author: JUSTICE LONDRIGAN

text:
    JANET M. PETERS, Petitioner-Appellant, v. BOARD OF EDUCATION OF RANTOUL TOWNSHIP HIGH SCHOOL DISTRICT NO. 193 OF CHAMPAIGN COUNTY, Respondent-Appellee.
    Fourth District
    No. 17431
    Opinion filed May 5,1982.
    Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellant.
    Robert A. Mathis, of Rantoul, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

In this appeal, we are called upon once again to interpret the tenure provisions of section 24 — 12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12) as they apply to a full-time teacher who was dismissed as a result of faculty reductions in the respondent school district. The controversy focuses upon that portion of section 24 — 12 which requires the school board to dismiss teachers of lower seniority before dismissing a tenured teacher of higher seniority who is legally qualified to hold a “position” currently held by the teacher of less seniority.

On July 28,1981, petitioner filed her petition for a writ of mandamus seeking reinstatement as a full-time teacher with respondent school district. Following a hearing, the petition was denied on August 18, 1981.

Petitioner, Janet Peters, a tenured teacher in the employment of respondent, began her duties in the 1976-77 school year. From 1976 through the 1980-81 school year she taught five English courses annually and occasionally supervised study halls. During those years, her English teaching assignments were uniformly divided as follows: two English III courses and three English II courses.

At the end of the 1979-80 school year, petitioner was honorably discharged due to a reduction in the number of teaching positions but was rehired for the following school year because of the retirement of another English teacher. Upon reinstatement, class schedules were shifted so that petitioner could be assigned to a case load identical to that which she had maintained in previous years. Throughout these years, other faculty, in varying degrees, also taught additional sections of English II and English III.

On April 1,1981, petitioner was informed of her honorable discharge effective at the end of the school year because of a resolution adopted by the school district to “discontinue the particular type of teaching service in which [petitioner is] now engaged.” Despite that claim by the school board, the course schedule for the 1981-82 school year reflected that one English teaching position remained unstaffed. Subsequent to petitioner’s discharge, another teacher with less seniority than petitioner was hired to fill that English position. Petitioner made a demand upon respondent for reinstatement to teach courses in English and European history, both of which she was qualified and authorized to teach under the pertinent State teaching requirements and her certificate valid for high school 6 — 12 teaching.

Although respondent admitted that petitioner was certified to teach sections of English and European history, the school district refused to reinstate petitioner because there was no “position” in those areas, held by a tenured teacher of less seniority, which petitioner was legally qualified to teach in its entirety. The English position, subsequently filled by a teacher with less seniority, included one section of journalism, three sections of English, and required the teacher to manage the school yearbook and newspaper. Respondent argued that since petitioner is not legally qualified to teach journalism, a claim which petitioner does not dispute, she was not qualified to fill that position. Petitioner also sought to teach courses in European history which the evidence showed was synonymous with course offerings designated as “world history.” Respondent argued that petitioner was not entitled to teach those sections of world history because they were included in a “position” consisting of two sections of world history and three sections of U.S. history, the latter of which petitioner is not legally qualified to teach. It is also undisputed that petitioner has never taught world or European history although she is legally qualified by the State Board of Education to do so.

In short, petitioner contends that she is entitled to be assigned the courses which she is legally qualified to teach but which now constitute only a portion of full-time positions as defined by the respondent school board. Respondent, on the other hand, argues that the board has wide discretion in defining the term “position” and that once defined, petitioner is only entitled to reinstatement if she can demonstrate that she is legally qualified to teach all of the courses encompassed within the “position” of the teacher she seeks to replace.

The tenure rights which petitioner seeks to invoke are based on those set forth in the School Code at section 24 — 12 which states in pertinent part:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, * * * in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first * ° Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12.

The complex aspects of the problem have been succinctly stated in the oft-quoted language hom Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 372 N.E.2d 990:

“The statutory term ‘position’ becomes complicated because of the practice of self-contained classrooms for some grades, and departmentalization to some extent in the middle grades, and subject matter segregation for majors and minors in high school. School districts may exercise wide latitude and autonomy in determining which grades will be clustered and which subjects will be grouped under one teacher and which departmentalized. The courts cannot allow school boards, whether in good or bad faith, to rearrange teaching assignments (positions) in ways which defeat the rights of tenured teachers and circumvent the purpose and spirit of the tenure laws.” (56 Ill. App. 3d 940, 944, 372 N.E.2d 990, 994.)

Since, in this case, two distinct issues are involved in determining whether petitioner is entitled to reinstatement and assignment to history or English courses, we must necessarily treat each aspect separately.

