author: JUSTICE JIGANTI

text:
    HARRY NUTTER et al., Plaintiffs-Appellants, v. WILLIAM BLAIR, Fire Commissioner of the City of Chicago, et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2753
    Opinion filed December 10, 1981.
    Jacobs, Bums, Sugarman & Orlove, of Chicago, for appellants.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, certified career-service paramedics employed by the Chicago Fire Department, brought this action against the defendants in an attempt to recover overtime pay, or, in the alternative, compensatory time off for their participation in a training program held during off-duty hours. On cross-motions of the parties, the trial court entered a summary judgment which denied the plaintiffs’ request for overtime pay but allowed their request for compensatory time off. The plaintiffs appeal only from the order denying overtime pay, and the defendants have not cross-appealed from the order allowing compensatory time. Consequently, the only issue involved in this appeal is whether the plaintiffs are entitled to overtime pay.

The plaintiffs alleged that at the time they were hired a minimum of 120 curriculum hours was required for initial certification as a paramedic. In the summer of 1978, the Chicago Fire Department’s Bureau of Emergency Medical Services began to issue orders to paramedics that they would have to attend an “Advanced Paramedic Course,” the purpose of which was to increase the number of precertification curriculum credits to a 390-hour level. They were informed that satisfactory completion of the course was a condition of their continued employment with the Chicago Fire Department.

The plaintiffs were instructed to attend the training course during their off-duty hours. Paramedics employed by the department work the same 24-hour tours of duty as do Chicago firefighters. Their work schedule is established by section 21.003 of the Chicago Fire Department’s Rules and Regulations as follows:

“The duty schedule shall be arranged in such a manner that members and employees shall not be on duty for more than 24 hours in any consecutive 72 hours, excepting that, in the event of an emergency, the Chief Fire Marshall 9 9 9 shall require members and employees to be on duty during the period of such emergency.”

At the time the plaintiffs were ordered to attend the training course they were notified that because the program was compulsory “compensatory time is being offered.” However, the plaintiffs alleged that no paramedic who attended the training course ever received any compensatory time off.

The plaintiffs filed suit in the circuit court to contest the defendants’ authority to compel them to attend the training course and to establish their right to overtime pay as compensation for the time they spent attending the course. The defendants admitted during the course of the proceedings that they had no legal authority to require the plaintiffs to attend the course. This is because section 25.1 — 9 of the Chicago Municipal Code guarantees incumbent employees, such as the plaintiff career-service paramedics, that they “shall be continued in their respective positions without further examinations * 9 However, the defendants denied that they were required to give the plaintiffs overtime pay as compensation for the hours spent in the training course. They maintained that the plaintiffs were entitled only to compensatory time off. The trial court granted summary judgment in favor of the defendants, but ordered that the plaintiffs were to receive compensatory time off with the allocation of such compensatory time to be left to the defendants’ good judgment. The plaintiffs subsequently brought this appeal.

The sole issue involved in this appeal concerns the form of compensation which the plaintiffs are entitled to receive for their participation in the training program. The parties are agreed upon the applicable law. They both cite Harris v. City of Edwardsville (1973), 11 Ill. App. 3d 438, 296 N.E.2d 637, for the proposition that public employees have no right to overtime pay unless a statute or ordinance confers such entitlement. The court in Harris stated that:

“An employee of a municipality cannot recover compensation for work done outside his regular hours of employment or for work done outside the scope of his regular duties unless there was an agreement by the municipal authorities to make compensation at such extra time or for such extra services or unless a statute or charter provisions requires extra pay for overtime work.” Harris, 11 Ill. App. 3d 438, 441, 296 N.E.2d 637, 639-40.

The plaintiffs claim that section 25 — 7 of the Chicago Municipal Code supplies the requisite legal authority for the payment of overtime pay. That section provides as follows:

“The rate for overtime for employees paid on a monthly or on an annual basis, unless otherwise specifically provided, shall be on the basis of fifty-one cents per hour per one thousand dollars of annual salary rate of such employees, provided that such overtime rate shall be not less than one dollar per hour, and it be further provided, that the rates herein established for overtime for the employees mentioned shall be in lieu of any other rate heretofore established.”

The plaintiffs maintain that the terms of this ordinance are clear and unambiguous and require that the plaintiffs receive overtime pay, not time off in lieu of such pay. The defendants argue that section 25 — 7 merely sets the rate of overtime pay and does not establish when a person becomes entitled to it. They contend that municipal employees seeking to collect overtime pay still must point to an agreement or ordinance specifically entitling them to collect that rate of pay.

To support their position, the plaintiffs cite Alewine v. City Council (S.D. Ga. 1981), 505 F. Supp. 880, which they maintain is directly on point. In Alewine, bus drivers in Augusta, Georgia sued the city for overtime pay based upon a city ordinance. The court ruled in favor of the bus drivers and found the city ordinance to be “glaringly explicit,” with respect to overtime pay. (Alewine, at 893.) The ordinance relied upon in Alewine, however, is clearly distinguishable from section 25 — 7. It specifically provided that “such time devoted by such employee in excess of a forty hour work week shall be allowed the employee as overtime with time and one-half pay.” (Emphasis added.) (Alewine, at 883.) Section 25 — 7 contains no such explicit language.

We therefore agree with the defendants that section 25 — 7 is not sufficient to confer upon the plaintiffs an entitlement to overtime pay as compensation for their participation in the training program during off-duty hours. Unlike the ordinance in Alewine which expressly established the employees’ right to receive overtime pay, section 25 — 7 is clear on its face and merely sets the rate of overtime pay for municipal employees.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

ROMITI, P. J., and JOHNSON, J„ concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    VINCENT R. DALEY, JR., d/b/a Daley & Associates, Plaintiff-Appellant, v. RICHARD G’SELL et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2301
    Opinion filed December 11, 1981.

      John J. Corbett and Stuart C. Wallace, both of Chicago, for appellant.
    Robert Handelsman and Emil Shafran, both of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal arises from an action brought by plaintiff, Vincent R. Daley, Jr., d/b/a Daley & Associates (Daley), a real estate broker, against defendants, Richard G’Sell (G’Sell), Sheldon J. Weinstein (Weinstein), Robert B. Smith (Smith), Ronald A. Friedman (Friedman), James W. Kosbie (Kosbie) and 1931 North Lincoln Park West, an Illinois Limited Partnership (Park West), to recover a real estate brokerage commission. Counts II, IV and VI of Daley’s six-count second amended complaint were dismissed with prejudice by the trial court. Daley appeals, contending that the dismissal of these counts was erroneous. The only questions raised for review concern whether counts II, IV and VI of the second amended complaint state a cause of action. In order to resolve these questions, it is necessary to examine the pleadings.

The second amended complaint alleges the following.

Daley employed a saleswoman named Jacqueline Klein (Klein) in his real estate brokerage business. G’Sell solicited the service of Daley, through Klein, to aid him in procuring property located at 1936 North Clark Street in Chicago (the premises). On November 17, 1977, G’Sell entered into an oral agreement with Klein, as Daley’s agent, to act as brokers for G’Sell “and his designates” in the purchase of the premises. In return for the brokerage services, G’Sell agreed to pay Daley $100,000 at the closing.

During the months of November and December of 1977, Klein performed the following services for G’Sell pursuant to the oral agreement: (1) ascertained that the premises were subject to a lease; (2) determined that Weinstein was one of the lessees of the property and that the lease contained an option to purchase; (3) kept G’Sell’s identity a secret until Klein authorized its disclosure to Weinstein; (4) obtained “relevant information” concerning the lease from Weinstein and conveyed the information to G’Sell; (5) conducted negotiations between G’Sell and Weinstein regarding the purchase of the lease; (6) introduced G’Sell to Weinstein on December 2, 1977, in an effort to further negotiations between the two; and (7) obtained current rent roles, floor plans, income and expense items, architectural plans and other information regarding the lease and furnished them to G’Sell.

