author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE ex rel. KENT BOSWORTH, County Treasurer, Plaintiff-Appellant, v. EARL LOWEN et al., Defendants-Appellees—(Valley View Community Unit School District No. 365U, Will County, Intervening Appellant).
    Third District
    Nos. 82-332, 82-257, 82-304, 82-305, 82-330, 82-331 cons.
    Opinion filed June 14, 1983.

      Edward Petka, State’s Attorney, of Joliet, and Barry L. Moss and George A. Marchetti, both of Moss and Bloomberg, Ltd., of Bolingbrook, for appellants.
    Murphy, Timm, Lennon, Spesia & Ayers, and Herschbach, Tracy, Johnson, Bertani & Wilson, both of Joliet, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This appeal is from summary judgments entered in three tax objection proceedings in Will County circuit court, ordering tax refunds to Commonwealth Edison for the years 1977, 1978, and 1979 in a total amount of $2,601,267.92. Edison was found to be entitled to the refunds as a result of the downward revisions in the assessments of its pollution control facilities as certified by the Department of Revenue.

The assessment of pollution control facilities for property tax purposes was governed by sections 21a — 1 and 21a — 3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, pars. 502a — 1, 502a — 3), which required the Department of Revenue to value such facilities in relation to their economic productivity to their owners. In the case of public utilities, such as Edison, the Department used the present cash value of the pollution control facilities as the basis for valuation since those facilities were included in the rate base' from which Edison’s rates were determined and, therefore, were considered to be economically productive.

Edison paid its Will County property taxes under protest for each of the years 1977, 1978, and 1979, and then filed timely tax objections, asserting that the valuations certified by the Department of Revenue were erroneous. While these tax objection proceedings were pending in Will County, Edison was pursuing its administrative remedies against the Department in Cook County. That case reached the supreme court, where the court ruled the 1979 amendment to section 21a — 3 of the Revenue Act of 1939 to be applicable to assessments in prior years. The amendment required attribution of earnings to a pollution control facility only to the extent the facility produces a commercially saleable byproduct or affects the cost of products or services sold by the utility. (Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817.) As a result of that decision, the Department issued new assessment figures for Edison’s Will County pollution control facilities for the years 1977, 1978, and 1979.

The revised assessments for 1977 and 1978 for both personal and real property were computed on the basis of 1.5% of fair cash value equalized at 331/3%, i.e., .5%. The 1979 assessments of real property were similarly reduced to .5%, and certain electrostatic precipitators were reduced to zero valuation. The latter had been improperly classified as realty in 1979 after being classified as personalty in prior years. While the tax objections were pending, the supreme court held that under section 18.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 499.1), it was improper to change personal property to a classification of real property after the abolition of the personal property tax. (Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 418 N.E.2d 696.) Thus, when the Department of Revenue recertified the Edison assessments, the improper reclassification of this property was corrected by giving it a valuation of zero.

After the recertification of assessments by the Department of Revenue, Edison filed motions for summary judgment accompanied by affidavits in all the pending tax objection proceedings in Will County. In the meantime, Valley View Community Unit School District had been allowed to intervene in these proceedings, and the county treasurer joined with the school district in filing motions to dismiss the tax objections. After hearing arguments of counsel and receiving briefs, the circuit court denied the motions to dismiss and granted summary judgments in favor of Edison. The county treasurer and the school district have appealed from those rulings.

The first question raised upon appeal is, in essence, whether section 21a — 3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 502a — 3) is unconstitutional by its terms. The policy of the statutory provisions is set forth in section 21a — 1 of the Revenue Act of 1939, as follows:

“It is hereby declared to be the policy of the State of Illinois that pollution control facilities should be valued, for purposes of the real and personal property tax laws of this State, in relation to 331/3% of the fair cash value of their economic productivity to their owners.” Ill. Rev. Stat. 1981, ch. 120, par. 502a — 1.

Section 21a — 3 as originally enacted (see Ill. Rev. Stat. 1977, ch. 120, par. 502a — 3) provided the following method of valuation of pollution control facilities:

“For the purpose of determining 33V3% of the fair cash value of any certified pollution control facilities in assessing said facilities under the real and personal property tax laws of this State, the Department shall take into consideration the actual or probable net earnings attributable to the facilities in question, capitalized on the basis of their productive earning value to their owner; the probable net value which could be realized by their owner if the facilities were removed and sold at a fair, voluntary sale, giving due account to the expense of removal and condition of the particular facilities in question; and such other information as the Department may consider as bearing on 33V3% of the fair cash value, to their owner, of the pollution control facilities in question, consistent with the principles set forth herein.”

The 1979 amendment to section 21a — 3 added the following language after the above:

“For the purposes of this Act, earnings shall be attributed to a pollution control facility only to the extent that the operation thereof results in the production of a commercially saleable byproduct or increases the production or reduces the production costs of the products or services otherwise sold by the owner of such facility. For the purposes of this Section the land underlying a cooling pond shall not be considered a part of a pollution control facility.
This amendatory Act of 1979 is not intended to nor does it make any change in the meaning of any provision in this Section but is intended to remove possible ambiguities, thereby confirming the existing meaning of this Section in effect prior to the effective date of this amendatory Act of 1979.” Ill. Rev. Stat. 1979, ch. 120, par. 502a — 3.

The appellants argue that section 21a — 3 violates the uniformity requirement of the Illinois Constitution, which states:

“Except as otherwise provided in this Section, taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, sec. 4(a).)

The main thrust of appellants’ argument seems to be that pollution control facilities are just as financially profitable to investors as any other type of facility owned by a public utility since the value of the pollution control facility is included in the rate base. It is argued that, because of the special nature of public utility rate determination, the value of pollution control facilities generates income for the utility, and to fail to consider those revenues when determining the valuation of such facilities is a failure to comply with the uniformity provision of the constitution.

It seems clear that pollution control facilities and equipment are not usually economically productive in and of themselves. They represent an additional economic burden upon manufacturers and processors which is required because of the environmental necessity of reducing the discharge of pollutants into our air and water. All industries where the rates and prices are not subject to administrative determination would, therefore, exclude pollution control facilities from their tax valuation. It is only public utilities, where special methods of setting rates and prices prevail, that would be required to pay property taxes based upon the fair cash value of their pollution control facilities under the original Department of Revenue interpretation of the section 21a — 3 prior to the 1979 amendment.

It is our view that section 21a — 3 as amended provides for all pollution control facilities to be treated in a uniform manner for tax purposes, regardless of the rate-making and price-setting practices of the industry, and hence, that the statute does not violate the uniformity requirements of the Illinois Constitution.

Appellants have also argued that section 21a — 3 amounts to an unconstitutional classification because it results in a disparity between the highest level of assessment and the lowest class of more than the 21!z times permitted by the Illinois Constitution. The constitutional provision referred to is section 4(b) of article IX (Ill. Const. 1970, art. IX, sec. 4(b)), as follows:

“Subject to such limitations as the General Assembly may hereafter prescribe by law, counties with a population of more than 200,000 may classify or continue to classify real property for purposes of taxation. ***. The level of assessment or rate of tax of the highest class in a county shall not exceed two and one-half times the level of assessment or rate of tax of the lowest class in that county.”

As is clear from the plain language of section 4(b), the limitation upon levels of assessment between classes only applies to classifications made by county assessment officials, and does not apply to classifications created by action of the General Assembly. (See Hoffmann v. Clark (1977), 69 Ill. 2d 402, 372 N.E.2d 74.) Thus, section 21a — 3 of the Revenue Act of 1939 is not invalid under limitation provision of article IX, section 4(b), of the Illinois Constitution of 1970.

Appellants also assert that section 21a — 3 amounts to an unconstitutional exemption of pollution control facilities from real property taxation. This assertion is based upon the statement in Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 327, 369 N.E.2d 465, 468, that a “valuation reduction is a partial exemption, and if the value was reduced to zero, it would be a full exemption.” In Lehnhausen, the supreme court was considering a provision of the Revenue Act of 1939 which provided for a “homestead exemption limited to a $1,500 maximum reduction” in the assessed valuation of real property occupied as a residence by a person 65 years of age or older. (Ill. Rev. Stat., 1970 Supp., ch. 120, par. 500.24.) The court expressly rejected the argument that the homestead exemption was merely a property valuation reduction rather than an exemption.

In Lehnhausen the statute used the word “exemption” and provided for a fixed dollar amount of valuation of residential property to be exempt from taxation. A similar situation arose in another case relied upon by appellants. In Elk Grove Engineering Co. v. Korzen (1973), 55 Ill. 2d 393, 304 N.E.2d 65, the court held unconstitutional a provision of the Revenue Act of 1939 which would have allowed every taxpayer a standard deduction of $5,000 from the assessed valuation of his or her personal property. (Ill. Rev. Stat., 1972 Supp., ch. 120, par. 532.1.) Again the court rejected the argument that the deduction provision was not an exemption but was a method for determining the valuation of property subject to taxation.

