and prohibited from causing or allowing open burning at any location in Illinois where they engage in railroad salvage operations. For purposes of this Order, open burning shall include, without limitation, the combustion of wood or any other combustible material which results from the use of a cutting torch.” (Emphasis added.)

Thus, the court attempts to legislate, without authority, that open burning occurs if combustion results from the use of a cutting torch. Such is a clear abuse of authority. Moreover, the trial court misunderstood and misapplied the statutory term “open burning” as set forth in the Act. The mere occurrence of an outdoor fire is not sufficient to constitute a statutory violation.

The accidental or incidental starting of a fire within a railroad car being scrapped would not, in and of itself, constitute “open burning.” Granted, it would be open burning if a railroad car were deliberately set on fire to burn out all of the wood before the steel was cut up. It would not be open burning if wood components in the car caught on fire during the use of a cutting torch by an operator who was disassembling a railroad car. In the latter instance, such a fire would be an accidental or incidental occurrence. Such fires should be extinguished by suitable techniques determined at the discretion of the salvager. But the control of such incidental fires does not require the elimination of cutting torches. Cutting torches are an efficient and economically indispensible tool in this type of salvage operation. Judicial notice should be taken of their common usage and utility in industrial operations. Fire is a commonplace byproduct of nearly every aspect of American industry. If courts are going to engage in the business of outlawing any tool that could or might produce fire, then this economy is truly on the road back to the Stone Age.

This court in McIntyre v. Pollution Control Board (1972), 8 Ill. App. 3d 1026, made it clear that the Act is violated where open burning occurs for a specified purpose. The intent to institute open burning for the purpose of disposing of refuse must be shown before any statutory violation can be proved. The State failed to demonstrate solid evidence thereof for all the fires. The evidence merely reveals that there were several fires on property allegedly owned by the defendants. The mere occurrence of a fire or its frequency is insufficient to support a conclusion that the defendants engaged in open burning. McIntyre v. Pollution Control Board.

The State argues that in Environmental Protection Agency v. Hulcher Emergency Service, Inc. (1979), 33 Ill. P.C.B. Op. 391, the burning of wood during the cutting of boxcars with cutting torches was held to be open burning and violative of the Act. Our reading of the Board’s order does not lead us to the same conclusion nor do we find that case completely applicable. First of all, in Hulcher, the complaint and order found air pollution violations as well as open burning. Moreover, the Board’s order was entered upon a “Stipulation and Proposal for Settlement” between the parties. Therein, defendant Hulcher admitted to intentionally setting the wood railroad car liners on fire with torches before cutting up the steel portions. We note that the Pollution Control Board, even in light of such admitted intentional conduct, did not ban cutting torches, but merely required the wooden portions be removed initially.

In the instant case, the defendants dispute the allegations by the State that they intentionally set all the fires which are claimed as violations. While defendant Knippenberg admitted that sometimes the wooden undercarriages were intentionally burned out (and this, of course, would constitute open burning), the instant injunction goes far beyond proscribing such conduct. To deny defendants the use of the cutting torch in their operation while any combustible material remains in or on the railroad cars is unreasonable, unwarranted and excessive.

The evidence does not clearly establish that all the alleged fires occurred on the defendants’ property. The Rockdale Fire Chief who testified about such fires admitted he was unsure about the boundaries of the defendants’ property. The State had to show the locus of the fires as well as a specific intent in setting them. The injunction is inconsistent with the quantity of the evidence on these two crucial issues.

Furthermore, the State’s complaint alleged that such fires caused air pollution. Suitability or unsuitability of the pollution source is to be considered in view of the surrounding area. The defendants’ salvage operation is in a highly industrialized area. No evidence was produced by the State to show that the combustion of wood was injurious to health or life.

Paragraphs eight, nine and 10 enjoin defendants’ conduct throughout the entire State. The evidence demonstrates, whatever violations occurred were in the Rockdale yard only. The scope of the injunction must be narrowly drawn to the location where the offensive conduct is established by the evidence. It cannot be expanded by speculation. We find no basis in the record for the scope of this injunction to extend to the entire State.