G’Sell, along with Smith and Friedman, formed a partnership (Park West) for the purpose of owning the legal rights in the leasehold of the premises which were to be later taken in a land trust. Weinstein and Kosbie were the beneficial owners of another land trust which held legal title, as lessee, to the leasehold interest in question. On December 24, 1977, a fire occurred at the premises. On three subsequent dates, Weinstein falsely represented to Daley that the fire and its aftermath prompted him to withdraw the premises from the market. Then, during January and February of 1978, Weinstein, Kosbie, G’Sell, Smith and Friedman conspired together, with knowledge of Daley’s involvement as a broker, to conduct further negotiations for the sale of the lease, with the intent to defraud him out of the brokerage commission.

A contract dated February 27, 1978 was executed between the defendants which resulted in the purchase and sale of the leasehold interest in the premises without payment of Daley’s brokerage commission. That contract was executed by Smith on behalf of himself, G’Sell and Friedman, without Daley’s knowledge. Weinstein and Kosbie’s trustee executed the contract on their behalf. The transaction was closed through an escrow in July of 1978.

Although Daley, through Klein, rendered his services at G’Sell’s request, Smith and Friedman, individually and as agents for Park West, • had knowledge of these services and ratified them by participating in the transaction and consummating the purchase of the lease.

Count I of Daley’s second amended complaint is directed against G’Sell only and seeks $100,000, based upon breach of the oral brokerage agreement. Count II demands judgment of $100,000 from G’Sell, Smith, Friedman and Park West, in that they were unjustly enriched at Daley’s expense when his efforts led to the purchase of the lease without payment of any brokerage commission. Count III, alleging that Weinstein induced G’Sell to breach his contract with Daley, seeks $100,000 in actual damages and $100,000 in exemplary damages against him. Count IV charges G’Sell, Smith, Friedman and Weinstein with a civil conspiracy to defraud Daley of his commission and prays for actual and punitive damages totalling $200,000. Count V, duplicating the allegations of count IV, seeks recovery from Kosbie on the theory that he was a partner of Weinstein in the operation of the leased premises when the unlawful acts occurred. Finally, count VI merely adds Park West as a defendant in the conspiracy since G’Sell, Smith and Friedman performed the fraudulent acts as agents of Park West.

Since we are with the propriety of the dismissal of counts II, IV and VI of the second amended complaint, we now turn to those counts.

Opinion

Daley contends that count II properly pleads a cause of action for restitution based on unjust enrichment or contract implied in law against the defendants. Count II alleges that Smith, Friedman and Park West, knowingly accepted the benefits from the breach of G’Sell’s oral agreement with Daley, and were unjustly enriched by the sum of $100,000 — the amount of savings realized by them in refusing to pay Daley’s brokerage commission.

A contract implied in law, or a quasi-contract is ficticious and arises by implication of law wholly apart from usual rules relating to contracts. (Town of Montebello v. Lehr (1974), 17 Ill. App. 3d 1017, 309 N.E.2d 231.) It is equitable in nature and is predicated on the fundamental principal that no one should unjustly enrich himself at another’s expense. (First National Bank v. Glenn (1971), 132 Ill. App. 2d 322, 270 N.E.2d 493.) Where there is an obligation or duty and a receipt of a benefit to such duty, the law may imply from the circumstances or the relation of the parties a promise to pay. Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614.

In our view, the allegations of count II do not establish a duty under this theory on the part of Smith, Friedman and Park West, to pay Daley the commission allegedly promised him in the oral agreement with G’Sell. Daley and G’Sell are the only parties to the alleged oral agreement in question. It is well-established law in this jurisdiction that where work is done under a contract, the suit must be between the parties to the agreement; third parties are not liable on the basis of an implied undertaking even if they are benefited by the work. (Compton v. Payne (1873), 69 Ill. 354; Walker v. Brown (1862), 28 Ill. 378.) In Walker, one Shergold contracted on behalf of himself and Walker to have work done by Brown. After completion of the work, Brown sought payment from Walker. Walker denied the authority of Shergold to execute the contract on his behalf and refused to pay. The court ruled that no recovery could be had against Walker under a theory of quasi-contract, even though he was benefited by the work since he was not a party to the contract. In Compton, Payne brought suit against Livingston Compton to recover for work and labor upon an implied undertaking. Relying on Walker, the court denied recovery to Payne since the contract for the work existed between him and Reuben Compton, not with Livingston Compton, who was incidentally benefited by it. Since Smith, Friedman and Park West did not contract with Daley, we hold that they are not liable to Daley for the work he allegedly performed under his agreement with G’Sell under the theory of quasi-contracts.

More recently, in Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 404 N.E.2d 1104, this court denied recovery under the theory of quasi-contract to a cooperating broker that sought a brokerage commission from a seller whose property it had shown. Even though the plaintiff alleged in its complaint that it had procured the purchaser and arranged the sale, the court found no equitable basis to compensate the broker. In so ruling, the court noted that plaintiff performed its services for another party (the seller’s assignor), that plaintiff had no expectation of receiving payment from the seller when the services were performed, and that the seller never accepted or acknowledged that plaintiff was the broker or agent in connection with the sale of the property.

Similarly, in the present case, Daley performed his services for G’Sell, not for Smith, Friedman and Park West. Also, Daley alleges no facts showing that the defendants acknowledged that Daley was their broker, and there was, therefore, no expectation of receiving payment fr.om them. We cannot conceive of an equitable basis to compensate Daley under these facts.

Furthermore, we note that count II alleges that Smith, Friedman and Park West, “accepted and ratified” the services of Daley with the knowledge that he performed them, by purchasing the lease of the premises. We do not believe that these allegations are sufficient, however, to state a cause of action under a theory of ratification. It is true that an alleged principal may become liable to compensate the broker for his unauthorized acts by subsequent ratification of the broker’s acts. (Carlson v. Marshall (1912), 174 Ill. App. 438.) However, it is axiomatic that ratification does not result from the affirmance of a transaction with a third person unless the one acting as agent purported to be acting for the ratifier. (Restatement (Second) of Agency §83 (1958).) Count II is devoid of any allegations that Daley acted on behalf of Smith, Friedman and Park West when he performed his alleged brokerage services. Count II only alleges that Daley acted “at the special instance and request of defendant Richard G’Sell” in rendering his work. Therefore, these three defendants could not have ratified acts that were not done on their behalf. Nor can it be argued that G’Sell acted as an agent for Smith, Friedman and Park West when he entered into the alleged oral contract with Daley. Gount II simply states that G’Sell entered into the agreement with Daley to act as a broker for G’Sell “and his designates” in the purchase of the lease. The term “designates” is vague, conclusionary and does not denote an agency relationship. Moreover, there are no allegations that Park West, the limited partnership, was in existence at the time of the formation of this contract or that G’Sell was acting on its behalf or on that of its partners, Smith and Friedman at that time. In fact, no date is alleged as to when the partnership came into existence.

Count II reflects that Smith and Friedman’s involvement with any wrongdoings occurred near the time of the purchase of the lease, long after the alleged oral contract was made. The trial court, in dismissing count II, noted that Smith, Friedman and Park West were “too far removed” from the oral agreement, and that they “came onto the scene” months after it was created. We agree with the trial court that there are no facts alleged which establish that either G’Sell or Daley performed any acts at the behest of these defendants that were subject to their later ratification.