We think it clear that the case at bar is substantially different in its terms from those statutes which provided for a fixed-dollar amount to be deducted from assessed valuation. Under the statutes involved in both Lehnhausen and Elk Grove, an assessed valuation was determined for each type of property and then that valuation was to be reduced by a fixed-dollar amount. Such is not the case here. Section 21a — 3 purports to set forth the means for determining the fair cash value of pollution control facilities on the basis of their economic productivity. By the terms of the statute, the assessed valuation will be determined by certain factors which may well differ from one facility to another. Some facilities may produce a saleable byproduct or may otherwise have net earnings attributable to them. Certainly no fixed-dollar reduction in valuation can be anticipated under the provisions of section 21a — 3.

The section here in dispute more closely resembles the statutory provisions which were upheld in O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204. Section 1(25) of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482(25)) defined “farm” for purposes of tax valuation and provided that improvements on the farm that are neither currently in use nor contribute towards the productivity of the farm are not to be included in the valuation. This provision was challenged as an unconstitutional exemption from taxation. The Illinois Supreme Court, speaking through Justice Howard Ryan, said:

“We do not agree that this provision constitutes an ‘implied exemption of property from taxation.’ It is, instead, a recognition by the legislature that certain structures located on a farm may have become obsolete by changes in farming methods or practices, and either have a greatly diminished value, "or possibly no value at all in connection with the farming operation when considered as a part of the farm as a whole. ***. The legislature has provided that these buildings should be valued on the basis of their contribution to the farm operation. ***. Being valued as a part of the farm, the failure to place a value on these buildings is a method or procedure of valuation and not an exemption from taxation.” (81 Ill. 2d 260, 267-68, 408 N.E.2d 204, 207.)

We believe the same conclusion applies to section 21a — 3, which like that in O’Connor, sets forth a method or procedure of valuation in order to determine the taxable value based upon the economic productivity of the facility. The pollution control facility is valued as a part of the plant as a whole and is valued on the basis of its productive earning value in the plant operation. Accordingly, we hold that section 21a — 3 does not create a constitutionally impermissible exemption from property taxation.

The next issue on appeal is whether section 21a — 3 is unconstitutional as applied to the property of Commonwealth Edison in this case. Appellants state in their briefs that they are attacking section 21a — 3 in its terms, not as applied, but appellants’ insistence that this statute is invalid as to public utilities demonstrates the inconsistency of their position. To the extent that appellants are challenging the propriety of the assessed valuations determined for the pollution control facilities of Commonwealth Edison in this case, they are challenging the statute as applied. However, we must first consider Edison’s defense: whether the county collector and the taxing bodies were required to exhaust their administrative remedies before seeking review in the courts. Administrative review is provided for in sections 137 and 138 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, pars. 618, 619). It has been held:

“If a statute is valid on its face but is applied in a discriminatory or arbitrary manner *** the challenging party must pursue administrative remedies before seeking judicial relief.” Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552, 359 N.E.2d 113, 117.

As noted by the supreme court in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.2d 737, the pursuit of administrative remedies allows the full development of the facts before the agency, allows the agency an opportunity to exercise its expertise, and if the aggrieved party succeeds, judicial review will be unnecessary. Certainly it is essential that the facts be fully developed on the record where it is claimed, as here, that the statute as applied violates constitutional rights. Here appellants have argued that the statute virtually eliminates all valuation of pollution control facilities, but the record contains no evidence to support that contention. The fact that the valuations of the particular facilities in this case have been reduced from to .5% may or may not be unusual for this type of facility. To say that the valuation attached is not proper here certainly requires supporting evidence before a court could invalidate the value placed upon this property by the appropriate assessment authorities. We conclude, therefore, that appellants were required to exhaust their administrative remedies before raising the issue of the constitutionality of section 21a — 3 as applied in this case.

The final error asserted by appellants concerns the reclassification of certain equipment as non-taxable personal property by the Department of Revenue. The equipment involved were electrostatic precipitators and dust handling units which had been assessed as personal property for the tax years 1977 and 1978 and which were reclassified as real property for 1979 at the time the original Commonwealth Edison assessments were certified to Will County. When the Department recertified the corrected assessments for the years 1977, 1978, and 1979, the equipment was once again shown as personal property for all three years. For the year 1979, this personalty was given a tax valuation of zero since the personal property tax had been abolished pursuant to the 1970 Constitution of Illinois, article IX, section 5(c).

The Department relied upon section 18.1 of the Revenue Act of 1939, also known as the Replacement Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 499.1), which provided in part:

“No property lawfully assessed and taxed as personal property under this Act prior to January 1, 1979, shall be classified as real property subject to assessment and taxation under this Act after January 1, 1979.”

The statute was amended in 1982 by Public Act 82 — 935 to add a prohibition of property of like kind acquired or placed in use after January 1, 1979, from being classified as real property. This statute also provides that the personal property tax has been replaced by increases in the corporate income tax rates and by the invested capital tax which applies to public utilities.

The Replacement Tax Act was considered by the Illinois Supreme Court in Central Illinois Light Co. v. Johnson (1981), 84 Ill. 2d 275, 418 N.E.2d 696, where certain machinery and equipment had been reclassified for 1979 as real property after previously being assessed pursuant to agreement with the owner as personalty. The court stated:

“It is clear it was the legislature’s intent through section 18.1 to ‘freeze’ classifications of property that had been made by assessing officials pursuant to agreements such as that involved here.
The court has consistently held that the assessment of property is not a judicial function but a legislative one, the propriety of which courts will not review absent charges that the assessment was a product of fraud. [Citations.] None of the parties contend that fraud was involved in the agreement in 1974 as to the classification and valuation of CILCO’s Duck Creek Station; We, accordingly, hold that the property of CILCO at the Duck Creek Station, which was classified and taxed as personalty prior to January 1, 1979, may not, under the Replacement Tax Act, now be reclassified as real property for purposes of taxation.” 84 Ill. 2d 275, 282-83, 418 N.E.2d 696, 699-700.

Appellants contend that the holding in CILCO that the classification of property was “frozen” is limited to those cases where the assessing officials had entered into an agreement before 1979 with the owner of the property as to the classification of particular property. We do not agree. We think the statutory language is perfectly clear that property which was lawfully classified as personal property before January 1, 1979, cannot be reclassified as real property after that date, whether the original classification was by agreement of the parties or not.

Appellants argue that the decisions in Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667, and Cherry Bowl, Inc. v. Property Tax Appeal Board (1981), 100 Ill. App. 3d 326, 426 N.E.2d 618, authorize judicial review of assessment classifications each tax year, and that the test for classification as real property is whether the machinery is essential to the proper functioning of the plant, that is the “integrated industrial plant” doctrine. Neither Ayrshire Coal nor Cherry Bowl involved application of the Replacement Tax Act, and more importantly, both involved judicial review of administrative proceedings. Consequently, the case at bar can be distinguished on both grounds.

Appellants insist that the classification of Commonwealth Edison’s equipment as real property was correct according to the integrated industrial plant doctrine; however, the question here is whether the classification of this machinery as personal property prior to January 1, 1979, was lawful. There is nothing in the record before this court to indicate that the original classification of the equipment in question was unlawful. Since appellants did not pursue their administrative remedies to challenge the action of the Department, there is no factual basis for considering the lawfulness of classifying this property as personal property. In the absence of a showing that the original classification was fraudulent or otherwise unlawful, the Department was in violation of the Replacement Tax Act in attempting to reclassify the property as real property. The second reclassification which returned the machinery to its original classification as personalty was, therefore, proper.

For the reasons stated, the judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    VALLEY VIEW COMMUNITY UNIT SCHOOL DISTRICT NO. 365U et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees—(Commonwealth Edison Company, Intervenor-Appellee).
    Third District
    Nos. 82—389, 82—357 cons.
    Opinion filed June 16, 1983.

      Edward Petka, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellant Kent Bosworth.
    Barry L. Moss, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant Valley View Community Unit School District No. 365U.
    Tyrone C. Fahner, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellee Department of Revenue.
    Douglas F. Spesia, of Murphy, Timm, Spesia & Ayers, of Joliet, for appellee Commonwealth Edison Company.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Valley View and the Will County Collector, Kent Bosworth, appeal from the dismissal of their complaint for declaratory judgment brought against the Department of Revenue, challenging the constitutionality of section 21a — 3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 502a — 3) as applied to the Citizens Utilities Company sewage treatment plant and to the Commonwealth Edison electricity generating station located in Will County and Valley View School District. Commonwealth Edison was allowed to intervene in the trial court and has joined the Department of Revenue as an appellee in this cause.

The appellants contend that section 21a — 3 of the Revenue Act of 1939, which deals with the assessment of pollution control facilities for purposes of property taxation, is unconstitutional in that it violates the uniformity provision and the classification limitation of article IX, section 4, of the Illinois Constitution of 1970, and that it creates an unconstitutional exemption from taxation. These same questions were raised and decided in People ex rel. Bosworth v. Lowen (1983), 115 Ill. App. 3d 855, a companion case filed this same date, where we held that section 21a — 3 is not constitutionally infirm. Our ruling there is controlling as to the constitutional questions raised here. In addition, we held that appellants must exhaust their administrative remedies before raising the question of the constitutionality of section 21a — 3 as applied to public utilities. That ruling, too, applies to this appeal.