The next seven paragraphs of the injunction are mandatory in nature and set forth in exquisite detail measures designed to improve Joliet’s fire safety facilities. We set them out in full:

“11. Effective immediately the defendants and each of them are prohibited from using cutting torches at the Rockdale Yard at any time when no water is available in the yard’s water supply for any reason.
12. Effective immediately the defendants and each of them shall cause all combustible materials stripped from salvaged cars at the Rockdale Yard to be placed wholly within non-combustible containers upon removal from said cars, and stored thus until removal from the yard. Such combustible materials shall be removed from the yard no less frequently than once a week, and disposed of at a permitted landfill, or in some other lawful manner.
13. Effective immediately all railroad cars, and particularly the wooden box cars, received by the defendants in connection with the operation of the Rockdale Yard shall be stored pending dismantling within the area of the yard bounded by Mound Road, Larkin Avenue, the Rock. Island main line, and the dirt road east of defendants’ office trailer.
14. Effective immediately the defendants shall install and maintain a proper fence completely enclosing the liquid oxygen storage tank at the Rockdale Yard.
15. Effective immediately the defendants shall secure all liquid petroleum gas containers at the Rockdale Yard to stationary objects, whether in use or in storage, and shall maintain valve covers on all such containers when not in use.
16. Within 6 months after entry of this Order, the defendants shall install and maintain at the Rockdale Yard an adequate water supply including all of the following:
A. An underground water main no less than 4 inches in diameter extending to the center of the yard, with a hydrant situated so as to make possible the delivery of water in standard sized fire hoses to all areas of the yard. The water main and hydrant shall comply with all applicable local, county and state requirements.
B. Hoses and nozzles of standard size, equipped with National Standard Thread, of sufficient size and quantity to deliver water to all areas of the yard, in conformity with all applicable local, county and state requirements.
C. A roadway of sufficient width and length, with grade crossings, to give fire fighting vehicles access to all areas of the yard, particularly including the northern portion thereof, with room to turn around at the end of said roadway.
17. Thirty days or more prior to the commencement of construction for items 16A and C above, the defendants shall file with the clerk of the court and submit to the plaintiff, and to the Rockdale Fire Department, written plans describing the location and dimensions of the required water main, hydrant, and roadway. Plaintiff may bring an appropriate motion before the court within 30 days after receipt of said plans, if it appears to the plaintiff that the plans do not comport with the terms of this Order.”

We note initially that injunctions which are mandatory in character are not favored by the courts. (John Deere Co. v. Hinrichs (1962), 36 Ill. App. 2d 255.) A mandatory injunction is not granted as a matter of right, but only in rare cases of great necessity when sound judicial discretion requires the court to act. (National Bank v. River Forest State Bank (1971), 3 Ill. App. 3d 209.) For the court to find such extreme urgency or great necessity, the need for such relief must be clearly established and free from doubt. (Moehling v. N. & J. Enterprises, Ltd. (1973), 15 Ill. App. 3d 987.) Our review of the record discloses that the only issues which are free from doubt are that some fires occurred at the defendants’ Rockdale salvage yard and they could not always be extinguished with the existing equipment.

The detail and directives of the preceding seven paragraphs relating to fire prevention exceed the proper prerogative of the courts. Had the order required that an adequate fire prevention system be installed and maintained, such would be appropriate. The interest of the State in this controversy is that fires be controlled. The manner and method of control, so long as the fires are indeed controlled, is not the State’s concern. The method is for the salvager to decide. The expertise of the judiciary is not in the engineering of fire protection systems. Nor do we have the wherewithal to supervise such projects. We note, however, that defendants have long since complied with the provisions of paragraphs 12, 14, 15, and 18. And, they agree with paragraphs 11 and 13.

Paragraph 18 of the injunction order states:

“Within 30 days after entry of this Order, the defendants shall submit to the Illinois Environmental Protection Agency, Air Field Operations, 1701 South First Avenue, Maywood, Illinois 60153, a list of the last known location of each and every railroad car listed on Plaintiff’s Exhibit 6 and Plaintiff’s Exhibit 8, Invoice No. U-10300, giving the name and address of the person in possession of each car. For every such car which is now in the possession of the defendants, they shall state specifically what disposition is to be made of said car consistent with this Order.”