Daley next contends that count IV of the second amended complaint states a cause of action in civil conspiracy against G’Sell, Smith, Friedman and Weinstein.

Count IV alleges that Weinstein, “falsely and with intent to deceive and defraud,” told Klein that due to the fire, the premises were not for sale; that with the knowledge of the brokerage arrangement, defendants “conspire[d] between themselves” without Daley’s knowledge, “to conduct further negotiations for the purchase and sale of the lease * * **” with the intent to defraud Daley from the brokerage commission; that Daley relied upon Weinstein’s misrepresentations and ceased further efforts regarding the lease; and that defendants entered the contract for the sale of the lease, which did not provide for the brokerage commissions due Daley.

A conspiracy is a combination of two or more persons to accomplish an illegal object or to accomplish a legal object by illegal means. (Heller v. Goss (1980), 80 Ill. App. 3d 716, 400 N.E.2d 70.) The basis of conspiracy is not the “combination,” but the wrongful act alleged to have been done in pursuance of the conspiracy. (Fox v. Cohen (1980), 84 Ill. App. 3d 744, 406 N.E.2d 178.) In an action for conspiracy to defraud the elements of concealment, misrepresentation or wrongful inducement must be alleged. Commercial Products Corp. v. Briegel (1968), 101 Ill. App. 2d 156, 242 N.E.2d 317.

We believe that count IV does not state a cause of action for civil conspiracy since there are no allegations of a wrongful act performed by defendants in furtherance of the “conspiracy to defraud.” The first act set forth is Weinstein’s false representations that the premises were taken off the market due to a fire. But, this act is not “wrongful” since it is not alleged that the combination to defraud Daley was created prior to this conversation. By definition, it is not possible for an act to be performed to promote a conspiracy if the parties have not yet combined. The second and third acts alleged are that defendants conducted negotiations and consummated the eventual sale of the lease. These acts likewise fail to establish fraudulent conduct, since it is not averred that G’Sell, Smith, or Friedman knew of Weinstein’s alleged misrepresentations to Daley when they carried out the transaction. In sum, count IV does not allege that defendants, as co-conspirators, actively concealed any wrongful conduct from Daley, misrepresented facts to him or induced him to behave to his detriment. Hence, there is no conspiracy to defraud.

Finally, we hold that count VI of the second complaint, which merely adds Park West as a defendant to the conspiracy charge, was also properly dismissed. Obviously, since count IV fails to state a cause of action against the individual defendants, there can be no conspiracy charge against the partnership as an entity. The partnership can only act through its individual agents who have not, according to count IV, committed any wrongful acts in furtherance of a conspiracy. Thus, counts II, IV and VI were properly dismissed by the trial court.

Accordingly, the judgment of the circuit court is hereby affirmed.

Affirmed.

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


author: PRESIDING JUSTICE SULLIVAN

text:
    ISHWARLAL M. PATEL et al., Plaintiffs-Appellees, v. RICHARD BURKE et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-3145
    Opinion filed December 11, 1981.

      Thomas M. Hogan and Shelmerdeane A. Miller, both of Chicago, for appellants.
    Ronald A. Nyberg, of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal the entry of summary judgment for plaintiffs in an action seeking the refund of the earnest money deposited by plaintiffs pursuant to a real estate sales contract. The sole question presented is the propriety of the summary judgment.

It appears that on October 1,1977, plaintiffs entered into a real estate contract to purchase defendants’ home and, as provided in the contract, plaintiffs deposited $5,500 earnest money in escrow. The contract gave plaintiffs 30 days to obtain “a commitment for a mortgage loan” according to specified terms. It was also provided that all monies paid by plaintiffs were to be refunded if, after every reasonable effort was made to procure such commitment, they were unable to do so and served notice thereof on defendants within the 30-day period.

Plaintiffs’ complaint, in pertinent part, alleged that they were unable to obtain a loan in the amount and upon the terms provided and that on or about October 22,1977, within the 30-day period, they served notice on defendants demanding return of the earnest money. In their answer, defendants denied those allegations.

Thereafter, plaintiffs moved for summary judgment, stating in relevant part that they made an application on October 8, 1977, for a mortgage loan to Northwest Federal Savings & Loan Association (Northwest) in which it was stated that Mr. Patel was employed by Zenith Corporation; that the application was approved on October 20,1977, and, on or about that same date, Northwest was notified by Mr. Patel that his employment was terminated on October 14, 1977, because of a permanent reduction in the work force at Zenith; that by letter dated October 31, 1977, Northwest informed defendants’ attorney that if Patel’s loss of employment was verified the mortgage commitment would be cancelled; that prior thereto, on October 21,1977, plaintiffs’ attorney had mailed two letters — one to defendant’s attorney informing him that Patel had been laid off and the mortgage application was blocked by Northwest, and the other to defendants notifying them that the mortgage commitment could not be obtained because Patel’s employment had been terminated.

Included with the motion for summary judgment was the affidavit of Mark Petricig, the Northwest loan officer, stating in substance that plaintiffs’ application for a mortgage loan was approved on October 20,1977, based upon information in their application; that on or about October 20, 1977, Northwest was informed by Mr. Patel that his employment had been terminated; that on October 31,1977, he (Petricig) mailed a letter to defendants’ attorney informing him that Patel’s application had been approved but that if his loss of employment was verified Northwest “would undoubtedly cancel the loan commitment to the Patels”; and that, because Northwest subsequently verified that loss of employment, the application for a mortgage loan commitment was in fact rejected. A copy of Petricig’s letter was attached to the motion for summary judgment.

Although defendants were given leave to do so, they filed no response to plaintiffs’ motion and, in granting summary judgment, the court stated, “The only issue is whether an application for a loan once approved and thereafter rejected by the lender as a result of facts beyond the control of the applicant, constitutes a commitment” as that term was used in the mortgage contingency clause. The court held that it was not such a commitment and granted summary judgment for plaintiffs.

Opinion

Summary judgment is appropriate where pleadings, depositions, and admissions on file, together with affidavits, construed most strictly against the movant and most liberally in favor of the other party, show that there is no genuine issue as to any material fact, and that judgment should be granted as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 329 N.E.2d 543.) The right of a party to summary judgment must be clear and free from doubt. Armagast v. Medici Gallery & Coffee House, Inc. (1977), 47 Ill. App. 3d 892, 365 N.E.2d 446.

In the instant case, the contract provided that plaintiffs’ earnest money would be refunded if they made every reasonable effort to obtain within 30 days “a commitment for a mortgage loan” according to specified terms and notice was given defendants within that 30-day period of their inability to obtain such commitment. In its order entering summary judgment for plaintiffs, the trial court found on the only issue in dispute that the application for a loan once approved and then rejected by Northwest because of facts beyond plaintiffs’ control (Mr. Patel’s loss of employment) was not a commitment.

We initially note that the parties make no attempt to define the term “commitment” as used in the mortgage contingency clause, and they do not contend that it has an accepted meaning in the real estate field. Nonetheless, it is the position of defendants that the trial court erred in its finding that the loan approval was conditioned upon Mr. Patel’s continued employment and thus was a commitment. They suggest that Northwest considered it to be a commitment, as indicated by the comment of its loan officer (Petricig) in both his affidavit and October 31, 1977, letter that if Mr. Patel’s loss of employment was verified “our commitment” would undoubtedly be canceled. To the contrary, plaintiffs urge that the trial court properly found that its loan approval was conditioned upon Mr. Patel’s continued employment. This is evident, they argue, because Northwest eventually rejected the application when it verified his loss of employment, and because Northwest was never obligated to commit a loan since Mr. Patel’s employment had been terminated six days prior to its approval of the application.