For the reasons stated, we affirm the dismissal order entered in the circuit court of Will County.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


text:
    THE PEOPLE ex rel. KENT BOSWORTH, County Treasurer, Plaintiff-Appellant, v. EARL LOWEN et al., Defendant-Appellee—(Valley View Community Unit School District No. 365U, Intervening Appellant). CITIZENS UTILITIES COMPANY OF ILLINOIS, Petitioner-Appellee, v. KENT BOSWORTH, County Treasurer, Respondent-Appellant—(Valley View Community Unit School District No. 365U, Intervener-Appellant).
    Third District
    Nos. 82—318 through 82—329, 82—240, 82—241, 82—248 through 82—256, 82-301 cons.
    Opinion filed June 15, 1983.

      Edward F. Petka, State’s Attorney, of Joliet, and Moss & Bloomberg, of Bolingbrook, for appellants.
    Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Kent Bosworth, county collector of Will County, and Valley View Community Unit School District appeal from summary judgment orders entered in property tax proceedings for the years 1975, 1976, 1977, 1978, and 1979. The judgments ordered personal property and real property tax refunds totaling $507,397 to Citizens Utilities Company.

Citizens Utilities Company is a public utility which owns and operates several sewage treatment plants in Du Page Township, Will County, Illinois, as a part of its business of providing sanitary sewer service to certain property in Will County. The Illinois Pollution Control Board certified that as of August 1, 1972, the sewage treatment plants and related personal property, such as pipes and lift stations, were pollution control facilities. As a consequence of that certification, the sewage treatment facilities were required to be assessed by the Department of Revenue pursuant to section 21a — 3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 502a — 3). The Department originally assessed those facilities at of fair cash value. Citizens Utilities challenged those assessments as being excessive under section 21a — 3 by pursuing its administrative remedies, and ultimately this court upheld Citizens Utilities’ position and directed the Department of Revenue to reassess the facilities in question in accordance with the Illinois Supreme Court decision in Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817. In the Commonwealth Edison case, the court held that pollution control facilities belonging to public utilities are to be taxed only to the extent such facilities produce a product sold to customers or to the extent that such facilities reduce the utility’s cost of production of products or services sold by Citizens.

After the case was remanded to the Department of Revenue, revised assessments were computed on the basis of 1.5% of fair cash value equalized at 331/s%, which was consistent with the assessment procedures of all nonutility companies, and the assessments as revised were recertified to the Will County assessment officials. In the meantime, Citizens Utilities had paid its personal and real property taxes under protest and had filed tax objections in the case of real property, and petitions for refund in the case of personal property, for the years 1975, 1976, 1977, and 1978, and tax objections for real property for the year 1979. Valley View School District was allowed to intervene in the tax proceedings. After the Department of Revenue recertified the assessments of Citizens’ pollution control facilities, Citizens filed motions for summary judgment, each accompanied by an affidavit, in all the pending tax proceedings. The trial court found no genuine issue as to any material fact and granted the motions for summary judgment. The county collector and the intervening school district have appealed from those judgment orders.

The appellants contend that section 21a — 3 of the Revenue Act of 1939, which deals with the assessment of pollution control facilities for purposes of property taxation, is unconstitutional in that it violates the uniformity provision and the classification limitation of article IX, section 4, of the Illinois Constitution of 1970, and that it creates an unconstitutional exemption from taxation. These same issues were considered in People ex rel. Bosworth v. Lowen (1983), 115 Ill. App. 3d 855, a companion case filed this same date, where we held that section 21a — 3 is not constitutionally infirm. Our ruling there is controlling as to the constitutional issues raised here.

Appellants also argue that, even if the statute is constitutional, the facilities belonging to Citizens Utilities are fully taxable under the terms of the statute because, unlike other pollution control facilities, these sewage treatment plants actually produce services which are sold to Citizens’ customers. The pleadings and affidavits filed by Citizens recite that it is “a public utility company engaged in part in the business of providing sanitary sewer service to certain residents of Du Page Township, Will County, Illinois ***.” Appellants contend that Citizens’ own pleadings are sufficient to establish that its facilities are economically productive within the meaning of section 21a — 3.

Section 21a — 3 as amended provides that pollution control facilities are to be assessed on the basis of their productive earning value to their owner and that earnings are attributable to a pollution control facility only to the extent that the operation of the facility “results in the production of a commercially saleable by-product or increases the production or reduces the production costs of the products or services otherwise sold by the owner of such facility.” (Ill. Rev. Stat. 1981, ch. 120, par. 503a — 3.) We note the statute does not state that a pollution control facility shall be taxed to the extent it produces a service sold to customers, but rather to the extent it increases the production of services otherwise sold.

We have examined the record in this case, and we find nothing to indicate that these sewage treatment plants produce a commercially saleable byproduct or that the plants increase the company’s ability to provide sanitary sewer service or that the plants reduce the production costs of the sewer service.

Citizens is in the business of disposing of sanitary sewer waste. This service could be performed by merely pumping raw sewage into the nearest river, but environmental standards require that sewer waste be disposed of in a manner that does not pollute the atmosphere or waters of the State of Illinois. Therefore, the sewage treatment plants operated by Citizens do much more than merely dispose of sewer waste; these plants and equipment meet State standards so as to qualify as pollution control facilities. Following this analysis to its logical conclusion, the pollution control facilities do not “increase the production or reduce the production costs” of the service of disposing of sewer waste. Rather the facilities greatly increase the cost of the disposal service otherwise sold by Citizens. For that reason, we conclude that the trial court did not err in approving the reduced assessments determined by the Department of Revenue.

Appellants further contend that the land under the sewage treatment plant is not a pollution control device and therefore should be taxed at fair cash value. We note that the statute provides for a special method of valuing pollution control facilities for taxation purposes, not pollution control devices. We think that is a meaningful distinction. Land can properly be considered a part of the pollution control facility situated upon it.

Furthermore, section 21a — 3 specifically provides that land underlying cooling ponds shall not be considered a part of a pollution control facility. By so providing, the General Assembly indicated an intent that the Department could certify other lands used as a part of the pollution control facility located thereon. There is nothing in the record of this case to indicate that the land included as a part of these pollution control facilities was not in fact an integral part of the sewage treatment plants. Since the appellants have the burden of establishing that the Department’s assessments were erroneous, we find no basis for reversal.

For the reasons stated, we affirm the judgment orders entered in favor of Citizens Utilities Company.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE HOPF

text:
      In re T.D., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. T.D., Respondent—Appellant).
    Second District
    No. 82—110
    Opinion filed June 2, 1983.
    G. Joseph Weller and Manuel Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore J. Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Respondent, T.D., was named in a petition for adjudication of wardship, filed in the circuit court of McHenry County, alleging that the minor had made unlawful use of an intoxicating compound (Ill. Rev. Stat. 1981, ch. 38, par. 81 — 1). Following a hearing, the trial court found that the allegations of the petition had been established beyond a reasonable doubt and placed the minor on one year probation, weekend detention and 50 hours of public service. Respondent appeals, contending that the trial court erroneously considered hearsay evidence and that, in the absence of that hearsay, there was a failure of proof of an essential element of the State’s case.

Officer Anthony Militano of the city of McHenry Police Department testified that shortly after 9 a.m. on September 21, 1981, he overheard some giggling and laughing and observed three juveniles exit from the bushes or hedges behind the McHenry Office Shop. He observed one of the juveniles drop what appeared to be a bag on the ground, which he retrieved. The officer testified that he had built models when he was young, had had occasion to smell model airplane glue and believed that the substance in the bag smelled like model airplane glue. Upon looking into the bag, Officer Militano found a moist substance located at the bottom, and he secured the bag as evidence. He next conducted a pat-down of the three juveniles and found two tubes of glue on respondent’s person, inside the breast pocket of his jacket. The officer recovered another bag at the scene containing a third tube of glue, but he could not recall where the bag came from. The minors were then transported to the police station, where respondent made a statement in which he admitted sniffing the glue.

Officer Roger E. Peckas generally confirmed the testimony of Officer Militano, including Militano’s description of the bag and the appearance and odor of the substance inside. While Officer Peckas was transporting respondent to the police station, respondent stated that before entering the vehicle he had dropped a bag with more glue in it outside. Officer Peckas also overheard respondent admit to having sniffed glue. When asked why they were sniffing glue, respondent said that they “just wanted to see what kind of buzz they would get.”

Randy Boltinghouse and Pat Mieszala, respondent’s companions on the morning of September 21, testified that they had purchased three tubes of glue that morning and had gone into the bushes behind some stores to sniff it. Both testified that respondent had inhaled from a bag containing glue. Mieszala testified that he sniffed the glue “to get a buzz” and responded in the affirmative when further asked if he did it to get high. Officer Gary R. Wigman received the tubes of glue and other physical evidence involved in the case from Officer Militano and retained it in his custody pending trial. Officer Wigman examined the tubes of glue in open court and read a portion of the label aloud. That portion of the label read,

“Do not use near fire or flame.
* * *
Contents: Tuluol [sic]. Avoid prolonged contact with skin. Do not breathe vapors. Harmful, fatal if swallowed. If swallowed, do not induce vomiting. Call physician at once. Keep from small children.”

