text:
    JOEL FELDMAN et al., Plaintiffs-Appellees and Cross-Appellants, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 81 — 382
    Opinion filed August 5, 1982.

      Shari R. Rhode and Thomas P. Polityka, both of Office of Legal Counsel, Southern Illinois University, of Carbondale, for appellant.
    Gilbert Feldman, of Cornfield and Feldman, of Chicago, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiffs-appellees are four faculty members employed by defendant-appellant, Southern Illinois University at Carbondale. Each of the plaintiffs received an unspecified number of parking citations for violating the University’s Motor Vehicle and Bicycle Regulations. Those regulations specify a period of time for appeal of such citations, which period had elapsed prior to the instant trial.

The record establishes that each plaintiff was notified in writing that the sum each plaintiff owed because of these citations would be deducted from his salary. Subsequently, such amounts were withheld from the salary check of each plaintiff. The amounts withheld ranged from $153 to $235. Plaintiffs thereafter brought the instant suit seeking a declaratory judgment that the deductions were illegal. They also sought a money judgment in the amounts withheld. Defendant counterclaimed for a declaratory judgment that it legally withheld those sums, and it sought a money judgment in the amount withheld. All parties moved for summary judgment, and the court entered an order providing that: (1) a declaratory judgment be entered that, in absence of a specific written authorization signed by each plaintiff, defendant had no authority to withhold the sums in question; (2) defendant be permanently enjoined from further payroll deductions based on the parking violation sanctions without plaintiffs’ specific written authorization or a court order; and (3) money judgment be entered for defendant in the amount sought on its counterclaim. All parties have appealed those portions of that judgment which were adverse to them. An agreed statement of facts has been filed in this court as provided by Supreme Court Rule 323(d) (73 Dl. 2d R. 323(d)).

On the reverse side of the “Notice of Appointment” for each plaintiff is listed certain conditions of employment. They include the following:

“Employment is governed by the laws of Illinois and the Statutes of the Board of Trustees, which laws and Statutes are part of this agreement as if set out in full herein.”

Section 7 — 101B of the Motor Vehicle and Bicycle Regulations of Southern Illinois University provides that anyone who fails to pursue an appeal from the receipt of a citation for a parking violation shall be subject to the monetary use charges provided in the regulations. Section 6 — 105A of the regulations provides:

“Notwithstanding any provisions of these regulations, any person who is an employee of the University or the State of Illinois, who fails to pay a monetary use charge as set forth in these regulations will be subject to having such monetary charge owed to the University deducted from the sums due to such employee from the University or the State.”

The regulations further provide for a three-tiered appeal process for parking violation citations. The first level of review is to a hearing officer, who is responsible for establishing his own hearing procedure subject to approval by university legal counsel. Persons seeking review are to receive a written copy of those procedures upon application for review. A person objecting to the determination of the hearing officer may appeal to the five-member Traffic Appeals Board, which also is to set up its own procedures subject to approval by university legal counsel. The decision of the Traffic Appeals Board is ap-pealable to the president of the university “and” defendant Board of Trustees. In this regard, we find no indication of record as to the procedures established by the hearing officer or the Traffic Appeals Board; however, because plaintiffs have failed to date to voice any objection as to the absence of such hearing procedures of the hearing officer and Traffic Appeals Board, they have waived any such objection.

It is not disputed that summary judgment should be rendered only if the pleadings, depositions, affidavits and admissions on file show that there was no genuine issue as to any material fact and that the movant was entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) This court’s view of summary judgment as expressed in Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105, is as follows:

“ ‘The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. [Citation.] If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. [Citation.] The right of the moving party to summary judgment must be free from doubt. [Citation.]’ ” 112 Ill. App. 2d 234, 238, 251 N.E.2d 105,106.

We consider first defendant’s appeal from the summary judgment entered by the trial court in favor of plaintiffs. On appeal, defendant argues that the trial court erred in entering summary judgment for plaintiffs based upon the court’s finding that the employment contract, incorporating the parking regulations, was not sufficient authorization for withholding the sums in question. Defendant maintains that plaintiffs contractually authorized such withholding and that the trial court erred in determining that a separate signed withholding authorization was required. Plaintiffs, conceding that the contracts purport to authorize the withholding, argue that the trial court’s conclusion that the withholding was not authorized was proper because defendant failed to comply with the State Salary and Annuity Withholding Act (Ill. Rev. Stat. 1979, ch. 127, par. 351 et seq.) (hereinafter referred to as the Act).

Section 3 of the Act states that whenever an “Office” (elsewhere defined to include defendant) is authorized in writing by a State employee to withhold a specified portion of such employee’s salary for a designated period of time for any one or more of the purposes specified in section 4 of the Act, such “Office” shall withhold from such employee’s salary for each pay period the amount specified in the authorization during the period of time designated. (Ill. Rev. Stat. 1979, ch. 127, par. 353.) Section 4 of the Act states that an employee may authorize the withholding of a portion of his salary, inter alia, “for payment to or for the benefit of an institution of higher education by an employee of that institution.” (Ill. Rev. Stat. 1979, ch. 127, par. 354(6).) Section 5 requires each “Office” to provide employees with withholding forms designated by the state comptroller. (Ill. Rev. Stat. 1979, ch. 127, par. 355.) Section 9 provides for termination of the withholding authorization upon termination of employment, upon expiration of the time designated, when the total amount authorized has "been withheld, or upon written notice by the employee of cancellation. (Ill. Rev. Stat. 1979, ch. 127, par. 359.) Section 10 states that each “Office” shall promulgate reasonable rules deemed necessary for the administration of the Act. Ill. Rev. Stat. 1979, ch. 127, par. 360.

Plaintiffs argue that there was no written authorization by plaintiffs, as required by section 3 of the Act, for the sums withheld by defendant to be deducted from their salaries. We note, however, that section 3 does not purport to specify the form of writing required. It appears to be sufficient that the instant written contracts purport to authorize the withholding in question by incorporating the parking regulations providing for such withholding. Plaintiffs maintain that a separate signed authorization is required under Brooks v. Board of Trustees (1980), 90 Ill. App. 3d 591, 413 N.E.2d 513. However, the court in Brooks stated that the “authorization” consisted of a portion of

“plaintiff’s employment contract which provides in relevant part:
‘I authorize the University of Illinois to deliver my paycheck in the manner indicated above, and agree that the University may withhold a sufficient amount to cover obligations which may be due or become due the University whether by contract, lease, under its rules and regulations, or otherwise.’ ” (90 Ill. App. 3d 591, 592, 413 N.E.2d 513, 514.)

This is an apparent reference to a contract containing an express authorization, not a “separate” authorization. Further, while the nature of the written authorization was the subject of comment in Brooks, its sufficiency was not at issue there: Any comment regarding the sufficiency of the authorization, therefore, is dictum.