In order for petitioner to teach the world history courses, she would have to “bump” a teacher already assigned to those courses. As we have previously noted, to allow this would be to invite a chain reaction with senior teachers in turn preempting positions of the teaching assignments of those with less seniority. (Hayes v. Board of Education (1981), 103 Ill. App. 3d 498,431 N.E.2d 690.) In this regard, we cannot accept petitioner’s contention that she has a right to pick and choose a class or two from teaching positions which she is otherwise unqualified to teach so as to “create” a new position at the intended expense of other faculty members. Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126; Hayes.

However, the same cannot be said for the board’s refusal to reinstate petitioner to teach English. While the respondent has broad discretion to create new teaching positions and to arrange teaching assignments, these realignments cannot stand where the continued employment of a tenured teacher might be jeopardized. The board may not shift teachers so that respondent is no longer legally qualified to teach the position to which she has been assigned. (Higgins.) Stated in other terms, the statute prohibits a realignment of teaching assignments to avoid the existence of a position which could be filled by a tenured teacher for whom dismissal was sought. Hayes.

It is critical to note that this situation differs significantly from that presented by petitioner’s claim to the history courses. Implicit in the context in which “bumping” occurs, one or more of the other existing faculty members would either have been dismissed or had their otherwise full-time teaching positions reduced to accommodate the newly “created” positions caused by the vertical realignment of teaching loads. In the instant case, the realignment of courses envisioned by petitioner would not reduce the number of faculty nor affect any existing teaching loads in an adverse manner.

The evidence demonstrates that at least one other English faculty member is competent to teach journalism. That faculty member’s teaching position for 1981-82 was comprised exclusively of English courses which petitioner could have taught. The simple transportation of one class in English for one class in journalism would have had the effect of enabling each of the then existing faculty members to maintain a full class load without the necessity of dismissing petitioner. This is precisely the type of prohibited realignment of course assignments which avoids the existence of a position which petitioner is qualified to teach.

Where, as here, it can be demonstrated that courses in the particular discipline are freely interchangeable between the various faculty members, it is palpably arbitrary and capricious for the school board to assign courses so as to require dismissal of faculty when all existing faculty can be accommodated by internal realignment of teaching assignments which do not jeopardize any existing rights of other faculty members. When the status quo can be maintained, both with regard to personnel and teaching loads, senior faculty members have a right to insist upon the horizontal realignment of course assignments to preserve their full-time teaching status. We conclude that such horizontal realignment does not amount either to the “creation” of a position within the meaning ascribed to it, nor does petitioner’s request for realignment constitute “bumping” within the meaning of Higgins and Hayes. We also reject respondent’s contention that petitioner was not qualified to hold the English “position” because she was not qualified to supervise the yearbook and newspaper. The exhibits showed that in prior teaching years, a music teacher supervised these activities. Furthermore, the State Board of Education has not established any standards requiring particular academic credentials in this area. Finally, given the nature of the assignment, we fail to perceive why a qualified English teacher would not have sufficient expertise to supervise a high school yearbook and newspaper.

For the foregoing reasons, the judgment of the Champaign County circuit court is reversed and remanded with directions to issue the writ of mandamus.

Reversed and remanded with directions.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    BOARD OF EDUCATION OF CORNELL COMMUNITY HIGH SCHOOL, DISTRICT 70, Plaintiff-Appellant, v. PROPERTY TAX APPEAL BOARD OF THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    Fourth District
    No. 17459
    Opinion filed May 5,1982.
    Arvey, Hodes, Costello & Burman, of Chicago (Nathan M. Cohen, Robert M. Sarnoff, and Glen F. Zatz, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellee Property Tax Appeal Board of the Department of Revenue.
    Schiff, Hardin & Waite, of Chicago, and Frank M. Brady, of Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington (Aaron J. Kramer and Peter V. Baugher, of counsel), for appellee Arco Pipe Line Company.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

The issue here is whether crude oil, temporarily in tanks at the Flanagan Station of the Cushing-Chicago Pipe Line System located at Cornell in Livingston County, was (1) subject to assessment and taxation as personal property pursuant to section 18 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 499), or (2) exempt from such tax under the commerce clause.