Defense counsel objected to the reference to Toluol and asked that it be stricken as hearsay. The assistant State’s Attorney responded that the label was a public document which he believed to be required by law. The court overruled the objection, indicating that the evidence speaks for itself. Over objection, it admitted the tubes themselves into evidence.

■Respondent testified on his own behalf that he encountered Boltinghouse and Mieszala on the morning of September 21, at which time they asked him if he wanted to get “about a ten minute buzz” by sniffing glue. After the glue was purchased, respondent observed each of the other minors inhale from the bag. Respondent had previously injured his nose, and when his turn came to inhale from the bag he discovered that inhaling the glue caused his nose to burn. He therefore handed the bag back. Respondent, when asked to define the word “buzz” stated, “[i]t’s not a high. It’s just feeling good ***.” He acknowledged knowing that he would have to purchase model glue for this purpose, but denied having read the label on the tubes which he purchased.

On appeal, respondent challenges the ruling whereby Officer Wigman was allowed to read from the label on one of the tubes of glue concerning the contents of that container. Defendant challenges this as hearsay, an extrajudicial statement offered in court as proof of the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Since the witness had no personal knowledge as to the manufacture of the tube or its contents and since his reading from the label was done for the purpose of proving the identity of those contents, defendant concludes that the trial court was required to exclude this evidence under the hearsay rule. Respondent further maintains that introduction of this testimony denied him his sixth amendment right (U.S. Const., nend. VI) to confront and cross-examine adverse witnesses.

In support of the trial court’s ruling admitting this evidence, the State proffers several theories of admissibility, premised on the notion that there are sufficient circumstantial guarantees of the truthworthiness of the information printed on the label, such that the evidence either is not hearsay or falls within an exception to the hearsay rule. Thus, the State defends the evidence alternatively as a business record, as analogous to a public document or as independently admissible real evidence.

The first question presented by this case is whether hearsay evidence was admitted to prove the contents of the tube of model cement. Respondent does not challenge the admissibility of the tube of glue itself as real or demonstrative evidence. Hearsay has been defined as “ ‘testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 801.1, at 392 (3d ed. 1979).) “However, in many situations, testimony may be offered of an out-of-court assertion to prove the facts of the matter asserted, and yet the reason for the exclusion of hearsay evidence will be absent.” (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226.) “The basis for excluding evidence under the hearsay rule lies in the fact that an opportunity to ascertain the veracity of the testimony is absent [citation], and not that the evidence offered may technically fall within the definition of the term. Thus, the essential requirement of the testimonial offering is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the fact asserted.” 81 Ill. 2d 571, 577-78, 411 N.E.2d 223, 226.

In the instant case, the notation on the label was a statement by the manufacturer as to the contents of the product. As such, it was an assertion of fact by an out-of-court declarant, offered in court by the State, to prove the truth of the matter asserted, i.e., that the glue contained Toluol. When offered for this purpose, the information written on the label and the in-court reading of that information were hearsay. Wirth v. State (1972), 55 Wis. 2d 11, 197 N.W.2d 731.

The State maintains that this evidence, even if hearsay, was admissible as a business record (87 Ill. 2d R. 236; Ill. Rev. Stat. 1981, ch. 38, par. 115 — 5(a)), or, by analogy, as akin to a public document. A writing may qualify as a business record where made as a memorandum or record of an act, transaction, occurrence or event, provided the writing was made in the regular course of business. The State acknowledges that no testimony was received concerning the preparation of the label, but urges that the business character of the label and its information are sufficiently apparent that the evidence is virtually self-authenticating. While it appears from the face of the label that the information in question was intended to be a record of an occurrence or event, and that it was made in the regular course of business, the record fails to establish directly that it was in the regular course of business for the manufacturer to label its product with a description of its contents. Since the “dependability of regular entries rests upon proof of a routine of making accurate records” (E. Cleary & M. Graham, Handbook of Illinois Evidence, sec. 803.10, at 442 (3d ed. 1979)), the inquiry becomes whether there has been any acceptable showing that the label entries are made in the regular course of business.

In the case at bar, however, there was no showing or foundation made for the assertion that these were business records. Typically, business records are admissible upon the testimony of a person familiar with the business and its mode of operation, identifying the writing and establishing that a routine was followed producing accuracy; neither the original entrant nor the individual possessing knowledge of the event itself need be produced. Nussbaum Trucking, Inc. v. Illinois Commerce Com. (1981), 99 Ill. App. 3d 741, 748, 425 N.E.2d 1229; E. Cleary & M. Graham, Handbook of Illinois Evidence, sec. 803.10, at 442 (3d ed. 1979).

The State analogizes this case to one involving a public document. (See People v. Ziebell (1967), 82 Ill. App. 2d 350, 227 N.E.2d 127; People v. Fair (1965), 61 Ill. App. 2d 360, 210 N.E.2d 593.) However, the label in question was not prepared by a public official or agency or for the conduct of public business, and the exception therefore is inapplicable.

Although we do not believe the label was shown to be an exception to the hearsay rule as a business record or a public document, we believe.it was still properly admissible. The label on the glue was sufficiently reliable and trustworthy on its face to be considered an exception to the hearsay rule.

We note that the label on the product in the instant case was required to be on the product. Though the parties make no argument in this regard, there is a statutory requirement that products containing Toluol be labeled accordingly, and this requirement is found in the Uniform Hazardous Substances Act of Illinois (Ill. Rev. Stat. 1981, ch. 1111/2, par. 251 et seq.). That Act provides that any substance which is toxic (Ill. Rev. Stat. 1981, ch. lllVs, par. 252 — 5), an irritant (Ill. Rev. Stat. 1981, ch. HV-k, par. 252 — 8), or flammable (Ill. Rev. Stat. 1981, ch. IllV2, par. 252 — 10) is a hazardous substance when it may “cause substantial personal injury or illness during or as a proximate result of any customary or reasonably anticipated handling or use including reasonably foreseeable ingestion by children ***.” (Ill. Rev. Stat. 1981, ch. lll1^, par. 252 — 4.) Such a substance is considered a “[mjisbranded hazardous substance” unless it is conspicuously labeled with, inter alia, the name and place of business of the manufacturer, the common or usual name or the chemical name of the hazardous substance, an affirmative statement of the principal hazard posed by the substance and precautionary measures describing the action to be taken if the substance is used. (Ill. Rev. Stat. 1981, ch. HV-k, par. 252 — 15.) Among other acts, the. manufacture, distribution, sale of offer for sale of a misbranded hazardous substance is prohibited by law (Ill. Rev. Stat. 1981, ch. HV-k, par. 262), and violators may be subject to various penalties including injunctive relief (Ill. Rev. Stat. 1981, ch. lll1^, par. 266). (See also the provisions of the Federal Hazardous Substances Act, 15 U.S.C. sec. 1261 et seq.) Since the labeling of haz-. ardous substances is required both by Federal and Illinois law, we conclude that the trustworthiness of the label is beyond suspicion and though technically it does not meet the requirements for a business record, it should be an exception from the rule against hearsay.

This analysis appears to be consistent with the general rule regarding trade inscriptions. That rule, as summarized by leading commentators, provides that “[ijnscriptions, signs, tags, or labels purported to have been affixed in the course of business and indicating ownership, control, or origin, should be considered self-authenticating. The basis for self-authentication of these items is the day-to-day reliance by members of the public on their correctness and the unlikelihood of fabrication.” E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 902.6, at 498-99 (3d ed. 1979).

The State cites a line of cases which generally hold that the writing on a product’s label is competent proof of the contents. The courts which advance this theory have reasoned that “inscriptions designedly placed on bottles, boxes, or other packages, in the ordinary way, for the obvious purpose of indicating their nature or contents, may in general be regarded as competent evidence thereof, at least against those persons who have such objects in their possession, or who dispense them to others.” (Sneed v. State (1955), 235 Ind. 198, 201, 130 N.E.2d 32, 33; Kennedy v. State (1913), 182 Ala. 10, 17, 62 S. 49, 52.) The court in Sneed observed that, although the labeled boxes had not been opened or examined as to their contents, “[tjhey were so identified and described that there could be no doubt in the minds of reasonable men as to the actual contents of the boxes or cartons.” 235 Ind. 198, 200, 130 N.E.2d 32, 33; accord, Dixon v. State (1953), 159 Tex. Crim. App. 258, 262 S.W.2d 488.

Here, the label was statutorily required, and the information contained on that label was more than a mere gratuitous statement regarding the contents of the product. In fact, information was combined with warnings about the potential for harm posed by the product and directions as to how to proceed if this potentially lethal product were ingested. Any misinformation in these particulars would not only constitute a violation of law but, where harm resulted to users of the product, would almost certainly provide a basis for imposition of civil liability upon the manufacturer. The reliability of the information on the label was bolstered by the circumstances under which the tube was packaged and purchased. Those circumstances included the fact that the tube was purchased by respondent and his friends from a retailer shortly before its use and that the product was packaged in a tube with a narrow point about the size of a pinhead, thus reducing the opportunities for any tampering with, or adulteration of, the substance. The particular factual circumstances of this case, together with the statutory requirement that the product be labeled in detail, combine to make this admissible in spite of the hearsay rule.