Plaintiffs argue that none of the stated purposes of section 4 of the Act “even remotely” encompasses the deductions in question. However, purpose (6) (Ill. Rev. Stat. 1979, ch. 127, par. 354(6)) expressly encompasses payroll, deductions “for payment to or for the benefit of” universities and does not purport to limit the reasons for which such deductions may be made. As stated by the court in Brooks, “[T]he university is expressly authorized to withhold monies from an employee by the State Salary and Annuity Withholding Act (Ill. Rev. Stat. 1979, ch. 127, par. 354).” 90 Ill. App. 3d 591, 592, 413 N.E.2d 513, 514.

Plaintiffs argue that the promulgation of rules or regulations is required under section 10 of the Act; however, plaintiffs do not suggest any particular rules that should have been promulgated. We conclude, therefore, that under the provisions of this section, defendant need not have promulgated any rules if it deemed that none were necessary.

Plaintiffs urge that they were not provided with, and did not execute, withholding authorization forms as required under section 5 of the Act. Such a form would presumably set forth the information required under section 3, i.e., the amount withheld, the purpose therefor, and the period of time designated. Obviously, the amount and the period of time could not be set forth in advance for parking violation assessments. A form designed to set forth that information could only be meaningful if the employee filled it out after the liability arose or if the employee signed the authorization without inserting the amount at the time he accepted his appointment. The former alternative would not be practicable since it could only arise where an employee had maintained a course of conduct of refusal to comply. The latter alternative would not provide the employee more protection than the procedure adopted by defendant in the instant case because in either event defendant would be required to decide whether and how much to withhold. Regardless, the authoriztion to withhold from the employee’s salary in Brooks was approved by the court, and it did not contain the specificity plaintiffs contend was required by section 5 of the Act.

Although the framework of the Act is not easily applied to involuntary deductions such as in the case at bar, we are not persuaded that for that reason the instant deductions must fail. We do not consider section 5 or any other section of the Act to invalidate deductions for which a proper withholding form is not practicable. Additionally, we agree with defendant that the Act is not the sole source of authority for making payroll deductions from defendant’s employees. In this regard, the Act does not expressly state that it is the sole source of such authority. Further, we note that there are purposes not listed in section 4 for which deductions obviously could be made, including Federal and State income taxes.

We find the instant facts distinguishable from Donow v. Board of Trustees (1974), 21 Ill. App. 3d 139, 146, 314 N.E.2d 704, 709. In Donow this court stated that its examination disclosed that “nowhere in the creating statutes, in the regulations, or in the appointing papers is there any specific grant of authority given to the Board to authorize such deductions as were made here.” The instant plaintiffs’ notices of appointment expressly incorporate the regulations, which specifically provide that any unpaid charge under the regulations may be deducted from the employee’s paycheck.

Plaintiffs urge that the instant parking violation fine provisions are unenforceable penalty provisions. Plaintiffs argue that defendant is estopped from contending otherwise by reason of this court’s decision in Donow, in which it was held that defendant’s parking violation provisions constituted an unenforceable penalty under the employment contracts. We note that changes have been made in those provisions and that they now provide for fines in specific amounts, whereas in Donow those amounts were determined by a parking division officer. For this reason, we need not further consider plaintiffs’ estoppel contention. However, it is noteworthy in this regard that defendant asserts that changes were made in the regulations for the specific purpose of correcting the shortcomings therein found to exist by this court in Donow. Defendant’s intentions in revising the regulations are of no consequence in this appeal; however, the changes which have been made in the regulations since Donow render that decision of little practical benefit in deciding the case at bar.

Plaintiffs contend further that the alleged contract contained in their notice of employment provides for an unenforceable penalty. This argument is based on the contention that plaintiffs consider the general procedure established as giving defendant the unbridled authority to assess a financial charge against them without their having the benefit of a determination as to their guilt or responsibility and the amount to be ultimately withheld from their salaries. Thus, plaintiffs contend that the administrative appeal process set forth in the regulations, and incorporated into the contracts by reference, was inadequate to adjudicate such claims. However, in this regard, the record in the instant case does not support the proposition that these procedures were inadequate, because: (1) plaintiffs failed to pursue these procedures, and (2) the procedures of the hearing officer and the Traffic Appeal Board are not set forth of record and, therefore, are not before us.

In this state of the record, any claim by plaintiffs that the procedure established provided for an unenforceable penalty or that the assessments were excessive is waived. This follows from our conclusion that plaintiffs have waived any claim that the appeals system set forth in the regulations did not afford due process of law. (See Brooks v. Board of Trustees (1980), 90 Ill. App. 3d 591, 592, 413 N.E.2d 513, 514.) Due process requires only notice and an opportunity to be heard at an appropriate time in a proceeding. (First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 438, 202 N.E.2d 26, 30.) The general rule is that it is the duty of a person, whenever he regards his constitutional rights to have been invaded, to raise an objection at the earliest fair opportunity, and the failure to do so amounts to a waiver of the right. (Angelini v. Snow (1978), 58 Ill. App. 3d 116, 118, 374 N.E.2d 215, 217.) A court will determine the validity of a statute or ordinance only in light of the factual background presented by the record. (Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 430, 123 N.E.2d 312, 314.) Plaintiffs having failed to pursue the appeal process, we must assume that procedure to be sufficient and fair rather than speculate to the contrary. Plaintiffs having chosen to bypass that system, we conclude that they have also waived the issues they could have adjudicated within that system, i.e., their “guilt” and the reasonableness of the amounts of the assessments against them. Regarding the reasonableness of the amounts of the assessments, we note that the absolute amounts of the assessments provided for in the instant case are sufficiently small that, if they do in fact exceed actual damages, that excess is not manifestly apparent. These assessments are “not, on the face of the contract, out of all proportion to the probable loss ***.” (Sun Printing & Publishing Association v. Moore (1902), 183 U.S. 642, 668-69, 46 L. Ed. 366, 380, 22 S. Ct. 240, 251.) Therefore, we conclude that the trial court was correct in rejecting plaintiffs’ “penalty” argument as a basis for granting a summary judgment in plaintiffs’ favor.

For the reasons stated above, we conclude that defendant had contractual authority to make the deductions complained of and was not barred from doing so by statute. Therefore, we reverse the judgment of the trial court granting plaintiffs’ motion for summary judgment on their declaratory judgment suit and enter summary judgment for defendant on its counterclaim for declaratory judgment, pursuant to our authority under Supreme Court Rule 366(a)(5) (91 Ill. 2d R. 366(aX5)).

Finally, we consider plaintiffs’ appeal from summary judgment for defendant on defendant’s counterclaim for a money judgment for the amount alleged to be due it from plaintiffs. The record indicates that defendant has already deducted the sums in question from plaintiffs’ salaries; we find nothing in the record or in the assertions of the parties to indicate that defendant has returned those sums to plaintiffs. Because we have determined that plaintiffs are not entitled to judgment in the amount of those sums on their claims and because defendant already has received what it seeks, defendant is not entitled to further judgment. Therefore, we vacate judgment for defendant on its counterclaim for a money judgment against plaintiffs, pursuant to our authority under Supreme Court Rule 366(a)(5) (91 Ill. 2d R. 366(a)(5)).