Thus, the crucial question presented in the positions of the parties is whether the record establishes, as a matter of law, that Northwest’s loan approval was conditioned upon Mr. Patel’s continued employment, and each of the parties refers only to the affidavit and letter of Northwest’s loan officer which, in substance, stated that the application was approved but that “our commitment” would be canceled if Mr. Patel’s loss of employment was verified and that eventually Northwest rejected the application for that reason.

Where different inferences may be fairly drawn from facts not in dispute, a triable issue exists and summary judgment should not be entered. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 324 N.E.2d 444.) We think it clear that contrary inferences may be drawn here from the content of the loan officer’s affidavit and letter; namely, that the approval of the application could have been conditioned upon Mr. Patel’s continued employment as indicated by the fact that it was eventually rejected for that reason, in which event the approval would have been at most a conditional commitment as found by the trial court, or that the approval could be inferred to be an unconditional commitment in the light of the loan officer’s references to the loan approval as being “our commitment” in his affidavit and letter.

In the light thereof, we conclude that a question of fact exists as to whether the loan approval, when given, was conditioned upon Mr. Patel’s continued employment and that summary judgment was improperly entered on the basis that as a matter of law the approval was conditional. Accordingly, we reverse and remand this cause for further proceedings.

Reversed and remanded.

LORENZ and WILSON, JJ., concur.

       Defendants do not contend that there was a dispute as to any other issues.


text:
    EARL HAVENS, Plaintiff-Appellant, v. JOSEPH E. MILLER et al., Defendants-Appellees.—EARL HAVENS, Plaintiff-Appellant, v. A. RUDOLF STEINER et al., Defendants-Appellees.—EARL HAVENS, Plaintiff-Appellant, v. JOHN F. FLANAGAN et al., Defendants-Appellees.—EARL HAVENS, Plaintiff-Appellant, v. PAUL S. BRAUN et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 81-2464 through 81-2467 cons.
    Opinion filed December 11, 1981.

      Andrew M. Raucci, of Chicago, for appellant.
    John H. Doeringer, of Chicago, for appellees Joseph E. Miller and A. Rudolph Steiner.
    Terrence M. Barnicle, of Klein, Thorpe and Jenkins, Ltd., of Chicago, for appellee Electoral Board for Homewood-Flossmoor High School District 233.
    Anthony G. Scariano, of Anthony Scariano & Associates, P. C., of Chicago Heights, for appellee Paul S. Braun.
   JUSTICE LORENZ

delivered the opinion of the court:

These election cases (Nos. 81-2464 through 67) concern the effects of failing to comply with the requirements of section 2 of article 13 of the 1970 Illinois Constitution and of section 10 — 4 of the Election Code. (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4.) Because of alleged noncompliance with these provisions, Appellant Earl Havens filed objections to the nomination petitions which Joseph E. Miller, A. Rudolf Steiner, John F. Flanagan, and Paul S. Braun filed to qualify for positions on the ballot of the November 3, 1981, election as candidates for the board of Home-wood-Flossmoor School District 233. The Educational Officers Electoral Board overruled the objections, and the circuit court denied appellant’s petitions for judicial review.

On October 23,1981, after an expedited appeal of these rulings, we reversed the judgments of the circuit court and the decisions of the electoral board, and we ordered these candidates removed from the ballot.

This consolidated opinion explains our rulings on the following issues:

(1) Whether we have jurisdiction to hear these appeals;

(2) Whether the electoral board had “jurisdiction” to hear appellant’s objections;

(3) Whether section 2 of article 13 of the 1970 Illinois Constitution mandates that candidates are ineligible for office if they fail to timely file a statement of economic interests;

(4) Whether section 10 — 4 of the Election Code mandates that a candidate’s nomination petition is invalid if the circulator’s affidavit on each sheet fails to comply with the requirements imposed by that statute; and

(5) Whether it would be unconstitutional to remove these candidates from the ballot.

Before stating the material facts, it is necessary to briefly explain the applicable candidacy requirements. To be eligible for the office of school board member, the candidates were required to file verified statements of economic interests. (Ill. Const. 1970, art. 13, §2; Ill. Rev. Stat. 1979, ch. 127, par. 604A — 101(g).) These statements had to be filed with the county clerk (Ill. Rev. Stat. 1979, ch. 127, par. 604A — 106) no later than the end of the period for filing nomination papers. (Ill. Rev. Stat. 1979, ch. 127, par. 604A — 105(a).) The Constitution expressly provides that “Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office.” Ill. Const. 1970, art. 13, §2.

In addition, section 10 — 4 of the Election Code requires that each sheet of a nomination petition include a sworn statement from the person who circulated the sheet. This affidavit must include (1) the circulator’s residence address and (2) a certification that the circulator believes that the people who signed the petition were registered voters of the applicable district who gave their correct residence addresses. Section 10 — 4 expressly provides that “No signature shall be valid or be counted in considering the validity or sufficiency of [a nomination] petition unless the requirements of this Section are complied with.” Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4.

Three of the candidates (Miller, Steiner and Flanagan) filed their statements of economic interests with the secretary of the school board rather than with the county clerk. It was not until two days after the filing deadline expired that the secretary forwarded these statements to the county clerk. (Braun’s statement of economic interests was timely filed with the county clerk.)

Despite the requirements of section 10 — 4, the circulator’s affidavit on each sheet of the nomination petitions filed by Braun, Miller and Steiner failed to include (1) the circulator’s residence address and (2) a certification that the circulator believed that the people who signed the petitions were registered voters of the school district who gave their correct residence addresses.

Apparently each of the candidates obtained their petition sheets from the secretary of the school board. However, on the sheets submitted by Flanagan, all the information required by section 10 — 4 (except the residence address of the circulator) has been typed in at the end of the affidavits. And, because both Flanagan and Braun circulated their own petitions, the residence addresses of each of these candidates is included at the top of each sheet of their petitions.

Appellant’s objections sought to have the candidates removed from the ballot on the grounds that they were either ineligible for office or that their nomination petitions were invalid. Nevertheless, the electoral board found that there was “substantiál compliance” with the disputed provisions, and it overruled the objections.

Opinion

I

The electoral board contends that we have no jurisdiction to hear these appeals because the statute which provides for circuit court review of electoral board decisions (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 10.1) does not mention appellate review. Accord, Lawrence v. Board of Election Commissioners (1977), 45 Ill. App. 3d 776, 360 N.E.2d 168; Petterson v. Scoville (1980), 83 Ill. App. 3d 746, 404 N.E.2d 795; contra, Gilbert v. Municipal Officers’ Electoral Board (1981), 97 Ill. App. 3d 847, 423 N.E.2d 952.

The 1870 Illinois Constitution provided that Illinois appellate courts had jurisdiction to hear “such appeals and writs of error as the general assembly may provide 6 # (art. 6, §11.) See, e.g., article 8 of the Civil Practice Act as it existed before the judicial article of the 1870 Constitution was amended. Ill. Rev. Stat. 1963, ch. 110, pars. 74-82.

But, under both the 1964 amendment to the judicial article of the 1870 Constitution (art. 6, §7, as amended) and the 1970 Constitution (art. 6, §6), there is a constitutional right of appeal to the appellate court from all “final judgments” of the circuit court, except where direct appeal to the supreme court is provided or the judgment is an acquittal in a criminal case.

The electoral board does not argue that the rulings of the circuit court (denying appellant’s petitions for judicial review) were not “final judgments” in those proceedings. Because our jurisdiction to hear appeals from final judgments of the circuit court is granted by the Constitution, it is of no consequence that the applicable statute does not provide for appellate review.

II

Candidate Braun contends that the electoral board lacked “jurisdiction” to hear appellant’s objections because of alleged failure to comply with the statutory requirements for giving notice of the objections and for scheduling a hearing.