Thus, even though the notation on the label may not be considered a business-record exception to the hearsay rule, we conclude it was sufficiently trustworthy to be an exception. Thus, there was competent evidence that the glue contained Toluol and the corpus delicti was proved by the State.

For the reasons stated the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE TRAPP

text:
      In re ESTATE OF PAUL REIMAN, Deceased (Ilmar Palm-Leis, Ex’r of the Estate of Paul Reiman, Petitioner-Appellant, v. Asta Pill et al., Respondents-Appellees).
    Fourth District
    No. 4—82—0674
    Opinion filed June 8, 1983.
    Walden, Cole, Ohlsen & Coryell, of Decatur (Robert W. Ohlsen, of counsel), for appellant.
    Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, and Spitzer, Addis, Susman & Roskin, of Chicago, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Petitioner limar Palm-Leis (Executor), appeals from a judgment granting summary judgment to respondents Anna Reiman and Asta Pill on their counterpetition for the construction of the last will and testament of Paul Reiman. The effect of that judgment is that most of the estate must pass through intestate succession to decedent’s heirs. We affirm.

Paul Reiman died testate on January 9, 1981, leaving as his only heirs at law his mother, Anna Reiman, and his sister, Asta Pill. Each heir resides in Estonia, U.S.S.R., and was notified that Reiman’s last will and testament had been admitted to probate by written notice required by section 6 — 10 of the Probate Act of 1975. Ill. Rev. Stat. 1979, ch. lKWz, par. 6 — 10.

After the will was duly admitted to probate, Palm-Leis was awarded letters testamentary and filed a petition for will construction in the circuit court seeking a judicial determination of the effect of paragraph 4 of the last will and testament of Reiman. The will is a one-page instrument with only five operative paragraphs. Paragraph 1 provides for payment of expenses and debts by the executor; paragraphs 2 and 3 are specific bequests of $10,000 to each respondent; and paragraph 5 nominates limar Palm-Leis as executor. The disputed provision, paragraph 4, provides as follows:

“4. My executor hereinafter named, shall execute and administrate this will and shall make all distributions of all my tangible and real property in accordance with the aforegoing paragraphs and the verbal guide lines last given by me, and in accord with his best judgment.”

The petition for will construction prayed that paragraph 4 be construed as a general power of appointment in favor of the executor so as to avoid a partial intestacy. The heirs filed an answer to the petition, and counterpetitioned the court to declare paragraph 4 an improper testamentary disposition in violation of the statute of wills and to strike it accordingly. They then filed a motion for summary judgment praying that an order issue rejecting the construction of the executor, that the court find the verbal guidelines provision to be void and paragraph 4 an invalid trust for failing to create enforceable rights in ascertainable beneficiaries, and prayed that the residue of the estate be distributed in accordance with the law of descent and distribution. See Ill. Rev. Stat. 1981, ch. IIOV2, par. 2 — 1.

Before the court ruled on the motion for summary judgment, the executor filed a motion for hearing, requesting the court to take testimony on the circumstances surrounding the will’s execution, including decedent’s relationship with the executor, the effect of a distribution to the heirs who live behind the Iron Curtain, and decedent’s relationship with his heirs at law. The trial court entered a written order granting the heirs’ motion for summary judgment and denying the executor’s motion for hearing. The court found paragraph 4 to be in violation of the statutory requirements for making wills and an incomplete trust since it failed to specify enforceable rights in ascertainable beneficiaries. The court explicitly rejected the executor’s argument that a general power of appointment was created, finding instead that the testator’s intention was to create a trust with the executor as trustee. The court ordered that the estate, except the two specific bequests, be distributed to the testator’s heirs at law in accordance with Illinois law.

On appeal, the executor’s central argument is that paragraph 4 created a valid testamentary general power of appointment in his favor. The heirs advance the same arguments here as below, and raise further the issue that the petitioner has no standing to prosecute this appeal as executor when the relief requested by him would benefit him individually.

No argument has been made by the executor that the direction to him to distribute in accordance with the testator’s verbal guidelines as provided in paragraph 4 is a valid testamentary disposition. No such argument could, in fact, be made since it is fundamental that any disposition by way of verbal guidelines is prohibited by section 4 — 3 of the Probate Act of 1975. Ill. Rev. Stat. 1981, ch. llO1^, par. 4 — 3.

In Wagner v. Clauson (1948), 399 Ill. 403, 78 N.E.2d 203, the testatrix provided in her will for distribution “in accordance with a memorandum of instructions prepared by me and delivered to her [trustee].” (399 Ill. 403, 405-06.) The supreme court found an improper incorporation by reference since the separate document was not in existence when the will was executed, and it was not clear that the document introduced at trial was the same one referred to in the will. The court concluded that the clause at issue attempted to create a trust which failed because it lacked specificity and ordered distribution to the heirs of the testatrix. In discussing the rules for a valid incorporation by reference, the court noted:

“The law requires a will to be in writing and attested as provided by statute. As shown above, under certain conditions a separate writing may become a part of the will, if properly identified, and this constitutes no evasion of the statute on wills, requiring an attested writing, since it is considered a part of the will, to which the attested signatures are attached. ***
* * *
*** [A] bequest or devise in trust, which is subject to the testator’s future directions, or directions which may be at any time changed after the execution of the will, are void unless the directions are in writing and attested in conformity with the statute on wills.” 399 Ill. 403, 411-13, 78 N.E.2d 203, 207-08.

Decedent’s attempt to create an oral plan of testamentary devise by requesting the executor to follow “verbal guidelines” must fail for these reasons. On this view of things, we entertain serious doubt that the remainder of paragraph 4 could be carried out as a result of declaring void such provision, without doing violence to the testator’s intention that these guidelines be followed. (Cf. In re Estate of Gerbing (1975), 61 Ill. 2d 503, 337 N.E.2d 29.) Nevertheless, we will consider the executor’s related argument that it was testator’s intention to create a general power of appointment.

In cases involving the construction of wills, the cardinal rule of construction, to which all others yield, is to determine and to effectuate the intent of the testator so far as such is not contrary to law or public policy. (Cickyj v. Skeltinska (1981), 93 Ill. App. 3d 556, 417 N.E.2d 699.) We agree with the executor that a partial intestacy should be guarded against (see Wise v. First National Bank (1957), 10 Ill. 2d 623, 141 N.E.2d 1; Schuyler v. Zwiep (1976), 42 Ill. App. 3d 91, 355 N.E.2d 554), but point out that such a principle is a guide in the construction of a will and not an absolute principle. A review of the decisions involving powers and trusts leads to the conclusion that this court has no choice but to declare that the testator attempted to create a trust which failed for a lack of specificity.

A power of appointment is defined as an authority (as distinguished from a duty) conferred upon another (donee) by deed or will to appoint or nominate a person or persons (appointee) to receive and enjoy an estate or an income therefrom or from a fund. (Black’s Law Dictionary 1054 (5th ed. 1979); L. Simes & A. Smith, The Law of Future Interests sec. 871, at 345 (2d ed. 1956); In re Estate of Schaaf (1974), 19 Ill. App. 3d 662, 312 N.E.2d 348.) When a power gives the donee the right to choose anyone to enjoy the property, including the donee, a general power of appointment is created; if the appointees are restricted in some manner, a special power is created. (Schaaf.) Contrawise, a trust involves not merely a discretionary authority, but a legal relationship whereby the trustee is under a fiduciary obligation to deal with property in accordance with the instructions of the trustor for the benefit of a third party, cestui que. This distinction between the two is important, for while a power is subject to a discretionary exercise, a trust creates enforceable rights against the trustee. (Schaaf; Restatement (Second) of Trusts sec. 25 (1959).) The issue at bar can be reduced to the simple question: Did the testator intend to direct the property disposition, or did he confer upon the executor a power to appoint the property at his discretion.

The executor argues that the testator did not impose any duties on him since the language of the will was merely precatory rather than mandatory. He points to the fact that testator used the words “verbal guidelines” rather than “directions” or “instructions” in paragraph 4 of the will. He argues further that indicative of the testator’s desire to vest the executor with discretion is the last phrase of paragraph 4 leaving to the executor the authority to distribute “in accordance with his best judgment.” In support of the executor’s contention that the words are precatory, he relies on Cickyj.

In that case, the court held that language in a will providing “ ‘[i]t is my wish and desire that my said cousin *** mails parcels containing food, clothing, jewellery etc. to *** [testator’s relatives] ***’ ” was merely precatory and did not impose a duty on the executor to mail such persons the parcels of food and clothing. (Cickyj v. Skeltinska (1981), 93 Ill. App. 3d 556, 560.) Compared to paragraph 4 of Reiman’s will, it is apparent that Reiman used more than the precatory language. His will contained mandatory language throughout.