Judgment reversed in part and vacated in part.

JONES and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    BOB J. URY, Plaintiff-Appellee, v. FRUIT BELT SERVICE COMPANY, Defendant-Appellant.
    Fifth District
    No. 81 — 618
    Opinion filed August 10, 1982.
    J. Lewis Wingate, of Vienna, for appellant.
    John P. Womick, of Carbondale, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

This appeal was brought by defendant Fruit Belt Service Company after the circuit court of Johnson County entered judgment for plaintiff Bob J. Ury on two counts to recover overtime wages allegedly due under the Federal Fair Labor Standards Act and the Illinois Wage Payment and Collection Act, respectively. We affirm the judgment of the circuit court.

On appeal, defendant asserts that the trial court erred by ruling that Mr. Ury’s employment came within the provisions of the Fair Labor Standards Act, section 207. (29 U.S.C. sec. 207 (1976).) The Fair Labor Standards Act provides that an employee who works ip excess of 40 hours during his work week is entitled to be paid at a rate not less than IV2 times the regular rate at which he is employed. (29 U.S.C. sec. 206 (1976).) However, the Fair Labor Standards Act also exempts from its wage and hour provisions those employees employed in the capacity of “outside salesman,” as defined in the Act. (29 U.S.C. sec. 213(a)(1) (1976).) Regulations promulgated by the Department of Labor state that when a person’s nonselling duties do not exceed 20%, or in this case eight hours, of the work week, then that employee is performing “outside salesman” duties for which overtime pay is unavailable. 29 C.F.R. sec. 541.507 (1977).

The issue, then, becomes the characterization of Mr. Ury’s employment. The Department of Labor employee furnished the criteria by which he determined that Fruit Belt Service Company owed the plaintiff overtime pay. He stated that the servicing of customers for sales which had actually been made by others, the delivering to a customer of a product actually sold by another, the installation or maintenance of equipment, and bookkeeping and other office duties would be considered nonselling duties. The representative found that Mr. Ury’s nonselling duties exceeded 20% of the hours he worked in the week, and thus he did not qualify as an “outside salesman,” as defined by the Act.

The company protested that the plaintiff was hired to perform selling duties, not to maintain or repair equipment. They insisted that his duties included selling petroleum, writing sales tickets, and delivering petroleum to the customer. They suggested other factors which should be used to characterize his employment as exempt: the extent of compensation, the extent of direct and consistent supervision, the amount and type of contractual work, and the job title or description. Fruit Belt explained that Mr. Ury was the sole contact with customers and he determined his own working hours. They said he was independent of his employer’s personal supervision and his pay was based on commission. They concluded that these factors were sufficient to find that he was a salesman within the meaning of the Act, and that, therefore, the trial court erred in finding to the contrary.

The decision of the trial court should be reversed only if it is against the manifest weight of the evidence. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122, 426 N.E.2d 604.) Since there is ample evidence in the record to sustain the trial court’s ruling, we will not overturn it. We rely first on the Department of Labor representative’s recommendations. The representative interviewed a number of people about the type of work Mr. Ury was required to perform. The information he received coincided with that offered by plaintiff, who testified at length about his responsibilities. He said he spent many hours at the plant performing bookkeeping and collection duties, installing equipment, repairing equipment, delivering products (many of which were sold through a bid process rather than through any sales efforts conducted by plaintiff), occasionally working at the service station, maintaining the company truck, loading and unloading supplies at the plant, and other miscellaneous nonselling activities. His testimony was corroborated by another witness. Thus, we are satisfied that the trial court’s decision that Mr. Ury’s employment came within the provisions of the Fair Labor Standards Act was based on sufficient evidence and was, therefore, a sound one.

Defendant also challenges the trial court’s finding that the Elinois Wage Payment and Collection Act prohibited the defendant from withholding a portion of Mr. Ury’s income and placing it in a reserve account. (Ill. Rev. Stat. 1979, ch. 48, par. 39m — 9.) The account, held pursuant to a uniform petroleum salesman’s agreement, was designed to protect Fruit Belt against uncollectible debts. However, section 9 of the Elinois Wage Payment and Collection Act prohibits unilateral deductions from an employee’s wages except for lawful purposes or where the deduction benefits the employee. (Ill. Rev.. Stat. 1979, ch. 48, par. 39m — 9.) Here, the reserve account was solely for the benefit of the defendant. Defendant argues that the Act does not apply to reserve accounts such as the one maintained by them; yet, there was evidence in the record that the Elinois Department of Labor, finding the Act did apply, held that defendant’s practice of withholding money from plaintiff’s salary was illegal. We also read the statute as proscribing this type of reserve account.

Accordingly, we affirm the judgment of the circuit court of Johnson County.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. SCRIBNER, Defendant-Appellant.
    Fifth District
    No. 81 — 388
    Opinion filed August 10, 1982.

      Edward Neville, of East St. Louis, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

After a jury trial in the circuit court of Madison County, defendant was convicted of two counts of communicating with a witness. He was sentenced to 18 months’ probation, with periodic imprisonment for six months on weekends in the Madison County jail. In this appeal defendant raises the following issues: (1) whether tape recordings played at trial should have been suppressed for failure to comply with section 108A — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 108A — 3); (2) whether the State’s proof was worthy of belief; (3) whether the State’s proof, if believed, sufficiently proved the acts charged; (4) whether there was a fatal variance between the acts charged and the proof adduced; and (5) whether the court erred in refusing defendant’s tendered entrapment instruction.

The operative facts concerned criminal charges against Kevin Crotty and juvenile proceedings against Jeffrey Crotty, defendant’s nephews, stemming from a fight between the nephews and John Zini, Jr., the complainant in the instant case. The evidence established that defendant telephoned Mr. Zini, who in turn telephoned Detective Thomas King of the East Alton police department. Following the telephone conversations, the State’s Attorney of Madison County applied for authorization for an eavesdropping device. The application, supported by Detective King’s affidavit, was approved by a circuit judge. With Mr. Zini’s knowledge and consent, a tape recorder was attached to his telephone. The resulting recording of a conversation between defendant and Mr. Zini is the first recording in issue on this appeal. Later a body recorder was placed on Mr. Zini, resulting in the taping of conversations between Mr. Zini and defendant when the two men met to discuss an alleged proposition of defendant to Mr. Zini to pay him for going to the State’s Attorney’s office to request that charges against the Crottys be dropped. There was also testimony concerning surveillance by various officers during the meetings and conversations. At the office of the State’s Attorney, Mr. Zini signed two affidavits. The first stated that he was dropping charges against Kevin and Jeff Grotty and that he was not being threatened, coerced, or paid to do so. The second, apparently signed surreptitiously, stated that he was being offered $500 by defendant to drop charges and that he intended to prosecute despite that payment. Defendant gave Mr. Zini $100 prior to entering the State’s Attorney’s office and $150 upon leaving. According to Mr. Zini, the rest was to be paid upon the juvenile’s release from detention.