The pipe line system extended some 600 miles from Cushing, Oklahoma, to Northwestern Indiana carrying oil in a northeasterly direction. The Flanagan Station had 14 tanks connected to the pipeline. When oil reached the station, it was diverted to various tanks in such a way as to blend various grades of crude oil into particular mixtures as desired by those to whom the oil was being shipped. The blended oil was then sent on. The parties agree that while the oil moved through the pipeline it was immune from local property taxation by the commerce clause. However, the interruption of a shipment of goods in interstate commerce “for a separate business purpose unrelated to the safe transportation of the goods, * * * for processing or for holding the goods pending receipt of orders” will withdraw the goods from the stream of commerce. (J. Nowack, R. Rotunda & J. Young, Constitutional Law 291 (1978).) The precise question presented is whether the placement of the oil in the tanks for blending purposes provided a nexus for a local property tax on the oil. We conclude that it did not.

Defendant, Arco Pipe Line Company (APL), owner of a 70% undivided interest in the Cushing-Chicago Pipe Line System, filed a personal property schedule with the assessor of Esman Township, Livingston County, covering the assessment date of April 1,1978. Flanagan Station is located in that township. The statement did not make any reference to oil stored in any of the tanks at the station. No assessment was made for any oil so stored. Plaintiff, Board of Education of Cornell Community High School, District 70, a taxing unit within whose boundaries Flanagan Station was located made objection to the Livingston County Board of Review. On September 9,1978, the Board of Review ordered the assessment to stand. Plaintiff appealed to defendant, Property Tax Appeal Board (PTAB), which, after a de novo hearing (Ill. Rev. Stat. 1979, ch. 120, par. 592.2) entered an order on May 1,1980, upholding the assessment. Plaintiff then filed for administrative review in the circuit court of Cook County. Upon motions of defendants, that court found the proper venue to be in Livingston County (Ill. Rev. Stat. 1977, ch. 110, par. 268) and transferred the case to the circuit court of that county. After a hearing, that court affirmed. We, in turn, affirm the circuit court.

The evidence was undisputed that the pipeline carrier had no ownership in the oil and no power to direct to whom it would be delivered. The oil was not kept long in the tanks, for it traveled through the entire 600-mile pipeline in an average of six days. A witness for plaintiff, Donald Oberle, a chemical engineer, testified that the storage and blending was for the benefit of the shipper, the pipeline carrier, and the purchaser. He described the blending as a method to enable the pipeline to store more oil in fewer tanks because the oil was received in more different grades than needed by the purchasers. He said that by storing, the pipeline could continue to meet demand in the event of a stoppage closer to the source than the station where the storage occurred. He called the blending the first stage in manufacturing of the refined product, because it was a function the refiner would have to perform if not done before it reached the refiner. The evidence was undisputed that the pipeline carrier received no extra compensation for the blending, but a witness for APL admitted it might lose business if the blending were not performed.

The PTAB found: (1) the tanks were an “integral part of the pipeline system” and did not “constitute storage for a break in the interstate flow of the product”; (2) the blending was not “a part of the production or manufacturing of a final product”; and (3) transportation of the oil was “APL’s primary function while blending [was] in fact incidental.” The circuit court held those findings to be properly supported by the evidence and agreed with the PTAB’s conclusion that the oil was immune from local taxation. Plaintiff argues that (1) the blending was not incidental; and (2) because the blending was done as a step in the manufacturing of the product with the incentive of enhancing the business and thus the profit of APL, the storage and blending did constitute a break in the interstate flow of the product which would render it subject to tax.

We consider the instant situation to have been materially different than that in the various cases cited by plaintiff where the processing of goods in transit were held to constitute a break in the transit subjecting the goods to local taxation. In General Oil Co. v. Crain (1908), 209 U.S. 211, 52 L. Ed. 754, 28 S. Ct. 475, oil was being stored in tanks for a substantial period pending distribution pursuant to orders already received. (See also McCutchen v. Board of Equalization of Taxes (1915), 87 N.J.L. 370, 94 A. 310.) In Bacon v. Illinois (1913), 227 U.S. 504, 57 L. Ed. 615,33 S. Ct. 299, grain was owned and held by an elevator operator for purposes of inspecting, weighing, cleaning, clipping, drying, sacking, and mixing as specified in contracts of sale. Although the owner had the privilege of continuing the transportation under shipping contracts with railroads, he had the right to deal with the grain as he saw fit. In Missouri-Pacific R. Co. v. Schnipper (E.D. Ill. 1931), 51 F. 2d 749, railroad ties were being held for three or four months before further shipment.

In State v. Continental Oil Co. (1944), 218 Minn. 123,15 N.W. 2d 542, gasoline was being held by a pipeline operator for the purpose of adding lead, coloring, oils, solvents, and highly volatile gasoline. In Standard Oil Co. v. Combs (1884), 96 Ind. 179, an interstate shipment of staves was interrupted in transit to be passed through a machine which cut them to uniform length and thickness. The procedure constituted the finishing process in their manufacture. In Republic Oil Refining Co. v. Granger (3d Cir. 1952), 198 F.2d 161, the blending of oil took place in a pipeline only one-half mile in length and adjacent to a refinery which was the destination of the oil. The movement of the oil through the pipeline was deemed to be incidental to the operation of the refinery.