Apparently this is directed at the fact that after the imposition of the preliminary injunction order, 47 uncleaned railway cars were received and stored at the Rockdale salvage yard. According to Invoice No. U-10300, dated October 4, 1979, 12 tank cars were purchased pursuant to an existing contract and shipped to the McCook storage yard owned by Pielet Bros. Scrap Iron, Inc. This contract did not provide for the cleaning of tank cars. Seven cars listed on Invoice No. U-10300 were sulfur cars. The defendants testified that these cars had been variously sold, dismantled or held in storage. While the defendants do not appeal from this provision and, in fact, have complied with it before issuance of the permanent injunction order, we believe it should be stricken.. Paragraph 18 is designed to permit the Environmental Protection Agency to trace the cars and determine whether they have been disposed of properly. This type of monitoring is unnecessary and excessive. It bears no relation to any environmental protection goal. Assuming for the moment the preceding provisions of the injunction had been upheld, and they have not, paragraph 18 can only be designed to harass. It is not within the scope of the State’s complaint nor is it mandated by evidence or any principle of law we can discover.

For the reasons herein discussed, paragraphs eight through 18 of the trial court’s order are reversed and remanded to the trial court for revision and modification in conformity with the views expressed in this opinion. Paragraph 19, which imposes a civil penalty of $10,000, is affirmed as supported by the evidence.

Affirmed in part, reversed in part and remanded.

STOUDER, J., concurs.

JUSTICE ALLOY,

concurring in part and dissenting in part:

I agree with the majority that paragraph eight should be stricken and that the trial court’s prohibition on the defendants from operating anywhere in Illinois is overbroad. Additionally, I agree that paragraph 16 of the injunction, concerning a fire prevention system, is over-broad. I disagree, however, with the majority’s insistence upon wholesale reversal of the injunction, even on matters that are not properly before this court.

The majority’s approach to paragraph 10 of the trial court order is contrary to the law and to the evidence in this case. Paragraph 10 prohibits the defendants from conducting or allowing any open burning within the State. An open burning occurs when a defendant engages in the burning for the purpose of disposing of refuse. (McIntyre v. Pollution Control Board (1972), 8 Ill. App. 3d 1026, 291 N.E.2d 253.) An accidental fire, therefore, is not an open burning in violation of the Environmental Protection Act. The majority specifically states that, “it would be open burning if a railroad car were deliberately set on fire to burn out all of the wood before the steel was cut up.” As the majority recognizes, one of the defendants admitted that they intentionally burn the wood out of the undercarriages in order to dispose of this wood. The majority correctly cites McIntyre as the controlling law on this issue, correctly states the circumstances that would — under McIntyre — constitute a violation of the open burning statute and even cites the evidence in the record that plainly supports the trial court’s decision. Inexplicably, however, the majority reverses this part of the injunction.

The majority attempts to justify this result by taking judicial notice of the utility and widespread use of cutting torches in American industry. As true as this may be, it is certainly irrelevant to the correct resolution of this ease. The issues here are whether the defendants committed open burnings in violation of the law and whether the trial court can enjoin further open burnings in violation of the environmental protection laws. The record and the law supports the trial court’s determination that unlawful open burnings occurred and that the defendants were responsible for those violations. Furthermore, there is no doubt that a court can enjoin further violations of the Environmental Protection Act. (People v. Keeven (1979), 68 Ill. App. 3d 91, 97.) Oddly enough, the majority even notes with apparent approval Environmental Protection Agency v. Hulcher Emergency Service, Inc. (1979), 33 Ill. P.C.B. Op. 391, in which the Pollution Control Board required the removal of the wood from the undercarriages before they were dismantled with cutting torches. In the case at bar, the net effect of paragraphs nine and 10 require the same precaution. Furthermore, the defendants themselves substantially agree with these restrictions: In their argument before this court, they suggest the injunction be modified to read that, “The Defendant shall be permanently enjoined from conducting any open burning to dispose of salvage material.” Despite the evidence, the law and the defendants own request for relief, the majority completely reverses the trial court’s correct determination on this point. Finally, even if we assume the trial court’s language is in some sense vague or confused, it is far more prudent to use our well-established powers to modify the order to more clearly conform to the record and to McIntyre than to reverse the injunction completely.