Section 10 — 10 of the Election Code states that “The day of the meeting [to consider the objections] shall not be less than 3 nor more than 5 days after the receipt of the * * * objector’s petition by the chairman of the electoral board.” Ill. Rev. Stat. 1979, ch. 46, par. 10 — 10.

The hearing on appellant’s objections was held on September 8,1981, but the chairman of the electoral board received the objections on September 1. Thus Braun contends that the hearing was not timely, and that the board lost its authority to act. We disagree.

According to section 1.11 of the Statute on Construction of Statutes (Ill. Rev. Stat. 1979, ch. 1, par. 1012),

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”

Even if our computation includes the day the objections were received by the Chairman — Monday, September 1 — the last day for holding a hearing was Saturday, September 5. Furthermore, Monday, September 7, 1981, was Labor Day, a legal holiday. (Ill. Rev. Stat. 1979, ch. 98, par. 18.) Excluding the preceding Saturday, Sunday, and Monday, the hearing on September 8 was timely.

Braun also argues that the secretary of the school board, the official who first received the objections, failed to mail the objections to the appropriate people within 24 hours as required by section 10 — 8 of the Election Code. (Ill. Rev. Stat. 1979, ch. 46, par. 10 — 8.) The secretary testified that she received the objections on Saturday, August 29, at about 3:45 p.m., but she did not mail the documents until Monday, August 31, at 3:35 p.m. — almost 48 hours later.

Even though the 24-hour period expired on a Sunday, Braun contends that the statute on construction of statutes does not apply to exclude that day from our computation of time. According to this argument, section 1.11 does not apply because the legislature used the phrase “24 hours” rather than the word “day.” But section 1.11 concerns computations of “The time within which any act provided by law is to be done,” and applicability of that provision does not depend upon the particular unit of time which was used in the law that requires the act in question.

Moreover, the fact that the legislature used the phrase “24 hours” instead of the word “day” does not show that the intent of the legislature was to preclude operation of section 1.11. At common law, “day” is defined as an indivisible unit of time which runs from one midnight to the next midnight. (Cummins v. Holmes (1882), 11 Ill. App. 158, 161-62; Rock Finance Co. v. Central National Bank (1950), 339 Ill. App. 319, 325, 89 N.E.2d 828.) So, under the common law definition of “day,” the period of time which runs from 3:45 p.m. to 3:45 p.m. of the next day is not just a single “day,” even though it is 24 hours. By using the phrase “within 24 hours,” the legislature indicated that it wanted to avoid the common law definition of “day.” But this does not indicate that the statute on statutes is inapplicable.

Because the time period for sending out the required notices expired on a Sunday, we conclude that this day must be completely excluded in computing the timeliness of the mailing. Therefore we conclude that the secretary of the school board complied with the requirements of section 10 — 8.

The remaining argument on this issue is that the electoral board lacked “jurisdiction” because the chairman failed to have notice of the hearing served upon the candidates by the sheriff.

Section 10 — 10 provides that, within 24 horns of when an objector’s petition is received by the chairman of the electoral board, the chairman “shall” send notice of the hearing to the candidate by registered or certified mail, and “shall” also have the sheriff serve a copy of the notice on the candidate.

In the present case, the chairman sent the required notices by registered or certified mail, but did not comply with the redundant requirement of also having the notices served by the sheriff. Emphasizing the use of the word “shall” in section 10 — 10, Braun argues that this provision is mandatory and that the chairman’s noncompliance is a fatal flaw which nullified the authority of the electoral board to rule on the objections.

“A mandatory provision in a statute is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding. * ® * No universal rule can be given to distinguish between directory and mandatory provisions. The controlling question in this as in all other rules of construction is, what was the intention of the legislature?” People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 436, 108 N.E. 699.

However, “Substantial and not literal compliance with technical requirements of election laws seems to be a general rule. In the absence of fraud or express statutory language, irregularities in the conduct of elections will not invalidate such elections.” 3 Sutherland, Statutory Construction §70.01, at 296 n.13 (4th ed. 1974).

The question presented by Braun’s argument is whether the General Assembly intended noncompliance with the redundant requirement of sheriff’s service to be a fatal flaw. Obviously the provision for using two methods of serving notice was meant to increase the likelihood that candidates would actually receive notice of the hearing. And Braun, who participated in the hearing through his attorney, does not contend that he did not receive the notice that was sent by mail. So, in effect, he is arguing that the Electoral Board lacked authority to hear the objections to his nomination petition because he did not receive, by the hand of the sheriff, an identical copy of the notice of hearing which he had already received from his mailman.

If we were to accept Braun’s argument, it would mean that the chairmen of the various electoral boards would have absolute veto power over objections. By ignoring one of the alternative methods of serving notice, a chairman could prevent the board from having authority to sustain valid objections. But section 10 — 10 does not explicitly specify that this is the intended result of failure to send notice by both methods, and we simply do not believe that the legislature intended for such a defect to have the result of nullifying the board’s authority. Since Braun presumably received notice of the hearing through one of the alternative methods of service, we conclude that the failure to send him an identical copy of the notice by the other method is not a fatal flaw.

Ill

As we already noted, the key to determining whether a provision is mandatory or directory is to ascertain the intent of the legislature or the body politic which enacted the law. (People ex rel. Agnew v. Graham (1915), 267 Ill. 426, 436, 108 N.E. 699.) Of course, the first place to look for the intent of a constitutional or statutory provision is in the language of the law itself.

“Whether a mandatory or directory construction should be given to a statutory provision may often be determined by an expression in the statute of the result that shall follow noncompliance with the provision.
«too
Of course, if a statute prescribes in terms that acts or proceedings shall be void if they are not done in the manner set out in the statute, the statutory prescription is obviously mandatory.” 2A Sutherland, Statutory Construction §57.08, at 423 (4th ed. 1973).

For example, in a case which involved the validity of an election, the supreme court stated:

“Where a statute imposes duties upon officials connected with the holding of an election and by express language provides that the omission to perform the same shall render the election void, then all courts are bound to enforce such statute and pronounce the election void, regardless of all considerations touching its policy or impolicy * * *.” People ex rel. Cant v. Crossley (1913), 261 Ill. 78, 102, 103 N.E. 537.

In the present case, we are dealing with laws which explicitly specify the effect of noncompliance. Section 2 of article 13 of the 1970 Constitution expressly mandates that “Failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office.” And section 10 — 4 of the Election Code expressly mandates that “No signature shall be valid or be counted in considering the validity or sufficiency of [a nomination] petition unless the requirements of this Section are complied with.” Ill. Rev. Stat. 1979, ch. 46, par. 10 — 4.

These provisions leave no room for discretion in determining the intended results of noncompliance; they are obviously mandatory laws.

It is argued that we would be “hyper-technical” if we enforced these provisions by ordering these candidates removed from the ballot, but we lack authority to disregard clear and unambiguous constitutional and statutory provisions.

Since these laws are mandatory, appellant did not have the burden of alleging or proving that the petitions were forgeries or that the noncompliance resulted in election fraud. Imposing such a burden on appellant would convert these provisions into merely directory laws. Furthermore, appellant’s motive in filing the objections is irrelevant to the determination of whether the candidates failed to comply with these mandatory election laws. It is likewise irrelevant that sustaining the objections would leave only three candidates running for three seats, or even whether it would leave no candidates on the ballot at all.

Both Braun and the electoral board argue that the findings of the electoral board should be sustained as “not against the manifest weight of the evidence.” As an appellate court, we take a deferential approach to the findings made below on disputed factual issues; but the scope of our review on questions of law is independent, not deferential. (Compare Supreme Court Rule 366(b) (l)(i) (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(l)(i)) with Rule 366(b)(l)(ii) (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b) (1) (ii).) Moreover, the facts which we find controlling are not disputed, and, in this case, the legal result of these undisputed facts is solely a question of law.