In Pan American Refining Corp. v. United States (S.D. Tex. 1953), 119 F. Supp. 698, the court examined the question of whether oil in pipelines was subject to a transportation tax. The court stated that the plaintiff’s case was not strengthened by their argument that blending was a refining process, and when blending occurs in pipelines such pipelines become part of the refinery process. The court recognized that blending is normally a refinery process but that frequently blending is accomplished by pumping a different ingredient into pipelines where they are thoroughly mixed by being forced under pressure to the pipeline terminus. The court found that the blending was incidental where transportation was the primary object, and the transportation through the pipeline would not therefore be exempt from the transportation tax. On the other hand, in Southern Minerals Corp. v. United States (S.D. Tex. 1956), 150 F. Supp. 646, that court had held blending operations not to be part of a through shipment of oil when they occurred after oil had been delivered to its owner’s premises and was awaiting shipment under specific sales contracts.

The situation at the Flanagan Station was more like that in Pan American Refining Corp., where the blending took place in a pipeline, than in Southern Minerals Corp., where it took place at the refinery after the completion of transportation through a pipeline. We do not interpret Pan American Refining Corp. to have indicated that the mere use of tanks to accomplish the blending would necessarily make the blending part of the refining process. We note that in Eureka Pipe Line Co. v. Hallanan (1921), 257 U.S. 265, 272, 66 L. Ed. 227, 232, 42 S. Ct. 101, 103, in an opinion holding a State tax on transporting petroleum invalid as to an interstate pipeline, Mr. Justice Holmes mentioned that as oil “runs into a tank on one side and out on the other,” the tank “may be regarded as a pipe of larger size.”

Defendants cite no cases where the placement of a property tax on goods temporarily delayed in interstate transit for processing has been held to be an undue burden on interstate commerce. They place substantial reliance upon language in Maryland v. Louisiana (1981), 451 U.S. 725, 68 L. Ed. 2d 576, 101 S. Ct. 2114. There, the United States Supreme Court held to be invalid a tax placed by the State of Louisiana upon the first use of natural gas made in the State whether it be a processing of the gas or immediate transmission of it to interstate or intrastate customers. The Act contained exemptions of benefit to intrastát'e customers, and the court held it to be an undue burden on interstate commerce for that reason. Defendants place emphasis upon the court’s statement that:

“Initially, it is clear to us that the flow of gas from the OCS wells, through processing plants in Louisiana, and through interstate pipelines to the ultimate consumers in over-30 States constitutes interstate commerce. Louisiana argues that the taxable ‘uses’ within the State break the flow of commerce and are wholly local events. But although the Louisiana ‘uses’ may possess a sufficient local nexus to support otherwise valid taxation,27 we do not agree that the flow of gas from the wellhead to the consumer, even though ‘interrupted’ by certain events, is anything but a continual flow of gas in interstate commerce. Gas crossing a state line at any stage of its movement to the ultimate consumer is in interstate commerce during the entire journey. [Citations.]” (Emphasis added.) 451 U.S. 725, 754-55, 68 L. Ed. 2d 576, 601, 101 S. Ct. 2114, 2133-34.

Footnote 27 to Maryland v. Louisiana states in part:

“The United States suggests that the uses enunciated in the Act do not have a sufficient local nexus to support the Tax under the Commerce Clause. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157 [, 98 L. Ed. 583, 74 S. Ct. 396] (1954). While the local nexus of certain of the uses is suspect, other uses would appear to have a substantial local nexus so that on the present record it would be difficult to say that the entire Tax was unconstitutional on this ground.” 451 U.S. 725,755, n.27,68 L. Ed. 2d 576, 601 n.27, 101 S. Ct. 2114, 2133 n.27.

In Michigan-Wisconsin Pipe Line Co., a State tax on the occupation of gathering or collecting gas from wells was held to be an undue burden on interstate commerce as applied to a pipeline receiving gas for transmission to interstate customers. The quoted language from Maryland v. Louisiana does not guide us in determining whether the act of the pipeline carrier in the instant case in blending the oil in the tanks gives the oil sufficient nexus in Illinois for imposition of a local property tax even though the “interruption” caused thereby would not otherwise keep the oil from being in the flow of interstate commerce.