Other cases cited by the executor to show that no trust was created and that only precatory language was intended are Newhall v. McGill (1949), 69 Ariz. 259, 212 P.2d 764, and Burton v. Irwin (1971), 212 Va. 104, 181 S.E.2d 624. In Newhall, the court considered language which provided: “Second — I give, devise and bequeath to my sister, Sarah Campbell McGill all my real and personal property to be cared for and disposed of according to my personal directions to her.” (69 Ariz. 259, 261, 212 P.2d 764, 765.) The court there found that the language constituted an outright disposition not in trust and reached this result on the theory that where later words in a sentence of the will cut down an absolute gift previously provided for, they will be disregarded. A further influence on the court was its belief that the testatrix intended to give her sister a beneficial interest. Burton also involved a provision of a will which was either an outright devise, or one in trust. That will provided distribution to the testator’s brother of certain property, and further that “my Brother knows my wishes and will carry them out, to the best of his ability.” There, as in Newhall, the court rejected the trust result, finding the language to have been mere suggestion. Several differences are immediately apparent between this will and those in Burton and Newhall. In both cases the language was directed to relatives of the testator and not the executor, and in Burton the testator did not intend to impose legally enforcible obligations by the use of the word “wishes.” The Newhall court, if faced with Reiman’s will, would undoubtedly have found a trust since that court noted that precatory language directed to an executor would ordinarily be construed to create a trust. The court noted:

“Courts have held that precatory words directed to an executor indicate the objects of a trust in the mind of the testator, while the same words addressed to a devisee do not indicate a trust. [Citations.] In the instant case while the sole legatee and devisee is also the named executrix, yet the reference to ‘directions’ in the will are to her as ‘my sister’ and not as ‘executrix.’ ” 69 Ariz. 256, 264, 212 P.2d 764, 767-68.

In Wagner, our supreme court addressed a similar clause. There the will provided that “ '*** [a]ll the rest, residue and remainder of my property, real, personal, and mixed and wherever situated, I give, devise and bequeath to Katherine Clauson, as Trustee, *** [to distribute in accordance with a memorandum of instructions]. ***’ ” (Wagner v. Clauson (1948), 399 Ill. 403, 405-06, 78 N.E.2d 203, 205.) The court held that this language was inconsistent with an outright bequest and instead was an incomplete trust. See also Thomas v. Anderson (8th Cir. 1917), 245 F. 642; Restatement (Second) of Trusts sec. 125, comment d (1959); Restatement of Property sec. 323, comment e (1940).

The authorities cited by the heirs in support of their argument that the trial court correctly held paragraph 4 to have created an incomplete trust construed will provisions very similar to the language found here, and fully support the judgment below. See Olliffe v. Wells (1881), 130 Mass. 221; Thomas; Tunis v. Dole (1952), 97 N.H. 420, 89 A.2d 760.

At bar, the last will and testament of Reiman similarly attempts to impose mandatory duties on the executor to distribute property in accordance with the provisions of the will and certain verbal guidelines in addition to the executor’s best judgment. The will contains little, if any, indication that testator intended to confer a benefit on executor. The paragraph of the Reiman will, in fact, contains no language of devise or bequest to the executor to indicate that the latter is to receive any beneficial interest in the property in clear distinction from the testamentary language found in the cases cited. Neither the object, subject, or purpose of the attempted trust are set out, and accordingly a resulting trust arises in favor of the testator’s heirs at law. As the executor notes, this result may well have defeated the intention of Reiman to limit the bequest to his mother and sister to $10,000 each. As unfortunate as that result may be, it only underscores the necessity that a testator employ a knowledgeable scrivener to carry out his wishes.

The executor also filed a motion for hearing requesting the court to consider evidence of the circumstances surrounding the testator at the time the will was executed. He argues in this court that the will is ambiguous and that extrinsic evidence should have been considered by the trial court. The rules governing the admission of extrinsic evidence to aid in the construction of a will are well settled in this State, the crucial determination in each case being whether as a matter of law the will is ambiguous, necessitating extrinsic evidence. (See Weir v. Leafgreen (1962), 26 Ill. 2d 406, 186 N.E.2d 293; Whitmore v. Starks (1959), 17 Ill. 2d 202, 161 N.E.2d 254.) At bar, the trial court correctly denied the executor’s motion. The authorities cited by him do not detract from the conclusion that the decedent intended to create a trust by paragraph 4 of his last will and testament. We see no purpose in hearing extrinsic evidence to explain ambiguous provisions of an otherwise invalid disposition.

Finally, the heirs argue the executor of decedent’s estate has no right to appeal the suit on behalf of the estate to seek a construction which would benefit him individually. We disagree. In re Estate of Gerbing (1975), 61 Ill. 2d 503, 337 N.E.2d 29, amply disposes of respondents’ argument. In that case the decedent’s son, the executor of the estate, was named as beneficiary of a testamentary trust set up by his mother under her last will and testament. Under the trust instrument, the son would receive distribution of the principal only upon his wife’s death, or his divorce from her. The trial court refused to hold the provision void as contrary to public policy, and the executor appealed in his individual capacity. On appeal to the supreme court, the argument was made that the executor should be estopped to appeal the decision in his individual capacity since he was also the executor of the estate. This contention was rejected by the court in language applicable here:

“In a suit contesting a will it is the statutory duty of an executor to defend the will. (Ill. Rev. Stat. 1973, ch. 3, par. 93.) In a suit to construe a will the executor is not in the position of defending the will. He is maintaining an action to construe a will and have the duties that are imposed by the will defined by the court. The fact that he is personally interested as a devisee or legatee or otherwise does not preclude an executor from suing for a construction of the will although the final construction may adjudicate his rights as a beneficiary under the will. [Citation.] In fact, in this case, Frank Gerbing, Jr., is a proper party to the construction suit both as the executor of the estate and individually. [Citation.] As a party to the proceeding in his individual capacity he had the right to perfect an appeal from the order of the circuit court. [Citation.] Also, as an executor, he was interested, in having a correct decision in the case and had a right to appeal for the purpose of securing a proper construction of the will. [Citation.]” 61 Ill. 2d 503, 506, 337 N.E.2d 29, 32.

Here, limar Palm-Leis, who possibly would benefit if the will was construed to create a general power of appointment, was also charged as executor with effectuating testator’s oral guidelines and written provisions. He was interested in a proper construction of the will, and he was aggrieved by the determination below. His duties as executor are at stake and the contention that he lacked standing is without merit. Whether he will be able to charge the estate with the expenses of the appeal is a separate issue not yet determined or presented for our decision.

For the foregoing reasons, the order of the trial court granting respondents’ motion for summary judgment is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE MEJDA

text:
    OAK LAWN TRUST & SAVINGS BANK, Trustee, et al. Plaintiffs-Appellees, v. THE CITY OF PALOS HEIGHTS, Defendant-Appellant.
    First District (5th Division)
    No. 81—2738
    Opinion filed May 20, 1983.
    Rehearing denied July 6, 1983.

      Swanson, Ross, Hanfling & Block, of Chicago (Warren L. Swanson and Richard H. Kane, of counsel), for appellant.
    Jack M. Siegel, of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs Oak Lawn Trust & Savings Bank as trustee and Thomas Powell filed a complaint for declaratory judgment against defendant city of Palos Heights asking that the zoning ordinance of defendant be declared invalid insofar as it prevents the redevelopment of an existing school building on the subject property for professional office purposes. Following a bench trial, the court entered judgment for plaintiffs. We affirm.

The subject property (the property) consists of approximately 1.5 acres of land located in the city of Palos Heights, Illinois. It has a frontage of 185.7 feet on the north side of 127th Street and a depth of 340.8 feet along the east side of 69th Court. Currently zoned under the “R” single-family zoning classification, it is subdivided into four single-family residential lots. The property is improved with a one-story grammar school building.

As it fronts the property, 127th Street is a two-lane arterial highway having a traffic count of approximately 14,500 cars per day; 69th Court is a paved street, 18 feet wide, having a 33-foot right-of-way. There are no sidewalks along 69th Court, and there is a storm swale along one side.

Single-family residences abut the property on the north and east sides and on the west, across 69th Court. To the south of the property, across 127th Street, are single-family residences. To the southwest a church and parking lot extend westward, covering the entire block between 69th Court and 70th Avenue. Immediately west of the property, between 69th Court and 70th Avenue, are two residential structures which front on the north line of 127th Street. The structure closer to the property is used as a real estate office although no exterior sign indicates this commercial usage.

Commencing one block west of the property is an area zoned Bl, Restricted Business. Two blocks west of the property is an area zoned B, Business. The heart of this commercial area is located at the intersection of 127th Street and Harlem Avenue, three blocks from the subject property. This commercial area extends outward in all directions from said intersection and contains several restaurants, a dry-cleaning establishment, a vision center, a barber shop, several beauty salons, a funeral home, a travel agency, a medical center, a pharmacy and a bank and trust company. Also located within this area are a supermarket, gasoline and service stations, a home center, a kitchen and bath shop, a pet store, and various other offices and shops.