The jury found defendant guilty of (1) offering money and (2) delivering money to Mr. Zini with intent to deter him “from testifying freely, fully and truthfully” in the prosecution against Kevin Grotty.

Detective King’s affidavit in support of the State’s Attorney’s application for eavesdropping authorization included, inter alia, the following statements: (1) Affiant was in charge of investigating the beating of Mr. Zini; (2) Mr. Zini had identified Kevin and Jeffrey Grotty as the assailants; (3) felony charges and juvenile petitions had been filed against Kevin and Jeffrey Grotty, respectively; (4) Mr. Zini had stated to affiant that defendant had contacted Mr. Zini and wanted to know how he could “compensate” him for his injuries; (5) Mr. Zini had stated that defendant was “attempting to buy him off”; (6) Mr. Zini had asked defendant to call him back the next day at 12:30 p.m.; and (7) details of the conversation were expected to set up a meeting to pay Mr. Zini not to prosecute.

We first consider defendant’s contention that the tape recordings should have been suppressed. There are three components to this argument:

First, defendant argues that the written application for eavesdropping device failed to identify the State’s Attorney seeking the authorization as required by section 108A — 3(a)(1). However, we find the State’s Attorney’s written and signed authorization on the application itself. It appears from defendant’s citations to the record in support of this contention that defendant finds fault with the lack of such written authorization upon Detective King’s affidavit in support of the application. This argument confuses the affidavit in support of the application with the application itself.

Second, defendant contends that the record does not indicate a proper consent to the eavesdropping by Mr. Zini, in that the sole written authorization by Mr. Zini of record bears a date and time later than the time at which all surveillance was completed. We reject this contention. First, the statute does not require written consent. Second, the statute requires only that the authorizing court find that one party “has or will have consented ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 108A — 4(a).) Thus, the court need not be presented with proof of past or present consent as of the time of the eavesdropping application. Finally, we do not view the statute as requiring a recital that a person has consented or will consent to the eavesdropping. Here, Detective King’s affidavit recited Mr. Zini’s identity (Ill. Rev. Stat. 1979, ch. 38, par. 108A— 3(a)(2)(c)) several times under circumstances supporting a finding (Ill. Rev. Stat. 1979, ch. 38, par. 108A — 4(a)) that Mr. Zini was assisting in the prosecution of defendant and had consented or would consent to the eavesdropping.

Third, defendant contends that the application for eavesdropping was insufficient because it failed to state that Detective King believed that a felony had been or was about to be committed. The statute requires that the application include a statement of details as to the felony that has been, is being, or is about to be committed. (Ill. Rev. Stat. 1979, ch. 38, par. 108A — 3(a)(2)(a).) While the instant application and accompanying affidavit did not name any specific felony, the affidavit set forth facts and circumstances sufficiently indicating that the offense of communicating with a witness was about to be committed. We know of no requirement that the affidavit set forth expressly the affiant’s belief that a felony has been, is being, or is about to be committed.

Next, we consider defendant’s contention that the State’s proof was not worthy of belief. Defendant points out minor inconsistencies in Mr. Zini’s and Detective King’s testimony, none of which merit recitation here. However, the credibility of the witnesses is for the jury to determine (People v. Cook (1976), 41 Ill. App. 3d 946, 951, 354 N.E.2d 122, 127), as is the effect of an alleged impeachment (Beedle v. People (1903), 204 Ill. 197, 202, 68 N.E. 434, 435). Therefore, we are not at liberty to pass upon the credibility of the witnesses as requested by defendant.

We conclude that none of defendant’s attacks upon the admissibility of the State’s evidence is meritorious; we now consider defendant’s contention that the State’s proof, if believed, did not prove the offense charged, an issue raised by defendant at the close of the State’s case and in his post-trial motion.

Defendant was charged with communicating with a witness, which offense is committed, inter alia, by a person who, “with intent to deter any *** witness from testifying freely, fully and truthfully to any matter pending in any court *** offers or delivers money *** to such *** witness ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 32— 4(b).) Defendant urges that the evidence shows, at most, intent to cause Mr. Zini to ask the State’s Attorney to drop charges. However, criminal intent may be shown by circumstantial evidence. It is rarely susceptible of direct proof but ordinarily must be inferred from the acts and conduct of the party and the attendant circumstances. (People v. Soznowski (1961), 22 Ill. 2d 540, 543, 177 N.E.2d 146, 148.) It is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the accused’s guilt, but that they be inconsistent, upon any reasonable hypothesis, with his innocence. (People v. Wilson (1948), 400 Ill. 461, 473, 81 N.E.2d 211, 217.) Further, in construing a statute, the language used should be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494.) In the instant case, we must consider not only whether defendant’s intent to deter Mr. Zini from testifying fully, freely and truthfully was sufficiently proved, but also whether circumstantial evidence of defendant’s intent was inconsistent with any reasonable hypothesis that such was not his intent.

Our review of the evidence reveals that, without doubt, defendant’s offer to pay Mr. Zini was made contingent upon Mr. Zini’s agreement to ask the State’s Attorney to drop charges against his nephews. There is no evidence of any specific request by defendant that Mr. Zini refuse to testify or testify other than freely, fully and truthfully. Rather, Mr. Zini admitted on several occasions at trial that defendant never made such a request. Nowhere in the recorded conversations between Mr. Zini and defendant does such a request appear. The power to dismiss criminal charges rests initially and primarily with the prosecuting officer (People v. Guido (1973), 11 Ill. App. 3d 1067, 1069, 297 N.E.2d 18, 19), in this case the State’s Attorney. The most the complaining witness can do is request that the State’s Attorney not proceed with the prosecution. As former assistant State’s Attorney Rand Hale admitted in testifying for the State, the State’s Attorney was empowered to disregard Mr. Zini’s request not to prosecute and to subpoena Mr. Zini to testify, though doing so would cause the State’s Attorney additional difficulty.

Based on the evidence adduced at trial, we conclude that defendant’s acts evinced an intent to cause Mr. Zini not to aid in prosecution of defendant’s nephews. Although such evidence establishes guilt of the petty offense of compounding a crime (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 1), this is not an offense defendant was charged with committing and presumably was not prepared to defend. Mr. Zini could have fulfilled his part of the bargain with defendant, as revealed by both the testimony of Mr. Zini and by the tapes, by asking the State’s Attorney to drop the charges; yet he still could have testified fully and truthfully at trial. We need not speculate as to whether defendant was prepared to offer further inducement to Mr. Zini to prevent Mr. Zini from testifying fully, freely and truthfully at trial should the State’s Attorney have insisted on proceeding with the prosecution against Kevin Grotty. No such proof was offered at trial.