After considering the authorities cited we agree with the trial court that the findings of PTAB were not contrary to the manifest weight of the evidence. We are also in substantial agreement with the reasoning of the trial court in its order of affirmance. The blending was the “natural physical result of running two or more grades of oil together as they [moved] under pressure through working tankage along the pipeline.” The oil moved through Flanagan Station relatively rapidly. The blending process was a most simple one. Nothing was added to the oils that had not come through the pipeline and nothing was taken out. If the tanks are considered an extension of the pipeline (Eureka Pipe Line Co.), the goods in transit were never taken out of the pipeline. Although the blending was of economic value to the recipient at the end of the pipeline, the value was not sufficient to be stated as an element of the charge made by the pipeline. Some evidence was presented that the blending was of some benefit to the carrier. Our affirmance is based upon our agreement that the blending of the oil in the tanks was too minor and incidental a part of the interstate transit of the oil to give it a nexus for local taxation.

Because of our determination, we need not discuss the dispute between the sides as to whether had the oil been subject to personal property tax, APL would have been (1) required to list the oil in its schedule filed with the township assessor, and (2) liable for the tax on the oil.

We affirm.

MILLS and LONDRIGAN, JJ., concur.


text:
      In re MARRIAGE OF PATRICIA MARIE GOSLIN, Petitioner-Appellant, and JESSE JAMES GOSLIN, Respondent-Appellee.
    Fourth District
    No. 17541
    Opinion filed May 5,1982.
    Kenneth E. Baughman, of Monticello, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Petitioner, Patricia M. Goslin, appeals a decision of the circuit court of Macon County entered October 6, 1981. After an ex parte hearing, the circuit court dismissed Goslin’s dissolution of marriage petition on the grounds that the court lacked subject matter jurisdiction. Specifically, the court found the alleged actions of mental cruelty occurred outside the State of Illinois and before the petitioner moved to Illinois. The court concluded for that reason, it had no subject matter jurisdiction.

On appeal, petitioner maintains the trial court erred in dismissing the petition for that reason.

The Illinois Marriage and Dissolution of Marriage Act (the Act) provides:

“The court shall enter a judgment of dissolution of marriage (formerly known as divorce) if:
(1) the court finds that one of the parties, at the time the action was commenced, was domiciled in this State or was stationed in this State while a member of the armed services, and that the domicile or military presence has been maintained for 90 days next preceding the making of the findings.” Ill. Rev. Stat. 1979, ch. 40, par. 401(1).

To comply with the jurisdictional requirements of the Act, one of the parties must have been domiciled in the State of Illinois for a period of 90 days prior to the court’s final decision. Although petitioner does not allege her domicile, she testified she has been living in the State of Illinois for four years prior to filing her petition. The Act contains no requirements that the acts forming the basis for the dissolution of marriage occur within the State of Illinois. The testimony was sufficient to show petitioner’s compliance with the statutory requirement necessary to bring the action in Illinois.

The requirements of the Illinois Marriage and Dissolution of Marriage Act are different than those under prior law which required a plaintiff in a divorce case to have been a resident of the State for one year prior to filing of the complaint or, when the grounds for divorce occurred in Illinois, to have been a resident for the preceding six months. Ill. Rev. Stat. 1975, ch. 40, par. 3; see Carbrey v. Carbrey (1969), 108 Ill. App. 2d 363, 247 N.E.2d 818.

Accordingly, we reverse the order of the trial court dismissing the complaint. We remand to the circuit court of Macon County with directions that petitioner be given an opportunity to amend and for further proceedings consistent with this opinion.

Reversed and remanded, with directions.

MILLS and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    BARKER-LUBIN CO., Plaintiff-Appellant, v. UNKNOWN HEIRS OR DEVISEES OF J. GERALD BARKER et al., Defendants-Appellees.,
    Fourth District
    No. 17357
    Opinion filed March 16,1982.
    Modified on denial of rehearing June 4,1982.
    Paul E. Adami, of Mohan, Alewelt & Prillaman, of Springfield, for appellant.
    James W. Evans, of Phipps & Evans, P. C., of Champaign, for appellees Champaign National Bank, Virgil C. Wikoff, and Helen M. Wikoff.
    William L. Hatch, of Hatch, Blockman & McPhéters, of Champaign, for appellee Commercial Bank of Champaign.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court of Champaign County which dismissed with prejudice its amended complaint for foreclosure of a mechanic’s lien against certain defendants. The trial court made the appropriate finding under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

The amended complaint is in two counts, each of which concerns three parcels of property. All parcels are in the same subdivision. The basis for the trial court’s order was the failure of the plaintiff to allocate its claim among the six lots.