We recognize that in Merz v. Volberding (1981), 94 Ill. App. 3d 1111, 419 N.E.2d 628, the appellate court excused compliance with a mandatory provision of the Election Code, but we find that Merz is inapplicable to the present case. The statute involved in that case was ambiguous and unclear. And, as the court pointed out, “[I]t would be a great injustice to penalize any candidate for failure to understand a provision in the Election Code which we ourselves have had considerable difficulty in interpreting.” (94 Ill. App. 3d 1111, 1117.) The court emphasized, however, that in the future it would insist on strict compliance. (94 Ill. App. 3d 1111, 1118.) So, in essence, the statute in Merz was too vague to be mandatorily enforced until its meaning was ascertained through the process of statutory construction and authoritatively expressed by the court. Thus the holding in Merz was clearly based upon the same considerations of “reasonable notice” as the due process void-for-vagueness doctrine.

In contrast with Merz, the laws involved in the present case are clear and unambiguous; they do not need “construction” before being enforced as intended.

The electoral board argues that filing statements of economic interests with the secretary of the school board, rather than with the county clerk, was a “technical violation” which “caused no harm to the public.” The electoral board also states that these statements were available for public inspection at the office of the school board. However, the Governmental Ethics Act informed the public that the statements would be available for inspection at the office of the county clerk. (Ill. Rev. Stat. 1979, ch. 127, par. 604A — 106.) Even if the statements were available for public inspection at the office of the school board, this would be of no value to members of the public who failed to discover that the candidates filed their statements somewhere other than where the law required these documents to be filed.

Daniels v. Cavner (1949), 404 Ill. 372, 88 N.E.2d 823, shows that submission of these documents to the secretary of the school board cannot be considered a valid filing. The candidates in Daniels attempted to file their nomination papers by presenting them to the city clerk — at his residence — around midnight of the last day for filing those documents with that official. The supreme court held that this was not a valid filing, and the candidates were not permitted to appear on the ballot.

“The statute states that nominating papers shall be filed with the clerk, which direction has been construed to mean with the clerk at his official office and during usual business hours. To allow the clerk to accept nomination papers at any other time would be contrary to our election statute and give arbitrary power to the clerk not intended. The purpose of such a rule is obvious, for it is not only the clerk who is interested in the proper and timely filing of nomination petitions, but other candidates for office and citizens and voters in general have a vital interest in the question of a waiver or extension of time for the filing of nomination papers. Papers of such nature should be contained in the files and records of the clerk, subject at all times to the inspection of the whole public, both for their information and for their examination to see if objections may lie to their sufficiency. To allow filing at whatever place the clerk might be found would defeat such objects, and as previously pointed out 9 9 9 [Citation], the practice of indiscriminate filing would only lead to confusion and possible fraud.” 404 Ill. 372, 379-80.

Based on Daniels, we conclude that Steiner, Flanagan and Miller failed to comply with the mandatory requirements of section 2 of article 13 of the 1970 Illinois Constitution. They are, therefore, ineligible for the office they sought, and the objections to their nomination papers should have been sustained.

It is also clear that the nomination petitions filed by Miller and Steiner fail to comply with the requirements of section 10 — 4. But according to Braun, his petitions sufficiently comply with the requirements of this law because, (a) his residence is listed at the top of each sheet; (b) the people who signed the petition state that they are voters who reside within the school district; and (c) each signer gave an address after his or her signature.

The problem with this argument is that the people who signed the petitions were not under oath. Section 10 — 4 requires the circulator — not the signers — to certify under oath that the required statements are true. The distinction is significant because the criminal perjury provision of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 29 — 10) applies only to false statements “in any affidavit, certificate or sworn oral declaration required by any provision of [the] Code 9 9 9.” Since the nomination petition itself is not an affidavit, certificate, or sworn oral declaration, it is obvious the requirement of a circulator’s affidavit is one of the primary safeguards against fraudulent nomination petitions.

Braun refers us to Lewis v. Dunne (1976), 63 Ill. 2d 48, 344 N.E.2d 443, and Madison v. Sims (1972), 6 Ill. App. 3d 795, 286 N.E.2d 592, in support of his argument that we should consider the statements of the signers as sufficient to fulfill the requirements of the circulator’s affidavit. We find, however, that these cases are inapplicable because they concern a directory provision; the applicable statute merely required that certain documents “shall be in substantially the following form.” (Emphasis added.) Ill. Rev. Stat. 1971 and 1975, ch. 46, par. 7—10.

Because Braun, as circulator, did not certify under oath that he believed that the signers gave their correct residence addresses, there was a complete failure to comply with this requirement of section 10 — 4.

The electoral board contends that, in this case, the petition should be considered valid because the candidates used forms supplied by the secretary of the school board. However, the secretary’s error in the execution of this ministerial act neither nullified the requirements of the applicable election statutes nor estopped appellant from objecting to invalid petitions. See Schumann v. Kumarich (1981), 102 Ill. App. 3d 454.

We conclude that Miller, Steiner and Braun failed to comply with one or more of the mandatory requirements of section 10 — 4 of the Election Code. Therefore, each sheet of their nomination petitions is invalid, and appellant’s objections should have been sustained.

IV

The electoral board argues that the applicable standard of constitutional review in this case is “strict scrutiny.” Consequently, according to the board, appellant had the burden of showing (1) that there was a compelling reason for removing the candidates from the ballot, and (2) that this sanction was the least restrictive means available for furthering this compelling objective. In the alternative, the board argues that this sanction is a violation of the guarantee of due process of law (U.S. Const., amend. 14), even if subjected to the less rigorous “rational basis” test.

It is argued that strict scrutiny is required because removing these candidates from the ballot would allegedly violate fundamental constitutional rights of voters and candidates. However, these filing and affidavit requirements can be easily complied with by candidates of every political persuasion, race, sex, religion, or degree of wealth. In effect, the board is contending that voters have a fundamental right to vote for these particular candidates, and that these candidates have a fundamental right of access to the ballot despite their failure to comply with reasonable candidacy requirements. But in Bullock v. Carter (1972), 405 U.S. 134, 143, 31 L. Ed. 2d 92, 99, 92 S. Ct. 849, 856, the United States Supreme Court stated that “not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review.” Moreover, the existence of barriers to candidacy does not automatically trigger strict scrutiny. 405 U.S. 134, 143, 31 L. Ed. 2d 92, 100, 92 S. Ct. 849, 856.

Rather than opting for an approach that candidacy restrictions are always tested by either the “strict scrutiny” or the “rational basis” tests, the court showed that the appropriate standard of constitutional review in such cases is determined by a realistic examination of the nature and impact of the restrictions upon voters. (405 U.S. 134, 143-44, 31 L. Ed. 2d 92, 100, 92 S. Ct. 849, 856.) For example, “strict scrutiny” was required in Bullock because the excessive filing fees required by the Texas election laws had a “real and appreciable impact” upon candidates and voters who were not wealthy. (405 U.S. 134, 144, 31 L. Ed. 2d 92, 100, 92 S. Ct. 849, 856.) See also Trafelet v. Thompson (7th Cir. 1979), 594 F.2d 623, 631-32, cert. denied (1979), 444 U.S. 906, 62 L. Ed. 2d 142, 100 S. Ct. 219 (rejecting the argument that the State must prove a compelling interest to justify depriving voters of the opportunity to vote for judges who were forced to retire); Richards v. LaVelle (7th Cir. 1980), 620 F.2d 144; and Anderson v. Schneider (1977), 67 Ill. 2d 165, 365 N.E.2d 900.