The State argues, however, that if defendant’s acts and intent amounted to compounding a crime, this does not require the conclusion that the offense of communicating with a witness was not also proved. We have no quarrel with this proposition. Criminal or penal statutes are to be strictly construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. Criminal or penal statutes are not to be construed so strictly as to defeat the obvious intent of the legislature. (People v. Kirkrand (1947), 397 Ill. 588, 589-90, 74 N.E.2d 813, 815, cert. denied (1947), 332 U.S. 839, 92 L. Ed. 411, 68 S. Ct. 212.) However, we do not believe that the legislature intended section 32 — 4 of the Criminal Code of 1961 as a duplicate of section 32 — 1 of the Code and thus entirely superfluous. We are in no position to affirm defendant’s conviction on the basis that defendant must have been guilty of something, if not the offense charged.

The State also argues that the offense of compounding a crime only occurs where the prosecution has not yet commenced. We do not find the authorities cited (Ill. Ann. Stat., ch. 38, par. 32 — 1, Committee Comments — 1961, at 335-36 (Smith-Hurd 1977); Falco, Inc. v. Bates (1975), 30 Ill. App. 3d 570, 334 N.E.2d 169) to be supportive of that proposition. In any event, it is sufficient that we conclude that the State’s evidence, if it were accepted as true, was not sufficient to establish that defendant committed the offense charged. Further, in view of this conclusion, we need not consider the remaining arguments advanced by defendant.

For the reasons above stated, the judgment of the circuit court of Madison County is reversed.

Reversed.

JONES and HARRISON, JJ., concur.


text:
    CARL GASTON, Indiv. and as Ex’r of the Estate of Margaret Gaston, Deceased, et al., Plaintiffs-Appellants, v. ARCHIE HAMILTON et al., Defendants-Appellees.
    Fifth District
    No. 81 — 181
    Opinion filed August 13, 1982.

      Lackey, Warner & Sauer, of Centraba, for appellants.
    Robert M. Crain, of Crain, Hall & Cooksey, Ltd., of Centraba, for appel-lees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, Carl Gaston, Mary Jane McCord, and Dale Gaston, appeal from a final judgment of the circuit court of Jackson County which denied all relief sought against the defendants, Archie Hamilton, Jr. (Archie), and Eula Hamilton (Eula). Although the plaintiffs raise several issues on this appeal, we need discuss only two of the plaintiffs’ assertions of error as necessary for our decision. The plaintiffs contend first that a life tenant with a power of sale may not defeat the interests of the remaindermen either directly or indirectly. Second, the plaintiffs maintain that a fiduciary relationship exists as a matter of law between a life tenant and the remaindermen. For the reasons which follow, we affirm the judgment of the circuit court.

In 1951 Archibald C. Hamilton, Sr., Eula’s husband, died testate. His will devised all of his real estate to Eula “to have and to hold *** for and during the term of her natural life.” The will further provided that:

“I authorize and empower my wife, Eula Hamilton, to sell at public or private sale any part or all of the real estate owned by me at the time of my death devised to her for life, and to execute a good and sufficient deed, conveying said real estate to the purchaser thereof, in which instance she shall have a life estate in the proceeds realized from the sale of my real estate and I further expressly provide that my wife be, and she is hereby empowered to use any part of the proceeds of the property bequeathed to her for life, either real or personal, for her own support, and she shall not be accountable to any person for the amount so used by her.
After the death of my wife, I give, bequeath and devise all real estate owned by me, provided it has not been sold by my wife, to my two children; ARCHIE C. HAMILTON, JR. and MARGARET GASTON, share and share alike, and if such real estate has been sold by her at the death of my wife, I give, bequeath and devise one-half of the proceeds realized from said sale to my children, ARCHIE C. HAMILTON, JR. and MARGARET GASTON, share and share alike.”

Margaret Gaston died in 1975, and her interest in the property passed by the terms of her will to the plaintiffs in this case.

In 1942 Archie began farming the property, and from 1951 until 1975 did so under an oral year-to-year tenancy agreement with Eula. Since 1944 Archie’s farm tenancy was Eula’s sole source of support. On February 28, 1975, Eula executed a five-year lease of the land to Archie. In May of 1975, a representative of the Ziegler Coal Company contacted Eula and Archie for the purpose of acquiring the land for a coal dock facility. A written lease was prepared by the coal company, but the plaintiffs refused to sign it because it failed to recite the consideration which Archie was to receive in exchange for his leasehold. Eula thereafter exercised her power of sale and transferred the land to the coal company for $478,420 payable over 40 years at six percent interest. Archie entered into a separate agreement by which he quit-claimed his interest to the coal company. Although a revenue declaration recited the consideration for this transaction to be $5,000, Archie received from the coal company a check for $320,000 and a lease-back agreement, among other things.

The plaintiffs thereafter instituted this suit. Count I of the complaint alleged that the defendants in concert had arranged and structured the sale of the real property so as to divert $320,000 to Archie and thereby wrongfully exclude the plaintiffs from enjoyment of their remainder interests in breach of a fiduciary duty by the life tenant. Count I also prayed for various forms of equitable relief. Count II sought equitable relief for Archie’s alleged exercise of undue influence over Eula in breach of his fiduciary duties. After a bench trial, the circuit court found that Archie had not exerted undue influence or pressure on Eula, that the plaintiffs had failed to show any concerted action by the defendants to divert remuneration from the plaintiffs, and that the plaintiffs had failed to prove the existence of a fiduciary relationship between the defendants.

On this appeal the plaintiffs first contend that a life tenant may not defeat the interests of the remaindermen, either directly or indirectly. While this may be a sound formulation of Illinois law as an abstract principle (see, e.g., Cales v. Dressier (1924), 315 Ill. 142, 148, 146 N.E. 162; Galford v. Eastman (1909), 242 Ill. 41, 47, 89 N.E. 783), we find the rule inapplicable to the controversy presented for decision. In the case sub judice, the will bequeaths the testator’s real estate to Eula “to have and to hold *** for and during the term of her natural life.” The parties agree, and we hold, that the language created a life estate in favor of Eula in the property. (See generally Griffin v. Griffin (1963), 29 Ill. 2d 354, 194 N.E.2d 641.) The will also empowered Eula to sell the property and, in the event that she exercised the power of sale, expressly provided that she was to have a life estate in the proceeds thereof and that the children would have remainder interests therein. The gravamen of the plaintiffs’ complaint appears to be, in the words of the trial court, that “they did not want to receive their part of the proceeds after the death of Eula Hamilton in installment payments paid out over 40 years ***.” To avoid this result, the plaintiffs have characterized their interests as vested remainders and described the payment to Archie as a diversion. We find these labels inaccurate because they fail to reflect the effect of the power of sale on their interests and the value, to the coal company, of Archie’s leasehold.

“Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of or into the gift to the remainder-man then the remainder is contingent, but if, after words giving a vested interest, a clause is added making it subject to being divested, the remainder is vested. Thus, on a devise to A for life, the remainder to his children, but if any child dies in .the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death, but on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent.” (Kost v. Foster (1950), 406 Ill. 565, 569, 94 N.E.2d 302.)