The essential allegations of each, count are that the plaintiff is a Delaware corporation with its principal place of business in Springfield, Illinois, and that the defendant concerned in this appeal is the owner of three lots in a subdivision located in Champaign County, Illinois; that plaintiff entered into an agreement with the defendant’s predecessor in title to furnish building materials for the construction of multiple dwellings upon the premises and did furnish such materials; that certain items were furnished on September 15, 1978, and others on October 27, 1978; that plaintiff caused to be served upon all interested parties a subcontractor’s 90-day notice (Ill. Rev. Stat. 1979, ch. 82, par. 24) on December 14, 1978; and that a claim for mechanic’s lien was filed in the office of the recorder of deeds of Champaign County (Ill. Rev. Stat. 1979, ch. 82, par. 7) on January 16, 1979. The instant foreclosure suit was then filed on September 29,1980.

It is admitted, and the pleadings show, that neither the 90-day notice nor the claim for lien attempted to allocate the amount involved to any particular lot, but purported to be what is commonly called a “blanket” lien under a single contract.

The same thing is true of the amended complaint. In each count three lots in the same subdivision are named as the subject of the lien, but no attempt is made to allocate any particular amount of money to any one lot.

The trial court filed a memorandum which makes clear that in making its judgment of dismissal it relied almost entirely upon Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291, and Dougherty-]anssen Co. v. Danage Enterprises, Inc. (1980), 80 Ill. App. 3d 1112, 400 N.E.2d 1023.

We believe that the trial court has misconstrued Schmidt and its essential holding. If pursued to its logical extreme, the holding of the trial court would make impossible the filing of a blanket lien, which is specifically permitted by section 7 of the Mechanics’ Liens Act.

In Schmidt four properties were involved, and the contractor attempted to impose a lien upon all of them under a single contract, even though work on three of them had been completed more than four months prior to the filing of the claim. The supreme court held in the negative, saying:

“° * ” The vital question in this case is whether the legislature intended by these changes to permit such a claim to be filed against buildings erected on several different lots under one entire contract, even though the work on some of the houses had been performed and the materials for such houses were furnished more than four months before the claim for lien was filed or the suit begun to enforce the lien.” (Emphasis added.) 253 Ill. 29, 32, 97 N.E. 291, 292.

It is thus apparent that the court’s primary concern was with the four-month limitation period. The essence of its decision is that this period is not extended by the presence of a single contract covering several parcels of property. The onus still remains on the lien claimant, if he has not been paid, to take action within the limitations period. The court explained that the limitation was for the protection of third parties dealing with the property and that if this period were extended by reason of a single contract, such protection would be lost, a result obviously not intended by the legislature.

The essential holding of Schmidt, therefore, is that if a single contract covers several parcels and the work has been completed or the materials furnished on one or more of those parcels more than four months before the filing of the claim for lien or the filing of suit, then the amounts must be apportioned among the parcels remaining which are still within the four-month limitation. If no such apportionment is possible, then the entire lien will fail.

In Schmidt it was conceded that one property (the “Oak street house”) was still within the four-month period, but the court said:

«o e o \ye are therefore constrained to hold that this claim for lien cannot be enforced, even for labor performed or material furnished as to the Oak street house, because there are no data in the claim wherefrom the proper amount could be apportioned to that house.” 253 Ill. 29, 33, 97 N.E. 291, 292.

The essential holding of Schmidt is that the presence of a single, or “entire,” contract covering multiple properties will not override the four-month limitation period. The claimant in Schmidt was a contractor, as distinguished from a subcontractor, and there appears to be no reason why he could not allocate the value of labor and materials to the various locations. He chose, rather, to predicate his claim on the nature of his contract and the court held he could not pursue this theory which would nullify the four-month provisions of section 7.

A significant statement by the Schmidt court is:

“In our judgment the legislature did not intend to permit two or more buildings on two or more tracts of land to be included in one claim for lien unless the claim was filed within four months after the last labor was performed or the material furnished on each of the buildings.” 253 Ill. 29, 33, 97 N.E. 291.

The clear import of this language is that the contractor will not be permitted to stack his building sites under an entire contract and thus frustrate the beneficial effect of the four-month limitation period. He must file claims seriatim within four months after each delivery. Even though the total claim is entire, growing out of an entire contract, it must be filed and refiled as to the individual locations for the protection of the rights of third parties in those individual locations. It is, of course, possible that more than one location will be within the four-month period from time to time, especially if a large number of properties are involved. This will doubtless require much closer attention to detail than in the case of a single property under a single contract, but it is not an insuperable burden in view of the extraordinary remedy allowed to a contractor.