Similarly, the majority’s approach to paragraph 16, concerning prevention of fires on the defendant’s property, is overbroad. The only paragraph that the defendants take issue with is paragraph 16. Paragraph 16, in essence, requires the defendants to build a water-based fire prevention system. I agree with the majority that the State’s concern in this case is to prevent and control fires. I also agree that the trial court should not have mandated the detail of a water-based fire prevention system. The salvager should be free to use any adequate method of preventing and controlling fires. Again,, however, the majority strikes the trial court order completely. This position is contrary to the evidence that demonstrates a consistent pattern of fires over many years. Additionally, the majority gives the defendants more relief than they requested. The defendants do no more than urge this court to modify the injunction to read: “No cutting torches can be used by Defendant until a fire prevention system of either the water or chemical type is installed and approved by the Environmental Protection Agency or other appropriate agency.” Even the majority concedes the trial court was correct at least insofar as its ruling that some fire prevention system is necessary, for they state that “[h]ad the order required that an adequate fire prevention system be installed and maintained, such would be appropriate.” It is apparent, therefore, that the defendants agree they need a fire prevention system, the State agrees they need a fire prevention system, the trial court agrees with that conclusion, the majority agrees with that and I agree with that conclusion. There is no logical reason to strike the injunction completely. If the trial court’s sole error was going into too much detail, we should simply modify the injunction to read, “The defendants shall install and maintain an adequate fire prevention and protection system, with the advice and approval of the Environmental Protection Agency. The defendants shall not use cutting torches until this system is installed and operative.” Not only does this grant the defendants all the relief they asked for, but also tailors the injunction to the evidence as well.

Finally, I must take issue with the majority’s complete reversal of parts of the injunction which are not at issue before this court. The defendants agree with the substance of paragraphs 11 and 13 of the trial court’s order. They raised no objection and started to comply with paragraphs 12, 14, 15 and 18. Curiously, the majority chooses to reverse these provisions without argument from either party and without any detailed analysis even in its opinion. The fact that the defendants have complied with these paragraphs does not require them to be reversed now, for the injunction requires continued compliance as well as initial obedience. More importantly, this court should not rule on abstract questions of law. “Other than for jurisdictional reasons a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment.” (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) We should not even consider, much less reverse, issues that no party raises or argues on appeal.

I would modify paragraphs 10 and 16 to clarify the language and to insure they conform to the law and the record. I would strike paragraph eight, as the majority does, and I would affirm the trial court on all other points.


author: JUSTICE HEIPLE

text:
    EXCHANGE NATIONAL BANK, Trustee, et al., Plaintiffs-Appellants, v. FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN et al., Defendants-Appellees.
    Third District
    No. 81 — 697
    Opinion filed July 20, 1982.
    Rehearing denied September 3, 1982.
    Richard G. Siegel, of Chicago, for appellants.
    Sheldon Davidson and Marilee Roberg, both of Pedersen &, Houpt, and David P. Schippers, of Schippers & Mackay, both of Chicago, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs, Barry Moss and Steven Bloomberg, are beneficiaries of a land trust with the nominal plaintiff, Exchange National Bank, the trustee. The land trust held title to certain real property. Plaintiffs wanted to erect a commercial building on that land, which was located in Bolingbrook. They contracted with Farm Bureau Life Insurance Company of Michigan (Farm Bureau) for a permanent loan commitment. Such loan was to be secured by a mortgage on the property and building. The loan contract consists of an offer, and three later amendments, the last dated April 15, 1977. The loan was for $393,750 to be paid back in full in 15 years. The terms of repayment were based on a 25-year amortization schedule at a 9.25% annual interest rate. The commitment could be extended for no longer than 180 days without Farm Bureau imposing a fee. For any further extension the lender could charge no more than V2 of 1% of the committed funds as a penalty. If the loan was not completed by April 1978, it expired. Closing of the final mortgage could not occur until the completed building was inspected and accepted by the lender.