The testator’s will declared that “[a]fter the death of my wife, I give, bequeath and devise all real estate owned by me, provided it has not been sold by my wife, to my two children ***.” Under Kost, the words “after the death of my wife” give a vested remainder interest because death is certain to occur eventually. However, the words “provided it has not been sold by my wife” subject the vested remainder to divestment on the exercise of the power of sale. We conclude that the plaintiffs’ interests in the real estate are vested remainders subject to defeasance on the exercise on the power of sale. (See Restatement of Property sec. 157, Comment on Clause (c), at 554 (1936).) When Eula did exercise the power of sale, the plaintiffs’ vested remainders in the real estate were defeated (Estate of Tognotti (1970), 128 Ill. App. 2d 120, 124, 212 N.E.2d 803), and in their stead, plaintiffs acquired remainder interests in the proceeds, under the terms of the will. We find nothing improper in Eula’s exercise of the power of sale, even though it defeated plaintiffs’ interest in the specified property, because this action was not only anticipated by the testator but authorized by him in the will by the specific power of sale given to Eula and the alternative gift to the children of a remainder in the proceeds of sale.

Plaintiffs also contend that because Archie received $320,000, they should share in that payment. This argument assumes that the payment was for Archie’s remainder interest and that it was somehow disguised as compensation for Archie’s leasehold. The evidence established that the opposite was so. As the trial court noted, the value of the leasehold to the coal company for the purpose of building a coal loading dock far exceeded the value of the leasehold were the land confined to use for exclusively agricultural purposes. There was no evidence that the lease was executed in order to circumvent the plaintiffs’ rights; in fact, the lease was executed before any negotiations were begun with the coal company. Whether the payment to Archie was intended to compensate him for his remainder or his leasehold was a question of fact and “a court of review will not reverse a judgment unless the findings are clearly and palpably against the manifest weight of the evidence.” (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122, 426 N.E.2d 604.) The trial court’s findings were amply supported by the evidence and therefore we will not disturb the judgment on this basis.

Plaintiffs next contend that a fiduciary relationship exists as a matter of law between a life tenant and the remaindermen. A life tenant owes a duty to the remaindermen to prevent waste (Guhl v. Guhl (1941), 376 Ill. 100, 111, 33 N.E.2d 185), not to manipulate the title so as to defeat the remaindermen (Cales v. Dressier (1924), 315 Ill. 142, 148), and not to transfer the property for an inadequate consideration (De Groot v. Kohr (1971), 2 Ill. App. 3d 924, 927). The trial court found that the defendants had not acted in concert to structure the sale so as to defeat the remaindermen and that the plaintiffs had failed to prove that the consideration was inadequate or somehow “diverted” to Archie. There was no evidence at all of waste. These findings are amply supported by the evidence and will not be disturbed on appeal. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 122.) This obviates an extended discussion of plaintiffs’ last point, which was that the defendants had the burden of proving that their conduct was fair and proper. We find that the defendants proved by clear and convincing evidence that their conduct in the questioned transaction was fair and proper. We note here that the plaintiffs have not appealed from the trial court’s finding that Archie had not breached any fiduciary relationship nor overreached or exerted undue influence on Eula at the plaintiffs’ expense.

Because no error has been shown in the proceedings in the circuit court of Jackson County, we affirm the judgment of that court.

Affirmed.

EARNS, P. J., and WELCH, J., concur.


author: PRESIDING JUSTICE EARNS

text:
    DOYLE SHARRETT et al, Plaintiffs-Appellees, v. OWEN CAMPBELL et al., Defendants-Appellants.—(The City of Robinson, Defendant.)
    Fifth District
    No. 81—567
    Opinion filed August 12, 1982.
    Rehearing denied September 9, 1982.

      David M. Correll, Ltd., of Robinson, for appellants.
    Robert L. Douglas, Charles C. Roberts, and Fred W. Johnson, all of Robert L. Douglas, Ltd., of Robinson, for appellees.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Defendants, Owen and Patsy Campbell, appeal from the judgment of the circuit court of Crawford County in favor of plaintiffs, Doyle and Ada Sharrett, declaring that defendants’ lot in the Meserve Heirs Addition to the city of Robinson, Illinois, is classified as R-S under the applicable zoning ordinance; permanently enjoining defendants from any construction within 15 feet of the north boundary of plaintiffs’ adjoining lot; mandatorily requiring defendants to remove that portion of the residence which extends within the 15-foot area; and assessing plaintiffs’ costs and attorney fees against defendants.

Plaintiffs and defendants own adjoining lots in the Meserve Heirs Addition to the city of Robinson, Illinois, each owning two platted lots, plaintiffs’ lots being located directly south of defendants’. In September of 1980, defendants decided to build a house and applied for a building and improvement permit with the zoning administrator for the city of Robinson. Walter Newlin, zoning administrator during the relevant time, issued the permit to defendants showing the zoning classification as R-l.

Newlin testified that when he issued the permit he assumed “by knowing various things and buildings and where the R-l’s are” that defendants’ lot was zoned R-l. Newlin admitted, after verifying the proper zoning classification, that he was mistaken, that R-S was the correct classification and that he became aware of his mistake after the filing of the instant lawsuit. Newlin further testified that he informed defendants of the setback requirements for the R-l zoning classification and of the requirements contained in the Meserve Heirs Addition restrictive covenants.

Newlin also testified as to the zoning classification of plaintiffs’ lot. Plaintiffs’ house was originally built on an R-l permit, and a building and improvement permit was issued with an R-l classification; however, Ada Sharrett testified that two building and improvement permits had been issued to plaintiffs, by Newlin, listing the classification as R-S.

The important distinction, for the purposes of the instant appeal, between the R-l and the R-S zoning classification is that the R-l classification only requires a six-foot side yard whereas the R-S classification requires a 15-foot side yard. Under both classifications the eaves may extend out from the side of the house two inches per foot of side yard as measured from the lot line to the outer surface of the outside wall of the house.

All of the lots in the Meserve Heirs Addition are subject to a number of restrictive covenants, one of which provides:

“No building shall be located nearer than forty (40) feet to the front line, nor nearer than fifteen (15) feet to any side street line. All dwellings shall have a side yard of not less than six (6) feet measured from the face of the building to the property line and running along the side of the property. The total of two side yards for any one dwelling shall, however, be not less than fifteen (15) feet, no detached garage or other building shall be located nearer than eighty (80) feet to the front line, and shall be located at least five feet from any side or rear property line.”

In October 1980, defendants began construction and a subcontractor, Guyer, began to dig the footings for the structure. Ada Sharrett testified that in middle or late October she spoke with Guyer and indicated that she thought he was getting too close to the south property line. The southernmost portion of the construction consists of a garage and utility room. This area is the subject of the controversy.

In late October and early November 1980, concrete for the basement and the footings was poured. Work continued at the construction site for approximately three months. Ada Sharrett testified that, from January 18, 1981, through the date of trial, July 16 and 17, 1981, she kept a diary of the work performed on defendants’ home. The diary indicated that, as of January 18, substantial work had been performed on the house but little, if any, work had been performed on the garage and utility room. On January 20, plaintiffs left for a one-week vacation and, upon returning, noticed that work had been performed on the disputed area.