Realistically examined, we cannot conclude that the candidacy requirements involved in this case would have an appreciable impact upon the fundamental rights of individuals to associate for political purposes and to support candidates who represent their political beliefs. (See, generally Developments in the Law-Elections, 88 Harv. L. Rev. 1111, 1217-19 (1975).) Of course, there will always be an occasional candidate who will fail to comply with even the simplest requirements. (See, e.g., Richards v. LaVelle (7th Cir. 1980), 620 F.2d 144, 147 (to comply with a particular candidacy requirement, “All the candidate had to do was count”).) But the fact that there will inevitably be such cases does not, by itself, call for strict scrutiny.

We conclude that the “rational basis” test is applicable to the present case. Using this less rigorous standard of constitutional review, the crucial question is whether it is conceivable that removing these candidates from the ballot has a rational relationship to a legitimate governmental objective.

Relying on Richards v. LaVelle, the electoral board contends that, even under the less rigorous standard of review, removing these candidates from the ballot would constitute a violation of the right to due process of law. In Richards, a board of election commissioners sought to keep a candidate off the ballot because his nomination petition had more than the maximum number of signatures. But the only governmental interest which was conceivably furthered by this limitation was the bureaucratic interest in not having to cope with petitions which had too many signatures. And the court held that the sanction of keeping the candidate off the ballot was unconstitutional because it was not a rational way of furthering this governmental interest.

In the present case, however, the disputed laws are clearly designed to protect the integrity of the electoral process itself rather than some bureaucratic interest in not having to cope with bulky petitions. It is conceivable that the sanctions imposed for noncompliance with section 2 of article 13 of the 1970 Constitution, and section 10 — 4 of the Election Code, will further the State’s valid interest in protecting the integrity of the electoral process by helping to insure that candidates will strictly comply with the requirements of these election laws. Thus we cannot conclude that the sanction of removing these candidates from the ballot is not rationally related to this legitimate State interest. We therefore hold that removing these candidates from the ballot will not deprive them of their right to due process of law.

Based on the preceding reasons, we reversed both the judgments of the circuit court and the decisions of the electoral board, and we ordered these candidates removed from the ballot for the November 3, 1981, election.

Circuit court and electoral board reversed with directions entered by order of October 23, 1981.

MEJDA and WILSON, JJ., concur.

         See, e.g., our discussion of section 2 of article 13 of the 1970 Illinois Constitution, and section 10 — 4 of the Election Code, in part III of our opinion.


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. KULPA, Defendant-Appellant.
    First District (1st Division)
    No. 80-1159
    Opinion filed December 14, 1981.

      Albert Brooks Friedman and Frederick M. Ellis, Jr., both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich, and Thomas J. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant James A. Kulpa was charged with attempt murder (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4), armed violence (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A — 2,12—4(a)), and three counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4). After a jury trial defendant was found not guilty of attempt murder, not guilty of armed violence, and guilty of aggravated battery. The trial court found that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, and sentenced defendant to a term of eight years imprisonment under the extended-term provision of section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b) (2)). On appeal defendant urges that: (1) the court abused its discretion in sentencing him to eight years imprisonment; (2) the court erred in failing to give requested jury instructions and jury verdict forms regarding aggravated battery; and (3) section 5 — 5—3.2(b) (2) of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2(b)(2)) (the extended-term provision, hereinafter section 5 — 5—3.2(b)(2)), is unconstitutional.

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

At trial, Arthur Pauls, the brother-in-law of defendant, testified that on October 23,1978, he resided with his sister Doreen Kulpa at 3825 West 105th Street. At that time Doreen was married to defendant, but was separated from him and in the process of getting a divorce. There was a court order in effect stating that defendant was not to come to the house in which Pauls and Doreen resided. Pauls arrived home from work a little after 4 p.m. with Ronald Galvin, a working partner of his. While they were sitting in the kitchen defendant drove up into the driveway. Pauls went out to defendant’s car and told him not to even get out of the car, and that he had broken the court order. Defendant stated that he had every right to be at the house. Pauls’ dog jumped into defendant’s car, and defendant asked him to get the dog out of the car. Pauls called the dog, and as the dog jumped out of the car, defendant kicked the dog in the head. Pauls told defendant he was going to call the police. As he turned to go into the house, defendant grabbed him from behind and threw him up against the car. Pauls threw a punch at defendant and hit him in the mouth. Pauls then fell against the car and defendant charged him. Pauls felt a pain in his chest and saw that he was bleeding. He saw a knife in defendant’s hand. He fell down and attempted to crawl to the house. At this time defendant was standing over him punching arid stabbing him. He continued to crawl to the house, and defendant continued to hit and stab him in the face, the head, and the chest. Pauls rolled over on his back and tried to kick defendant. He could not see because his eyes were filled with blood. He put his hands over his eyes to protect himself. Defendant continued to follow him. He turned over and tried to crawl again, and defendant continued to stab him. Finally Pauls stopped. The next thing he remembered was someone trying to stop the bleeding. The next day he awoke in the hospital in the intensive care unit. He remained in the intensive care unit for seven days and in the hospital for two weeks. He suffered multiple stab wounds to the face, neck, arms, back of the head, wrists, and shoulders. He had a collapsed lung and a couple of bruises. He had 26 wounds to his body. At the time of trial he was still receiving treatment. His lung was being drained periodically as it filled up with fluid. The testimony of Ronald Galvin, Sherry DePass, and Martin DePass corroborated that of Arthur Pauls. Additionally, Dr. Jack Roberts testified that all of the lacerations received by Pauls would leave permanent scars.

Dr. Eugene Voltolina, a psychiatrist, testified for defendant. He had been treating defendant since March 1978 for an organic brain disorder which he diagnosed as a paranoid state. This paranoid state was attributed to a chemical imbalance involving a substance called dopomine. To treat defendant he prescribed dilantin and navane. In August 1978, defendant stopped taking the drugs. This caused him to return to the aforementioned paranoid state. Dr. Voltolina stated that defendant was psychotic when he saw him on October 28,1978. He also stated that at the time of the attack on Pauls, defendant was suffering from a mental disease and was unable to conform his conduct to the requirements of law. At the time of trial defendant was again taking the prescribed medication.

Defendant testified that he is a college graduate. In October 1978, he was employed as an apprentice electrician and had completed 3M years of his four-year apprenticeship. He first saw Dr. Voltolina in March 1978, when he was hospitalized at Christ Community Hospital. It was then that he learned about the problem with his brain. He took prescribed drugs from the time he was released from the hospital until August 1978. On October 23, 1978, he went to the house he and his former wife Doreen owned at Doreen’s request. He and Doreen were separated at the time. He had mailed her a support check but had forgotten to sign it. Doreen told him she wanted him to come over and make the check good. When he arrived at the house he parked in the driveway. Pauls came out of the house yelling and cursing at him. He tried to tell Pauls why he was there, but Pauls would not listen. As defendant walked back to his car, Pauls ran toward the car and told defendant he would blow him away if he did not leave. Pauls’ dog jumped into his car, and he told Pauls to get the dog out. Pauls yelled at the dog, and when the dog did not move, defendant kicked the dog. The dog jumped out of the car. Pauls came toward defendant and punched him in the face. Defendant travelled four or five feet from the blow. Pauls came toward him. As he turned he noticed another man (Galvin) running down the steps toward him. He and Pauls began exchanging blows and Galvin began kicking him. He reached into his rear pocket and pulled out the knife. He opened the knife and turned toward Pauls. He and Pauls started wrestling, and he was swinging both arms at Pauls. His left arm contained the knife. Pauls stopped fighting, so he stopped fighting and got up. He turned his back, put the knife away, backed his car out of the driveway, and waited in front of the house for the police to arrive.