In June 1977, plaintiffs received a temporary construction loan from Great Lakes Mortgage Company (Great Lakes). This loan was to provide funds to build the commercial structure. It was to be repaid from the proceeds of the permanent mortgage. The permanent financing contract was extended beyond 180 days. Prior to its expiry, in September 1978, Great Lakes requested Farm Bureau to inspect the building in order to finalize the mortgage. Farm Bureau did not complete that inspection but waited until April 17, 1979, to do so. Then, it accepted the building. Thereupon, Farm Bureau wanted to close the mortgage but invoked the penalty clause because of the additional time which had been granted past the agreed upon extension period.

On March 4, 1980, the plaintiffs sued Farm Bureau and its corporate executives (individually and in their official capacities) in Will County Circuit Court. The complaint contained five counts. Counts I and II directed only against the corporate defendant, Farm Bureau, and were breach of contract actions maintaining Farm Bureau unreasonably withheld the inspection of the building. Specific performance or damages based on the difference it cost plaintiffs to secure another long-term mortgage loan (i.e., $637,610) were requested. Count III, which was only directed against the individual defendants, alleged a conspiracy by such individual defendants to withhold inspection in order to escalate the interest on the permanent mortgage. Punitive damages of $2 million were requested. Count IV, which was also directed only against the individual defendants, sought recovery on a theory of fraud. Count V named all defendants and alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 1211/2, par. 261), and requested $50,000 in damages, attorney’s fees, and costs.

After unsuccessfully attempting to remove the entire action to Federal district court, plaintiffs obtained a default judgment against the corporate defendants, Farm Bureau, on counts I and II. That judgment remains the focus of Farm Bureau’s pending section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72), filed October 21, 1980. On the latter date, all defendants also filed a motion to dismiss counts III, IV, and V. The motion was granted. Plaintiffs filed an amended complaint. It is 54 pages long and names all defendants. Count III alleges that the defendants interfered with plaintiffs’ contract and business relationships with Great Lakes and other unspecified lenders. Count IV realleges fraud. Again, count V seeks to recover under the Consumer Fraud Act. Eventually, the trial judge dismissed these three counts with prejudice for failure to state a cause of action. On October 30, 1981, he certified that order indicating no just reason existed for delaying enforcement of an appeal. (73 Ill. 2d R. 304(a).) Plaintiffs appealed. Defendants cross-appealed and moved to dismiss the appeal arguing the matter should not go forward since counts I and II are still pending a decision, and our present review would result in piecemeal appeals. The motion to dismiss the appeal was denied by this court on February 11, 1982.

Interference with a person’s contractual relationships has a long and well-developed history in Illinois. (Doremus v. Hennessey (1898), 176 Ill. 608; Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400.) Plaintiffs, however, have not stated a cause of action under such tort theory.

As to count III, to properly plead a tortious interference with a contract, a complaint must state, based on facts, that: (1) a current contract was in force and effect between the plaintiff and another party; (2) the defendant induced the breach of such contract, or caused a third party not to perform a contract, or enter into or continue business relationships with the plaintiff; and, (3) the interference must be intentional, causing a contract breach of termination. Herman v. Prudence Mutual Casualty Co. (1969), 41 Ill.2d 468, 473-74.