We do not, therefore, view Schmidt as standing for the proposition that each time multiple properties are involved, there must be apportionment in order to enforce a lien. The lien will be valid as to any properties to which labor or materials have been furnished within four months of the filing of the claim.

While Schmidt involved a prime contractor who presumably had direct knowledge of the date of labor or materials furnished to each individual location, its rationale is equally applicable to subcontractors and those furnishing materials, as in the instant case, who may not be possessed of such information. The record here simply shows that the plaintiff, a supplier of materials, delivered those materials to a job site where multiple buildings were being constructed. The materials presumably were then allocated by the prime contractor to the various lots.

The amended complaint thus made out a prima facie case sufficient to withstand a motion to dismiss which admits all well-pleaded facts. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282,402 N.E.2d 599.) It may well be that the proof will show some delivery beyond the four-month period, or even all delivery beyond such period. If so, Schmidt will apply and the lien will fail but this remains to be seen. Schmidt did not lay down a per se rule that each time multiple properties are involved, allocation is required.

The rule is an eminently sensible one. The supreme court has noted that in modern times many houses are mass-produced. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31,389 N.E.2d 1154.) As in the instant case, the supplier may well be many miles removed from the construction site where multiple dwellings are being erected and will have no means of determining how much of each load of material went into which of the several houses. He can therefore do little more than assert his lien against all the properties, but as previously pointed out, he must do so within four months of each delivery or be barred under Schmidt. Both the materialman and the purchaser of the premises are thus protected.

We do not quarrel with the holding in Dougherty-]anssen Co. which was also cited by the trial court, although we believe that some of the language used therein is too broad. The opinion indicates that the work on multiple parcels commenced in 1973 and was to be completed in seven phases. In 1975, the claimant attempted to perfect a lien against all phases, even though the first four phases had been completed and sold. The case fits exactly within the doctrine of Schmidt. A materialman cannot bootstrap himself .out of the four-month limitation period by pleading a multiple parcel-single contract case.

Other arguments have been raised with regard to the timeliness of the filings of the 90-day notice and the claims for lien, but they apparently did not enter into the trial court’s decision. We therefore decline to pass upon them at this time. The matter may be considered at trial.

The order of the circuit court of Champaign County dismissing the amended complaint is therefore reversed and the cause is remanded to that court for further proceedings in accordance with the views expressed herein.

Reversed and remanded with directions.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE JONES

text:
    AMERICAN WELDING SUPPLY CO., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Fifth District
    No. 81-200
    Opinion filed April 16, 1982.

      Robert E. Shaw, of Musick & Mitchell, P. C., of Mt. Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Karen Konieczny, Assistant Attorney General, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Jefferson County affirming an assessment of tax liability made by the Illinois Department of Revenue (Department) against American Welding Supply Company (American Welding) pursuant to the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.). On appeal American Welding contends that it was deprived of due process when the Department rendered its final tax assessment without participation by the officer who presided at the administrative hearing. Additionally, American Welding challenges certain rulings made by the Department in disallowing deductions taken by the taxpayer. We affirm in part and reverse in part.

American Welding is in the business of selling welding equipment and supplies as well as welding gases and medical grade oxygen. On November 29,1973, the Department issued a notice of tax liability against American Welding which totalled $6,091.52 for the period of July 1,1970, through June 30,1973. American Welding filed a notice of protest, and on January 21, 1974, an administrative hearing was held before hearing officer Lawrence J. Starman.

At the hearing the Department’s revenue auditor testified for the Department as to the manner in which plaintiff’s tax liability was determined. He stated that during the course of the audit he examined sales invoices, summary sheets, journal sheets and copies of both plaintiff’s Federal income tax returns and retailer’s occupation tax returns. He did not examine monthly statements or accounts receivable ledgers. The total sales as reflected in the sales invoices were compared with the taxpayer’s sales summary sheets. If an item was returned and a credit memo given, he did not include that cancelled invoice in the list of taxable ones.

Deductions taken by the taxpayer were disallowed in three principal areas: delivery charges on gas sales, certain sales for resale, and certain sales for use in installation of pollution control equipment. The auditor stated that the only justification he found for the delivery charge deductions was a letter of the taxpayer to its customers stating that after a certain date 5% of the gas price would be considered a delivery charge. The auditor found this to be insufficient to qualify under the Department’s rule that delivery charges must be separately contracted for in order to be deductible, and he accordingly disallowed the taxpayer’s deduction of 5% of the gas sales as a delivery charge.