The State called two rebuttal witnesses. Dr. Gilbert Bogen, a psychiatrist, testified that he examined defendant on October 28, 1978. He stated that on that date defendant was not suffering from any mental disease or defect. He diagnosed defendant as having an explosive personality. In his opinion, on October 23,1978, defendant could understand the nature of the offense and could conform his conduct to the requirements of the law. Dorothy I. Zak (Doreen) testified that defendant is her former husband. She stated that she did not call defendant and ask him to come over and sign a check on October 23,1978. The jury did not accept defendant’s defenses of self-defense or insanity. The jury returned a verdict of not guilty of attempt murder, not guilty of armed violence, and guilty of aggravated battery. Defendant was sentenced to an eight-year term of imprisonment pursuant to section 5 — 5—3.2(b)(2).

Initially, defendant contends that the trial court abused its discretion in sentencing him to an eight-year term of imprisonment. He admits that he caused serious harm to Pauls, but he claims that the court failed to properly consider and weigh all the factors in aggravation and mitigation by placing too much weight on this one factor. He further contends that his attack on Pauls was provoked when Pauls punched him in the mouth, and thus cannot amount to a wanton or heinous act. People v. Jones (1979), 73 Ill. App. 3d 99, 391 N.E.2d 767; People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175.

The State urges that the trial court properly considered all applicable factors in extending defendant’s sentence, and that the sentence reflects a reasonable attempt to match the sentence to the offender as well as to the offense. (People v. Lewis (1980), 89 Ill. App. 3d 15, 410 N.E.2d 1047.) The State claims that the court had before it for consideration the evidence introduced at trial which established that defendant stabbed and slashed the helpless, unarmed Pauls 26 times as he attempted to crawl away from defendant; the evidence introduced at defendant’s bond revocation hearing which established that after Pauls testified against defendant at trial, defendant attempted to run him and his sister down in the courthouse parking lot; and the evidence introduced at the hearing in aggravation and mitigation. That evidence established that on March 13, 1978, defendant threw a plate of food at his wife hitting her in the back. Later that night he broke his wife’s clock radio, mirror, all her makeup, and all her perfume. As a result of this incident he pled guilty to disorderly conduct. He was sentenced to six months’ probation and ordered to stay away from his wife, her family, and the marital home. However, on March 14, 1978, defendant turned on all the gas at the marital residence while his wife was at work. She was called home from work and arrived to smell a strong odor of gas. She observed that the stove had been pulled away from the wall. Later that evening defendant started a fire at the marital home which caused damage in the amount of $19,000.

We have examined the record, and we find ample evidence in the record to sustain the extended-term sentence. (People v. Lewis.) The record supports the State’s position that the trial court had before it and did consider all of the factors it was required to consider in aggravation and mitigation. (People v. Fugitt (1980), 87 Ill. App. 3d 1044, 409 N.E.2d 537.) Moreover, at the time of sentencing, the trial court gave a thorough and detailed explanation of how it arrived at the sentence imposed. We do not agree with defendant that the Jones and Warfel cases support his position, for in both Jones and Warfel, as in the instant case, the defendant and not the victim, was found to be the aggressor. The trial court found that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. We agree with the State that the trial court did not abuse its discretion in arriving at this determination.

Defendant’s second contention is that the trial court erred when it refused to give jury instructions and jury verdict forms for each of the three counts of aggravated battery with which he was charged. Instead, the court gave State’s instructions 15 and 16 which joined together the three counts of aggravated battery. The court also submitted to the jury one general verdict form for guilty of aggravated battery, one for not guilty of aggravated battery, and one for not guilty of aggravated battery by reason of insanity. Defendant urges that the jury should have been instructed separately on each count, and that there should have been three verdict forms submitted to the jury for each separate count of aggravated battery. Defendant claims that the effect of giving one instruction and one verdict form for three separate counts was to confuse the jury. He suggests that the jury must have felt that it must find him guilty of one count. He also urges that the use of only one verdict form makes it impossible to determine what the jury’s findings were.

The State urges that the trial court did not err in submitting to the jury the two jury instructions proposed by the State regarding aggravated battery, and the three general verdict forms. The State claims that this was not error because the three counts arose out of the same transaction, and the punishment imposed was one that was authorized for any of the three counts. The State contends that regardless of the three counts charged, only one aggravated battery offense was alleged. The State claims further that the instructions were written in plain language and were not confusing to the jury. They state that it was not impossible to determine what the jury’s findings were since the jury found defendant guilty of aggravated battery.

This court has recently passed on this issue in People v. Lloyd (1981), 93 Ill. App. 3d 1018, 418 N.E.2d 131, and held that where a general verdict of guilty is returned on an indictment which contains several counts arising out of the same transaction, the defendant is considered guilty on each count. The court also held that if the punishment imposed is authorized for the offense charged in any one or more of the counts, the verdict must be sustained. We find the Lloyd case is dispositive of this issue, and the trial court did not err when it refused to give the jury instructions and the jury verdict forms requested by defendant.

Defendant next contends that section 5 — 5—3.2(b) (2) providing for the extended sentence is unconstitutional. He claims that the statute is unconstitutionally vague because it permits the court to arbitrarily exercise its discretion to determine what is exceptionally brutal or heinous behavior indicative of wanton cruelty, and then again permits the court to exercise its discretion to determine whether or not to impose an extended term.

The State contends that this question has recently been passed on by this court, and that the statute in question has been determined not to be unconstitutionally vague. (People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149.) In Turner the court examined the statute and concluded that the definitions of the words in the statute are commonly understood by the general public. Thus, the words of the statute provide adequate guidelines to enable the sentencing court to base the imposition of an extended term on articulable circumstances surrounding the offense. (People v. Turner. See also People v. Bayless (1981), 99 Ill. App. 3d 532, 425 N.E.2d 1192.) We agree with the State that the statute in question is not unconstitutionally vague, and that People v. Turner is dispositive of this issue.

Finally, defendant contends that the application of section 5 — 5—3.2(b)(2) amounts to cruel and unusual punishment by imposing a sentence which is out of proportion to the offense committed. Weems v. United States (1910), 217 U.S. 349, 54 L. Ed. 793, 30 S. Ct. 544; O’Neil v. Vermont (1892), 144 U.S. 323, 36 L. Ed. 450, 12 S. Ct. 693.

The State urges that it is the province of the legislature to decide whether evil exists, and what means are appropriate to prevent that evil. (People v. Houston (1976), 43 Ill. App. 3d 677, 357 N.E.2d 184.) In this connection, unless the penalty prescribed is so disproportionate to the offense that it shocks the moral sense of the community, or is cruel or degrading, or is outside the statutory limits, it is not unconstitutional. People v. Ballinger (1973), 53 Ill. 2d 388, 292 N.E.2d 400; People v. Houston.

We observe that the penalty imposed on defendant falls within the statutory limit, and we agree with the State that the penalty prescribed is not otherwise shocking or cruel, and is therefore not unconstitutional for any of the grounds asserted by defendant. People v. Houston.

Defendant also claims that section 5 — 5—3.2(b) (2) unconstitutionally denies him the right to trial by jury. He urges that the statute invades the province of the jury, and requires the trial court, and not the jury, to determine whether the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The State responds to defendant’s claim by asserting that it is the responsibility of the trial court, and not the jury, to impose a sentence on convicted persons, and that the challenged statute does not invade the province of the jury. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 892.

For the reasons set forth herein the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and O’CONNOR, JJ„ concur.