Plaintiffs’ complaint contains no allegation of a contract breached with a third party because of the wilful action or omissions of the defendants. The contract with Great Lakes is still in effect. Defendants have not induced a breach of that contract or purposely caused Great Lakes to not perform its contract with plaintiffs. (Cf. Swager v. Couri (1979), 77 Ill. 2d 173, 187.) Plaintiffs’ amended complaint does not relate any facts which indicate that defendants’ conduct was to intentionally induce a breach of contract or to terminate any agreement. Nor can such facts be inferred from the complaint. A mere recital that defendants interfered with plaintiffs’ business affairs is insufficient. Without a factual basis indicating how defendants’ conduct was intentional, Farm Bureau or any other defendant could not be the legal cause of any contractual interference which is cognizable in tort. As to those prospective lenders allegedly induced by defendants to not deal with plaintiff, such firms or persons are unidentified. Who are they? What are their relationships to the plaintiffs? The complaint does not say. Nor are facts alleged indicating how any of the defendants exerted influence on such lenders to deny or avoid contracts concerning permanent or other financing arrangements with respect to plaintiffs’ building project. Because plaintiffs failed to delineate the essential elements of a cause of action for interference with a contract or business relationship, count III was properly dismissed.

Count IV is fatally deficient. It is settled law that any recovery based on theories of fraudulent misrepresentation or deceit must be pleaded with certainty and specificity. This does not mean cluttering up the pleadings with adjectival phrases, gerunds, or other modifiers. All conduct which forms the purported basis for any fraudulent concealment or misrepresentation are identified only to Farm Bureau’s officers as a group, not as to individual agents or officials. Although eight officers are named as defendants, the complaint does not delineate which person is responsible for what conduct. Furthermore, what are those misrepresentations? How were they conveyed? The complaint does not set out these essential details. The allegations of count IV are conclusory statements, which are insufficient in law to state a cause of action based on fraud. (Horan v. Blowitz (1958), 13 Ill.2d 126, 133.) Dismissing this count was proper.

As to count V, we acknowledge the Consumer Fraud and Deceptive Business Practices Act (the Act) must be liberally construed. (Ill. Rev. Stat. 1979, ch. 1211/2, par. 271(a).) Although we believe the Act applies to mortgage lenders, we do not believe it is completely openended. (See Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 285.) It does not apply to every situation where, as in the cause at bar, the only actual controversy is whether an isolated breach of contract occurred. Plaintiffs’ theory of defendants’ deviant business behavior is farfetched. They maintain that defendants, who are in the business of lending mortgage funds, loaned them money only after agreeing among themselves to breach such loan agreement in order to extort more money out of plaintiffs at a later time. In other words, defendants entered into the loan commitment with the malicious intent to repudiate it. As part of such plot, defendants concealed such intention wilfully throughout their dealings with plaintiffs, including granting them extensions under the commitment agreement.

We believe the scenario plaintiffs have painted is contrived. Commercially, it is ridiculous. In the absence of an allegation indicating such practices to be part of a pattern of defendants’ lending activities, we believe count V fails to state a cause of action. Every individual breach of contract between two parties does not amount to a cause of action cognizable under the Act. If it did, common law breach of contract actions would be supplemented in every case with an additional and redundant remedy. Such is not the intention of the Consumer Fraud Act. Therefore, count V was correctly dismissed.

For the reasons stated, we affirm the order and judgment of the Will County Circuit Court dismissing counts III, IV, and V of plaintiffs’ amended complaint.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE STOUDER

text:
    THE VILLAGE OF MORTON, Plaintiff-Appellant, v. CHARLES R. THOMAS, Defendant-Appellee.
    Third District
    No. 81 — 729
    Opinion filed July 28, 1982.

      Thomas E. Davies, of Elliff, Keyser, Oberle & Davies, P. C., of Morton, for appellant.
    Patrick A. Tuite and Timothy D. Kosnoff, both of Law Offices of Patrick A. Tuite, Ltd., of Chicago, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Village of Morton, filed five complaints charging defendant, Charles R. Thomas, with violations of its adult use ordinance. After a consolidated hearing, the circuit court of Tazewell County dismissed the complaints. The sole issue presented for our review is whether defendant was “doing business” at the time the ordinance took effect.

In June 1981, defendant negotiated the purchase of the Morton Cinema Corporation and on July 1, 1981, took possession of its theater. Defendant immediately began repairing equipment and splicing two films, Super Vixen and Up. He concluded his preparations around midnight when he placed advertisements of the films’ next day opening on the theater’s outdoor pylon. When defendant returned the next day, he discovered his landlord had changed the locks on the theater. On July 6, 1981, the landlord was enjoined from his lockout, and plaintiff adopted the ordinance at bar. Two days later, defendant began showing his features.