Herbert Young, defendants’ primary contractor, testified that after plaintiffs returned from their vacation they indicated to him that the overhang on the roof was too wide. Young determined that there might be a violation of the eaves requirement and informed defendants of this. At this point in the proceeding, the following exchange took place:

“Q. Did he [plaintiff], at any time, other than that one time, have a conversation with you?
A. Yes, sir.
Q. Tell Judge Arnold what that was.
A. Like I said before, they called me one night earlier, and was asking about the garage and the next morning *** they came over to the lot and asked if it would be six foot from the property line and I said, yes, it would be; and Mrs. Sharrett said if it is not six foot, we’ll make you move it, and I said, it will be six foot and it is.”

On January 29, 1981, plaintiffs' notified defendants and certain city officials that, they believed defendants to be in violation of the eaves restriction and that the side of the house was too close to the lot line. On Janaury 30, 1981, four city officials, Charles Alumbaugh, the mayor pro tem, Donald Hoagland and David Saad, members of the city council, and Newlin, met with the parties at the construction site to discuss possible violations. Alumbaugh testified that, at the time of the meeting, he believed defendants’ lot to be zoned R-l. Alumbaugh stated that “[w]e assumed it was R-l and I think everybody else assumed it was R-l.” Alumbaugh further testified that defendants were in violation of the eaves regulation and that a citation was issued. Alumbaugh was of the opinion that at the time of the meeting plaintiffs believed the property to be zoned R-l and that the six-foot side yard requirement was applicable. Hoagland also testified that at the time of the meeting plaintiffs believed the property to be zoned R-l and that the six-foot side yard requirement was applicable.

On February 4, 1981, plaintiffs filed a petition for injunction. Plaintiffs averred that the finished wall of defendants’ residence would be closer than six feet from their property line in violation of the restrictive covenant applicable to all lots in the Meserve Heirs Addition and sought an injunction requiring defendants to cease and desist from further construction. On February 5, 1981, the court issued a temporary restraining order, without notice, enjoining defendants from further construction. On February 13, 1981, after a hearing on defendants’ motion to quash the temporary restraining order, the injunction was dissolved by consent of the parties. On this same date, plaintiffs filed an amended petition for injunction. The amended petition contained three counts; count I for violation of the six-foot side yard requirement contained in the restrictive covenant; count II for the eaves violation, and count III for violation of the 15-foot side yard requirement pursuant to the R-S zoning ordinance. On February 23, 1981, plaintiffs filed a declaratory judgment action requesting the court to declare defendants’ lot in the Meserve Heirs Addition to be zoned R-S. Thereafter, these actions were consolidated.

On March 6, 1981, the parties entered into a stipulation which provided that defendants would make no further effort to obtain a variance regarding the eaves requirement and that no construction would continue in the disputed area until a final hearing and judgment on the merits in this consolidated action.

On October 21, 1981, following a two-day trial, the court entered an order granting judgment for plaintiffs on all counts.

As to that portion of the trial court’s order declaring the proper zoning classification of defendants’ lots to be R-S, it is undisputed that this is the appropriate classification. Newlin, the zoning administrator, admitted that he made a mistake when he issued the building and improvement permit designating the classification as R-l. It is also undisputed that defendants are in violation of the zoning ordinances of the city of Robinson, Illinois, as they relate to the length of the eaves. We note that defendants, upon learning of this violation, petitioned for a variance, which was denied, and, by stipulation of the parties, have agreed not to perfect their appeal to the Zoning Board until the instant litigation is completed. Therefore, the matters in controversy involve the alleged violations of the restrictive covenant and the applicability of the 15-foot side yard requirement of the R-S zoning ordinance.

The pertinent restrictive covenant requires a six-foot side yard as “measured from the face of the building to the property line and running along the side of the property.” The only evidence introduced regarding the distance from defendants’ garage to plaintiffs’ property line was that of Michael Gill, a civil engineer and land surveyor. Gill testified that he surveyed the area in question and determined that the distance from the southwest corner of the garage to plaintiffs’ property was 6.1 feet and that the distance from the southeast corner was 7 feet. The survey, which Gill had reduced to writing, was admitted into evidence. The evidence is uncontroverted that defendants’ garage and utility room, the southernmost part of the construction, was more than 6 feet from plaintiffs’ property line. Therefore, the finding of the trial court that defendants are in violation of the restrictive covenant is against the manifest weight of the evidence.

We note that in count I of their amended petition for injunction, plaintiffs aver that “the finished wall of the residence will be closer than six feet to the boundary of the property,” and in count III plaintiffs aver that “the side yard on the house being constructed by defendants is six (6) feet wide.” Although the issue is not raised by the parties, this may be a judicial admission establishing that the side yard is at least six feet as required by the terms of the restrictive covenant. We further note that plaintiffs’ counsel elicited testimony from Gill regarding the distance from plaintiffs’ property line to the furthest extension of the eave in order to establish that this distance is less than six feet. It is apparent that the trial court considered this when it stated, in its memorandum decision “that the South part of the Campbell house, which was apparently the last part to be constructed, was, with respect to the eaves, going to be less than six feet from the South line of the Campbell Lot nine (9).” While this is true, it is irrelevant to the issue of whether the restrictive covenant was violated because the covenant, by its terms, directs that the measurement be made from the face of the building to the property line.

The final issue before us involves the applicability of the 15-foot side yard requirement of the R-S zoning ordinance and thus, the mandatory injunction issued requiring defendants to remove that portion of the structure within this area. On appeal, defendants assert that, under the special facts and circumstances of this case, plaintiffs should be equitably estopped from claiming that defendants are in violation of the side yard requirement of the R-S zoning ordinance and that, in balancing the hardships involved in the mandatory injunction, the equities favor them. Plaintiffs argue that defendants did not prove their affirmative defense of estoppel, that they are not entitled to a balancing of the equities where they had notice of the existence of a dispute and that the judgment of the trial court is not against the manifest weight of the evidence.

We observe at the outset that estoppel arises in zoning cases in two situations. The first is where there is a substantial change of position under a building permit validly issued, which is later revoked because of subsequent zoning or changes in zoning. The second is where there has been a substantial change of position under an invalid permit and the party to whom the permit was issued was actively misled by city officers. (Richards v. City of Highland (1978), 59 Ill. App. 3d 692, 375 N.E.2d 1023; Excellent Builders, Inc. v. Pioneer Trust & Savings Bank (1973), 15 Ill. App. 3d 832, 305 N.E.2d 273.) We further observe that while estoppel has been applied against a municipality in many cases where a building permit was invalidly issued (see Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605; City of Peru v. Querciagrossa (1979), 73 Ill. App. 3d 1040, 392 N.E.2d 778, and cases cited therein), we have found only two Illinois cases where it has been applied against individual property owners. Richards; Parsons v. Guild Grain Co. (1970), 125 Ill. App. 2d 59, 259 N.E.2d 806.