Powell, plaintiff and beneficial owner of the property, purchased it at a public auction in March of 1975 from the Palos Heights Board of Education School District No. 128. He paid $100,000 for the property, including the land and building. The existing one-story structure contains 11,720 square feet and was utilized as a grade school until 1975.

Since acquisition the property has, for the most part, remained vacant and unused. Portions of the building have been leased for brief periods and used as a church, a political campaign headquarters, a dancing school, and for various other activities. Plaintiffs have tried to sell the property but have received only one signed offer to purchase. That offer was conditioned upon approval by the city of a prior request for a change in zoning, which request was denied. Subsequent to that denial, the city submitted an unsigned contract to purchase the property for $165,000 but later withdrew its offer.

Plaintiffs propose to remodel the existing structure in accordance with a plan submitted to the trial court for use as a professional and medical office building. The area of the building would be increased from 11,720 to 15,800 square feet, of which approximately 11,500 square feet would be rentable office space.

Rolf C. Campbell, a city planning consultant, testified that in his opinion the highest and best use of the property would allow productive use of the existing structure; the proposed use would have no material adverse effect on surrounding properties and is reasonable from a zoning and planning standpoint; and although the property is suitable for single-family residences, that is not its highest and best use. He stated that, as proposed, the developed property will have a market value of approximately $870,000 and will provide the city with $46,000 annually in tax revenue; the value of the property would be less for single-family use; approximately 100 persons would be employed in the subject property as proposed; and the proposed use would have no significant impact on 69th Court.

Also testifying for plaintiff was Joseph Zgonina, a registered professional engineer involved in the areas of civil and traffic engineering. He stated that, based on the existing and projected volume of traffic, the proposed development of the property would have no adverse impact on the existing roadway system and, further, that 69th Court has more than adequate capacity to accommodate the projected volume of traffic.

William A. McCann, a real estate appraiser, testified that the highest and best use of the property would be achieved through renovation of the existing structure and development of professional offices. He stated that the value of the property is $80,000 as presently zoned. He testified, however, that the property is unsuitable for the purpose for which it is presently zoned based on the fact that there are no new single-family residences being constructed facing 127th Street, the market for single-family housing is depressed, and in order to use the property in accordance with its present zoning the existing structure would have to be demolished. He concluded that the proposed renovation is a reasonable use of the existing structure and would not diminish the value of surrounding properties.

Defendant presented the testimony of planning and zoning consultant Allen Trayser and real estate appraiser Thomas M. Collins who concurred that the highest and best use of the property is single-family residences. Collins presented evidence that the value of the property developed for single-family residences is $135,000. Traffic engineer Gerald Lindgren testified that although 127th Street has adequate capacity to accommodate the volume of traffic, 69th Court cannot adequately accommodate the type of traffic that will be generated. A school teacher and alderman of the city of Palos Heights stated that in her opinion the proposed development would have an adverse impact on the health, safety and welfare of the community due to the anticipated increase volume of traffic. Other area residents testified that they thought that the proposed use of the subject property would result in more traffic and would adversely affect property values in the immediate area.

Following a bench trial at which the above evidence was presented, the circuit court found for plaintiffs and declared (1) that the zoning ordinance is unconstitutional as applied to the subject property insofar as it prevents the proposed use by plaintiffs, and (2) that the proposed use of the subject property is reasonable.

Opinion

On appeal, defendant first contends that the trial court erred in finding that the “R” single-family zoning classification is without any reasonable justification insofar as it precludes plaintiffs’ proposed use of the property. It is well established in Illinois that a zoning ordinance is presumed valid and will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899; County of Cook v. Priester (1976), 62 Ill. 2d 357, 342 N.E.2d 41.) A party challenging a zoning ordinance must establish by clear and convincing evidence that the ordinance as applied is invalid (Tomasek) and, further, that the proposed use of the property is reasonable. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 426 N.E.2d 1276.

The factors to be considered in determining the validity of a zoning ordinance are as follows: (1) the existing Uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restriction; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the area in the vicinity of the subject property. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.) The validity of each zoning ordinance must be determined on its own facts and circumstances; no single factor is controlling. La Salle; Ward v. County of Cook (1979), 68 Ill. App. 3d 563, 386 N.E.2d 309.

A review of the record discloses that the court properly considered all of the factors set forth in La Salle and that its decision that the zoning ordinance is invalid as applied to plaintiffs’ proposed development is supported by the evidence. Regarding the existing uses and zoning of nearby property, the testimony revealed that although the property immediately adjacent to the subject property is zoned R, Single-family Residential, less than two blocks away is a heavily concentrated area of commercial development. Such commercial area actually begins only one block from the property and is separated from the property by two houses, one of which is used as a real estate office. A church and large parking lot are situated directly across 127th Street from the property on the southwest corner of 69th Court, and a dental office building is located approximately V-lz blocks east of the subject property.

The second and third factors for consideration are the extent to which plaintiffs’ property values are diminished by the particular zoning restriction and the extent to which such diminution of property values promotes the health, safety, morals or general welfare of the public. First, the evidence clearly shows that the present zoning classification decreases the value of the property. Witnesses for plaintiffs testified that the value as zoned for single-family residences is $80,000 but, if used as plaintiffs propose, the value would be $250,000. Defendant’s witness testified that the value as zoned is $135,000. Under the present zoning there is, therefore, a loss in value of between $115,000 and $170,000. Defendant argues that plaintiffs have utilized the property for uses permitted under the present zoning classification by leasing it as a church and a school and, furthermore, that plaintiffs could easily sell the property for such purposes. However, the property has produced only $11,000 in rental income since its acquisition and attempts to sell or lease the property have been futile. The foregoing evidence is sufficient to establish that the value of the subject property is diminished by its present zoning.

The next consideration is whether such diminution in value promotes the health, safety, morals or general welfare of the public. The principal opposition to plaintiffs’ proposed use is that it will result in a substantial increase in traffic on 127th Street and on 69th Court. However, the evidence is contradictory as to whether such increased traffic will be detrimental to the public health, safety or general welfare. Plaintiffs’ expert witness testified that both 69th Court and 127th Street have adequate capacity to accommodate the projected volume of traffic and that the proposed development of the property would not have an adverse impact on the existing roadway system. A witness for defendant concurred in the finding that there was adequate capacity to accommodate the increased traffic but made an exception for access provisions to the proposed development. Similarly, conflicting testimony was presented regarding adequacy of parking and whether the proposed use constitutes a more intense impact upon the surrounding area than that which existed when the building was utilized as a grammar school. The credibility of witnesses and the weight to be accorded their testimony are determined by the trier of fact (Northbrook Trust & Savings Bank v. County of Cook (1977), 47 Ill. App. 3d 879, 889, 365 N.E.2d 433, 441, citing Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, 181, 148 N.E.2d 584, 591), and such findings will not be disturbed unless manifestly against the weight of the evidence. (Northbrook.) Accordingly, the finding that the health, safety, morals or general welfare of the public are not promoted by the diminution in the value of plaintiffs’ property will not be disturbed.

Although area residents testified that they believe plaintiffs’ proposed use will result in increased traffic and a diminution in their property values, this is not sufficient to uphold the validity of a zoning ordinance. Property use cannot be restricted or limited merely because neighboring property owners so desire, or because they believe it will protect the value of their residences. (Regner v. County of McHenry (1956), 9 Ill. 2d 577, 138 N.E.2d 545; Northbrook.) To be held valid, a zoning restriction must have a rational connection with the promotion of public health, safety, morals or welfare. (Regner-, Northbrook.) The evidence is sufficient to support the finding that the zoning ordinance at issue does not promote the public health, safety, morals or welfare.

The fourth factor is the relative gain to the public as compared to the hardship imposed upon the individual property owner. As the foregoing review indicates, enforcement of the present zoning results in no demonstrable benefit to the public.

The fifth factor is the suitability of the property for the zoned purposes. Plaintiffs presented evidence to show that the property is not suitable for single-family residences, for which it was zoned. Plaintiffs’ repeated attempts to lease or sell the property for uses permitted under such zoning have not been successful. Developing the property for residential use would require that the existing structure be destroyed. Moreover, testimony at trial demonstrated that the housing market for single-family residences is generally depressed and that there have been no single-family residences constructed fronting on 127th Street in the last decade. (See Northbrook.) The evidence supports a finding that the property is not suitable for single-family residence use as zoned.

The final factor is the length of time the property has been vacant as zoned, considered in the context of land development in the vicinity of the subject property. The property has been vacant, for all intents and purposes, since it was acquired in 1975, and the evidence indicates that it will remain so under the present zoning restriction. Testimony was presented that commercial development, expansion and renovation have taken place within the last 10 years, but that there has been no residential construction on 127th Street in the vicinity of the property within the last six years. The existing structure is not likely to be used for any purpose for which it is presently zoned. Although it is possible that the existing structure could be demolished and the property developed for single-family residential use, testimony at trial revealed that such development would be impractical in consideration of the generally depressed state of the market for single-family residences and of the nature of recent construction on 127th Street. Accordingly, the findings that the character of the area surrounding the property would not be adversely affected, that no traffic problem would result from plaintiffs’ proposed use, that the zoning ordinance is invalid insofar as it precludes plaintiffs’ proposed use, and that the proposed use is reasonable, all are supported by the evidence. Therefore, the trial court’s findings will not be disturbed since they are not against the manifest weight of the evidence. Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21.