The question at bar arises from the following provision:

“Any adult use doing business at the time this Ordinance takes effect shall have thirty (30) days from the effective date of this Ordinance to apply for the issuance of an adult use license.” (Morton, Ill., Municipal Code, tit. 3, sec. 3 — 21—3(F) (1981).)

The trial court found defendant was “doing business” when the ordinance took effect on July 6, 1981. As the charged violations all took place in July, they were dismissed.

The phrase “doing business” has been the subject of many judicial interpretations, the majority of which consider the term only in a jurisdictional context. (See Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 327, 368 N.E.2d 88, 91.) As Judge Learned Hand stated, “It is quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass.” (Hutchinson v. Chase & Gilbert, Inc. (2d Cir. 1930), 45 F.2d 139, 142, cited in Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 327, 368 N.E.2d 88, 91.) In construing laws regarding licenses and permits, two general rules provide guidance. The first is that the 'performance of a single transaction, or even a number of isolated transactions, will not generally fall within the purview of a law requiring a license. (See, e.g., O’Neill v. Sinclair (1894), 153 Ill. 525, 530-31; see 25 Ill. L. & Prac. Licenses and Occupation and Privilege Taxes sec. 41 (1956); 51 Am. Jur.2d Licenses and Permits sec. 2 (1970); Annot., 93 A.L.R.2d 90, 94-97 (1964).) The second is an exception to the first rule. If the intent to permanently engage in a business is established by other material circumstances surrounding the performance of a single or isolated transaction, such may constitute “doing business.” See 51 Am. Jur.2d Licenses and Permits sec. 2 (1970); Annot., 93 A.L.R.2d 90, 97-99 (1964).

While these rules have generally arisen from decisions considering whether a license was required, they are nonetheless helpful. In the case at bar, defendant had purchased a corporation, rented and occupied a theater, repaired equipment, spliced his first two features, and set out display advertising. The theater would have opened July 2, 1981, but for the wrongful action of defendant’s landlord. Defendant testified that his intention was to exhibit adult fare if it was economically feasible, and this intention was manifested in the showing of nine such films during the relevant period.

An additional factor before the trial court was the penal nature of the ordinance. Violation of any provision is a misdemeanor punishable by a fine of up to $500 and/or up to six months’ imprisonment. It is well settled that penal statutes are to be strictly construed in favor of an accused. People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.

Given these factors, we cannot say the trial court abused its discretion in dismissing the complaints. Neither the fact that no adult movie was shown until after the effective date of the ordinance nor the fact that defendant began showing other features after his arrest and the seizure of his adult films is dispositive of this cause. Whether one views defendant’s transactions before July 6, 1981, as coupled with the intent to permanently engage in the business, or. adopts the broader definition of “engaging in activities in pursuit of gain” (Black’s Law Dictionary 569 (4th ed. 1951), the court’s finding that defendant was “doing business” is supported by the evidence.

Accordingly, the order of the circuit court of Tazewell County dismissing the complaints is affirmed.

Affirmed.

BARRY, R J., and HEIPLE, J., concur.


author: PRESIDING JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN A. WILLIAMS, Defendant-Appellee.
    Third District
    No. 81 — 575
    Opinion filed July 30, 1982.
    HEIPLE, J., specially concurring.
    Gary L. Morris, Assistant Corporation Counsel, of Peoria, for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, John A. Williams, was arrested on March 13, 1981, and charged with driving on a suspended license. During the defendant’s bench trial on August 17, 1981, the presiding judge, John Whitney, denied the State’s motion to admit into evidence an exhibit offered to prove that the defendant’s license was suspended on March 13, 1981. The trial judge incorrectly ruled that the prosecution had failed to show a chain of evidence in the handling of the certified documents presented by the State.