Cities Service is the seminal case in Illinois concerning the application of estoppel against a municipality in a zoning case where a building permit was invalidly issued. In Cities Service, an action to enjoin enforcement of. an ordinance prohibiting the location of a gasoline station within 300 feet of a church, the Illinois Supreme Court delineated the general rules to be applied in such cases:

“The general rule is that a city cannot be estopped by an act of its agent beyond the authority conferred upon him. [Citations.] It has been stated that anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority, and that this is so even though the agent himself may have been unaware of the limitations on his authority. [Citation.] In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights. [Citation.]
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agent had done.” (21 Ill. 2d 157,160-61,171 N.E.2d 605, 607-08.)

In Cities Service, the court applied estoppel against the municipality where the oil company had incurred obligations of more than $6,000 in reliance on an invalidly issued permit and the apparent acquiescence of the city officials. The court noted that if the oil company had been aware of the applicable ordinance or made no attempt to become aware of it, then the issuance of a building permit contrary thereto would not create an estoppel against the city.

In City of Peru, a building permit was issued by the city zoning inspector who advised the defendants of the requisite setback lines. Following substantial expenditures incurred in excavating a basement and pouring concrete footings, the city “became aware for the first time that defendants’ proposed dwelling would violate the city zoning ordinance in three respects: (1) the lot area would be 3,300 square feet, not 6,000 as required by ordinance; (2) the front yard would be 14.9 feet deep, not 25 feet; (3) the backyard would be 20.4 feet deep, not 25 feet.” (73 Ill. App. 3d 1040, 1041, 392 N.E.2d 778, 779.) The city council voted to rescind the permit, brought an action to enjoin construction, and the defendants raised the affirmative defense of equitable estoppel. The appellate court, in reversing the trial court, held the city estopped from asserting the violation of the zoning ordinance because of defendants’ reliance on the building permit and the advice of the zoning inspector as to the setback requirements.

Cities Service and City of Peru are distinguishable from the instant case in that they involve the application of estoppel against a municipality whereas plaintiffs in this case brought a private enforcement action against defendants. As stated, we have found two Illinois cases in which estoppel was applied against individual property owners.

In Richards v. City of Highland (1978), 59 Ill. App. 3d 692, 375 N.E.2d 1023, plaintiffs, 35 residents of the Town and Country Estates Subdivision, brought an action against the city of Highland and the Ralph Korte Construction Company, seeking an injunction restraining defendants from constructing any building, other than a single-family dwelling, in the subdivision and for a declaratory judgment that multifamily dwellings were prohibited. The applicable zoning ordinance provided that all new subdivisions shall be classified R-l, in which only single-family dwellings are permitted; however, the city of Highland issued Korte two building permits for construction of apartment buildings, and Korte immediately began construction. At trial, the mayor and city manager of Highland testified that the area in question had always been treated as zoned R-3, which allowed for multi-family dwellings, and were of the opinion that the permits had been validly issued. The evidence was uncontroverted that Korte had expended over $58,000 for construction prior to the complaint being brought. The court in Richards, noting that at all times the city of Highland treated the area in question as zoned R-3, held plaintiffs to be es-topped from challenging the construction “in light of their failure to attempt to clarify the zoning situation or to enjoin other nonconforming uses, and in light of the substantial sum of money expended by Korte.” 59 Ill. App. 3d 692, 696, 375 N.E.2d 1023,1026-27.

In Parsons v. Guild Grain Co. (1970), 125 Ill. App. 2d 59, 259 N.E.2d 806, plaintiff, James C. Parsons, brought an action to enjoin defendant, Guild Grain Company, from constructing a grain storage bin, alleging that defendants were in violation of the applicable zoning ordinance. The parties owned adjoining lots in Geneseo, Illinois. Specifically, plaintiff alleged that the grain storage bin was not a permitted use within the general business zoning classification. The city issued a building permit for the proposed construction and defendant made substantial expenditures on the project. There was also evidence that defendant had shown the plans for the proposed construction to plaintiff prior to applying for the building permit, and that plaintiff had not objected. The court, relying on the opinion of the Illinois Supreme Court in Cities Service, found that the city of Geneseo would have been estopped had it brought the action against defendant and that there was “ample evidence for the trial court’s conclusion that the equities were against plaintiff and in favor of defendant.” (125 Ill. App. 2d 59, 65, 259 N.E.2d 806, 810.) The court, in Parsons, noted that:

“The reluctance of the court to estop a municipality from enforcing a violation of its zoning ordinances is rather directly related to the nature of the relationship of the corporate authority to its various officers and agents and the public nature of a municipality. The same reasons for declining to apply equitable estoppel against an individual property owner do not exist and indeed the equitable considerations are quite different.” 125 Ill. App. 2d 59, 64-65, 259 N.E.2d 806, 809.

In the instant case, defendants argue that plaintiffs should be equitably estopped from asserting the violation of the 15-foot side yard requirement of the R-S zoning classification and, regarding the issuance of the mandatory injunction, the equities favor them. We agree. In this case, as in Richards and Parsons, we have a nonmunicipal plaintiff and therefore, the judicial reluctance to apply estoppel is not present. We observe, as the court did in Parsons, that if the city of Robinson had brought this action, the conduct of the zoning administrator, the mayor, and the members of the city council, would have been sufficient to estop it from asserting the violation in question.

Plaintiffs argue that Parsons is distinguishable from the instant case in that the plaintiffs in Parsons were shown the proposed building plans prior to defendant’s applying for a building permit. While we recognize that the cases are factually distinct, we find ample evidence to support defendants’ affirmative defense of estoppel. Plaintiffs, as well as the city officials, believed defendants’ lot to be zoned R-l and, importantly, the six-foot side yard requirement to be applicable. Prior to February 13, 1981, the date of the filing of plaintiffs’ amended petition, there was no indication that the parties, or anyone else, were aware that the lot was actually zoned R-S. This was approximately 4V2 months after construction commenced. It is established, by the survey of Michael Gill, that defendants are more than six feet from defendants’ south property line. Plaintiffs argue, and the trial court found, that the garage, at that distance, would obstruct their view, present a fire hazard and add to their loss of privacy. However, the evidence is uncontroverted that the cost to defendants of relocating the garage and utility room to the north side of the lot would be between $15,000 and $20,000.

In conclusion, the record reveals that, prior to the filing of plaintiffs’ amended petition, the parties proceeded under the assumption that the six-foot side yard requirement was applicable. This assumption was reinforced, as it was in Richards, by the actions of the city officials. We note the substantial financial hardship defendants would suffer if the mandatory injunction were to stand. Therefore, we find that the instant case falls within the second class of zoning cases in which equitable estoppel arises; here there has been a substantial change of position under the permit issued by the zoning administrator and the defendants to whom the permit was issued were actively misled by city officers. Considering the special facts and circumstances of the instant case, plaintiffs are equitably estopped from now claiming defendants to be in violation of the 15-foot side yard requirement.

Our conclusion requires that the judgment assessing costs and attorney’s fees against defendants must also be reversed.

The judgment of the Circuit Court of Crawford County is accordingly reversed.

Reversed.

JONES and WELCH, JJ., concur.