Defendant next contends that the court erred by placing undue weight on the fact that the school building exists on the property. No single factor is controlling in a determination of the validity of a zoning ordinance; each case must be decided on its own facts and circumstances. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) The facts and circumstances of plaintiffs’ proposed use include not only the land, but also the use and redevelopment of the existing school building located thereon. The proposed use is not a permitted use of either such building or the land under the restrictions of the present zoning classification. Therefore, the court did not err but properly considered the school building, as then existing and the redevelopment thereof, together with the land constituting the property in determining both the validity of the zoning ordinance as applicable and the reasonableness of the proposed use.

Defendant further contends that the trial court erred in finding that the sale of the property to plaintiffs by a public agency, the school district, exempted the property from the zoning ordinance imposed by another public agency, defendant city, which ordinance regulates use, parking and bulk area. Defendant relies upon one paragraph, of the final judgment order in which the court found that “the same public represented by the school district in selling the land and building to plaintiffs for $100,000 now seeks to deprive the plaintiffs, through the actions of the defendant City, of the use and value of said property.” The contention is without merit. The trial court did not thereby find the property exempt from the zoning ordinance nor base the invalidity thereon. Instead, the finding was merely incidental to determining the relative gain to the public and the hardship upon plaintiffs, and also whether the zoning as applied to the property bears substantial relationship to the public health, safety and welfare. American National Bank & Trust Co. v. Village of Oak Lawn (1979), 81 Ill. App. 3d 952, 401 N.E.2d 963; Littlestone Co. v. County of Cook (1974), 19 Ill. App. 3d 222, 311 N.E.2d 268.

The final issues raised by defendant concern evidentiary matters. The first is defendant’s contention that the court erred by admitting into evidence a written real estate appraisal of the subject property prepared by John Shanahan Associates and dated March 18, 1980. The appraisal was prepared pursuant to a request of the city attorney incident to a prior offer of defendant to purchase the property, which offer was then withdrawn. The appraisal contains the appraiser’s opinion that, taking into consideration the location and physical features of the property and the current commercial market in the area, the highest and best use for the property would have been as a professional office facility. The appraisal concludes, however, that upon consideration of the city’s denial of several zoning change requests “the highest and best [use] of the subject property, at this time, in our opinion, would be the permitted uses under the existing zoning, R-Residence.” Plaintiffs secured the appraisal in discovery and utilized it in the cross-examination of Collins, defendant’s real estate expert, regarding his opinion that the highest and best use of the property is for single-family residences. The court allowed such usage without the testimony of the appraiser and over defendant’s objection, stating that it was for cross-examination only, not as substantive evidence. At the close of defendant’s case, plaintiffs offered the appraisal for admission into evidence in rebuttal of Collins’ testimony. In its final order the court overruled all objections and admitted the appraisal into evidence.

Defendant contends that the appraisal is hearsay and irrelevant and, therefore, its admission was error. Plaintiffs argue first that the appraisal is “discoverable and admissible,” citing City of Bloomington v. Quinn (1969), 114 Ill. App. 2d 145, 252 N.E.2d 10. Quinn held that the court’s failure to allow discovery of an appraisal constituted error, albeit harmless error. The question in the instant case is, however, not discoverability but admissibility, and we do not find Quinn applicable. Plaintiffs argue next that the appraisal was properly admitted under the public records exception to the hearsay rule. The Illinois Supreme Court has defined those records which come within such exception stating: “At common law it has long been settled as an exception to the hearsay rule that records kept by persons in public office, which they are required either by statute or the nature of their office to maintain in connection with the performance of their official duties, are admissible in evidence and are evidence of those matters which are properly required to be maintained and recorded therein.” (People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205, 211-12, 190 N.E.2d 780, 784.) In the instant case there is no evidence that any of the above elements are present and, therefore, the appraisal does not come within the public records exception to the hearsay rule. Moreover, records which concern causes and effects, involve the exercise of judgment and discretion, expressions of opinion, or the drawing of conclusions are not admissible under the public records exception. (Lombard Park District v. Chicago Title & Trust Co. (1969), 105 Ill. App. 2d 371, 245 N.E.2d 298.) In the instant case the appraisal clearly involves the exercise of judgment and the expression of an opinion and, therefore, does not come within the public records exception.

Plaintiffs argue also that the appraisal is admissible as an admission by an agent. A statement of an agent, when made in the exercise of his duties and pertaining to matters within the scope of his authority, may constitute an admission binding on the principal which can be introduced substantively against the principal. (Taylor v. Checker Cab Co. (1975), 34 Ill. App. 3d 413, 339 N.E.2d 769.) Here, however, there is no evidence that the author of the appraisal was an agent of defendant or was expressly authorized to make statements for defendant, nor is there evidence that defendant ever ratified the appraiser’s statement or adopted it as its own. (See Taylor.) In the absence of such evidence, the appraisal is inadmissible against defendant and, therefore, the court erred in admitting it into evidence.

Error in the admission of evidence does not require reversal, however, where there has been no prejudice (Cowan v. Wheeler (1979), 76 Ill. App. 3d 259, 395 N.E.2d 32) or where the evidence has not materially affected the result. (Walters v. Taylor (1976), 36 Ill. App. 3d 934, 344 N.E.2d 765.) In the instant case, plaintiffs requested admission of the appraisal only on the issue of the highest and best use of the property. Both sides had presented the. testimony of expert witnesses on that issue. In view of the fact that the information contained in the appraisal regarding the highest and best use of the property had already been received into evidence from other sources, the admission of the appraisal into evidence for the limited purpose stated could not be construed as prejudicial to defendant or constitute reversible error. (Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 408 N.E.2d 737; see Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 279 N.E.2d 186.) Where the testimony in a trial without a jury is contradictory, the weight to be given to that testimony is a matter for the trial court and its findings will not be disturbed unless against the manifest weight of the evidence. (Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239, 353 N.E.2d 61.) In view of the proposed limited use of the appraisal and applying the principle that only competent evidence is considered by the trial court (Padgett v. City of Oakbrook Terrace (1967), 89 Ill. App. 2d 244, 231 N.E.2d 466), we conclude that defendant was not prejudiced by the admission of the appraisal and that such error does not warrant reversal.

Defendant next contends that the court erred in refusing to strike portions of testimony allegedly constituting an attempted impeachment of defendant’s former mayor, William J. Bailey. Plaintiffs called Bailey as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), now codified as section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), and questioned him regarding statements purportedly made in 1979. Responding to plaintiffs’ questions, Bailey testified that he did not recall having stated that he proposed to negotiate with Powell to buy the property for the city after the city’s denial of plaintiffs’ request for a zoning change. Bailey also stated that he did not recall stating that he would personally veto plaintiffs’ zoning request. Plaintiffs made no attempt to prove the allegedly impeaching statements.

Although the rule in Illinois regarding impeachment by a prior inconsistent statement is that once the foundation is laid counsel must offer proof of the allegedly impeaching statements (Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491), failure to prove the impeachment does not of necessity constitute reversible error. (People v. Williams (1969), 105 Ill. App. 2d 25, 245 N.E.2d 17.) In view of the substantial amount of evidence presented in the instant case and the minimal relative importance of the above questions and answers, we conclude that although it constitutes error, plaintiffs’ failure to prove the impeaching statements does not warrant reversal. See Walters v. Taylor (1976), 36 Ill. App. 3d 934, 344 N.E.2d 765.

Finally, defendant contends that the court erred in failing to declare a mistrial after the introduction of what defendant characterizes as “inadmissible, inflammatory and prejudicial evidence.” The evidence objected to consists of questions and answers concerning Bailey’s involvement in other unrelated litigation which arose out of his alleged misconduct in office, the above-described attempted impeachment and the admission of the appraisal report. In a case relied upon by defendant, the court stated that although it is presumed that the trial judge considered only competent evidence, this presumption may be rebutted where the record affirmatively shows the contrary. (Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 371 N.E.2d 855.) There is no basis for us to conclude that the court relied upon any inadmissible evidence in reaching its decision. Bailey’s testimony concerning possible involvement in other litigation was not so unduly prejudicial nor inflammatory as to require reversal. Regarding admission of the attempted impeachment and the appraisal report, as stated above, it likewise does not appear that defendant was prejudiced thereby. Any error was at most harmless. Moreover, in a trial without a jury, error in admitting testimony will be regarded as harmless if there is sufficient evidence to sustain the judgment of the court. (McFail v. Braden (1960), 19 Ill. 2d 108, 166 N.E.2d 46; In re Wheeler (1980), 86 Ill. App. 3d 564, 408 N.E.2d 424.) Our examination of the record shows that there was sufficient evidence to support the judgment of the trial court. We find, therefore, that the court did not err in refusing to declare a mistrial.

Accordingly, for the reasons stated herein, we affirm.

Affirmed.

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