A notice of appeal was filed by the State on September 16, 1981. However, the trial judge’s order certifying the question of the need for a chain of evidence to admit certain certified copies of the defendant’s driving license into evidence was not entered until September 25, 1981. Because of the filing of the trial judge’s order nine days after the notice of appeal was filed renders the September 16, 1981, notice of appeal a nullity, we will not entertain this appeal. There was no order from which to appeal at the time the notice of appeal was filed. Also, the State filed a notice of appeal rather than perfecting its appeal as an interlocutory appeal by seeking leave of this court, as required by Supreme Court Rule 308. 73 Ill. 2d R. 308.

Furthermore, the State cannot bring this appeal pursuant to Supreme Court Rule 604(a)(1). (73 Ill. 2d R. 604(a)(1).) Despite suggested language in the State’s brief to the contrary, the erroneous ruling by Judge Whitney was clearly an evidentiary ruling and not a suppression order.

For the foregoing reasons, this appeal is dismissed.

Appeal dismissed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

specially concurring:

Although I agree with the dismissal of the People’s appeal for the procedural reasons stated in the majority opinion, justice has again miscarried. As the majority pointed out, Judge Whitney erroneously ruled that the prosecution could not admit into evidence certified documents (i.e., the driving abstract of John A. Williams) from the Secretary of State, since the envelope had been opened by a clerk at the Peoria police department before it was received by the arresting officer. Since the arresting officer had received an envelope from the Secretary of State that had already been opened, Judge Whitney decided that the prosecution could not establish a chain of custody of the certified documents.

This documentary evidence was clearly necessary to establish the fact that defendant Williams was driving on a suspended license. A conviction most certainly would have resulted if the certified documents had been admitted into evidence as is proper. Judge Whitney’s ruling permitted an obviously guilty defendant to get off.

This is not the first, nor the second such occasion that justice has been miscarried by a grossly erroneous ruling by this judge. Earlier this year, in the case of People v. White (1982), 102 Ill. App. 3d 1206, in a nonpublished special concurring opinion, I had another occasion to point out a gross error of this same judge where he erroneously applied a chain of custody condition to defeat the People’s case. It, too, involved a dismissal of the prosecution’s appeal because the matter was procedurally nonappealable. It, too, resulted in a miscarriage of justice. A guilty man was acquitted because of an erroneous ruling by Judge Whitney.

That case also involved a prosecution for driving with a suspended license. It was a bench trial. During the prosecution’s case, the prosecuting attorney offered a certified document from the Illinois Secretary of State which showed that the defendant’s driver’s license was suspended on the day in question.

The defense counsel in White offered the pettifogging objection that the police officer who was testifying did not know when the document had arrived at the police station, nor how it got there, nor if it arrived in an envelope sealed or otherwise, nor if it did arrive in an envelope, who extracted it from the envelope or initially received the envelope, or whether the envelope itself bore postage or purported to be sent by the Secretary of State, or what happened to the envelope after it was received. This is a chain of custody type objection which is wholly immaterial to the offer of a certified document. Regrettably, the judge swallowed it and sustained the objection to the admission of the document. Given that ruling, the prosecution’s case was in total collapse and the defendant was accordingly acquitted.

In my special concurring opinion in White, I directed Judge Whitney’s attention to Cleary’s Handbook of Illinois Evidence, specifically section 901.2 dealing with chain of custody and section 902.2 dealing with certified copies of public records and the numerous cases therein cited. Cleary and Graham, Handbook of Illinois Evidence secs. 901.2, 902.2 (3rd ed. 1979).

The pattern continues.

In yet another case involving this same judge (People v. Bat-chelder (July 8, 1982), Docket No. 81 — 578) filed in July of this year, Judge Whitney erroneously sustained a Miranda-type objection which resulted in the acquittal of yet another traffic defendant, this one an obviously drunken driver. As I noted in that opinion, all the king’s horses and all the king’s men could not put Humpty-Dumpty back together again. So it is with trials. Many errors which occur at the trial level are simply not reachable on appeal. A calculating defense attorney and a complaisant judge can converge to defeat the administration of justice; that such happened in the cases discussed above is obvious. I again point this out in the interest of justice.