The auditor also disallowed deductions taken by the taxpayer on certain sales for resale despite the fact that the taxpayer had obtained certificates of resale from its customers on these sales. The auditor stated that he did not accept the certificates when the items sold were delivered to a contract job site or when it was unlikely that the items would be resold due to the nature of the purchaser’s business or the nature of the items sold. One of the certificates, made by the Roberts & Schaefer Company, was disregarded because of an invalid registration number.

The auditor similarly disallowed a deduction taken for items sold for construction of a pollution control plant although the purchaser had furnished the taxpayer with a letter certifying that the plant was exempt from tax as a “pollution control facility.” The basis for the auditor’s decision was that items such as those in question — welding gas, goggles, gloves, welding helmets, lenses and their repair parts, and hand cleaner— “do not become a part of the pollution control equipment” so as to be deductible under Department rules. The auditor said that he had not seen the plant in question and did not know what parts may have been put in it but that it was the taxpayer’s burden under the applicable Department rule to prove that the goods were installed in the plant.

Following the presentation of the Department’s evidence, Joe Lawrence, president of American Welding, was called as a witness for the taxpayer. He testified that American Welding’s sales tax returns were prepared from monthly statements sent to customers rather than from sales tickets or invoices. Lawrence identified the pollution control certificate and the various resale certificates that had been introduced into evidence and stated that he had relied upon them in making the sales in question. He had been informed by representatives of each of the purchasers who provided resale certificates that they do resell merchandise. Lawrence stated that when a certificate of resale is offered, he accepts the certificate for what it says and does not investigate further.

A hearing disposition was filed on June 21, 1976, finding tax due in the amount of $5,571.56, including interest and penalties. This figure reflected an adjustment made to correct the auditor’s error of disallowing the 5% gas sales deduction twice — once as a delivery charge and again when claimed resales of gas were disallowed. The author of the hearing disposition, Willard Ice, stated that hearing officer Starman was no longer with the Department and had turned in the case file without preparing a written hearing recommendation, thereby making it necessary for Ice to write the recommendation from a review of the record. Due to the hearing officer’s delay in submitting the file to the Department, Ice recommended that interest on the amount due be waived for the interval between the hearing date and the disposition.

In his disposition Ice approved the auditor’s disallowance of deductions for 5% of the gas sales, finding that the taxpayer failed to prove the existence of a separate contract for delivery charges. He also agreed that the certificates for resale presented to the auditor did not entitle the taxpayer to resale deductions because they were blanket certificates covering all purchases by a given purchaser and the taxpayer did not show that all the purchases were for resale. Ice stated that “[e]ven if some small percentage of the sales might conceivably have been for resale, and even if this were admitted, it would still be the taxpayer’s burden to show which ones were for resale,” citing Belleville Shoe Manufacturing Co. v. Department of Revenue (1956), 7 Ill. 2d 574, 131 N.E.2d 511. Likewise, with respect to the deductions taken for sales for utilization in pollution control equipment, Ice determined that “[w]ith the possible exception of some repair parts, the types of items [sold] would rather clearly not become a part of the pollution control facility and so would not qualify for the pollution control facility exemption.” Ice stated that even if some of the repair parts might have been for the pollution control facility itself, and not, as the auditor testified, for welding equipment used in installing the facility, the taxpayer did not sustain his burden of proving this. As for the pollution control certificate obtained from the purchaser, Ice concluded that most, if not all, of the items involved could not reasonably be said to be classifiable as “pollution control facilities,” and thus the taxpayer was not justified in accepting and relying upon such a certificate.

The Department issued its final assessment on July 12, 1976, for $5,571.56, and American Welding sought administrative review. The trial court affirmed the Department’s disposition and entered judgment against the taxpayer in the total amount of $5,205.15. The record contains no explanation for the discrepancy between the amount of the judgment and that assessed by the Department.

On appeal from this judgment American Welding initially raises an issue regarding the sufficiency of the record on appeal. We have, of course, examined the entire record, and we deem the record before us sufficient to consider all the issues addressed by the parties on appeal. Accordingly, we find it unnecessary to consider American Welding’s arguments regarding the sufficiency and content of the record.

We turn, then, to a consideration of American Welding’s contention that the Department’s decision, rendered without participation by the hearing officer, constituted a denial of due process. The general rules as to the requirements of due process in proceedings before an administrative agency have been set forth by our supreme court in Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785. The court there held that, absent a statute to the contrary, due process is satisfied when the decision-making body “considers the evidence contained in the report of proceedings before the hearing officer and bases its determinations thereon. [Citations.]” (65 Ill. 2d 115, 128, 357 N.E.2d 785, 791.) Thus, the due process principle that “the one who decides must hear” does not preclude the “practicable administrative procedure” of having a hearing officer take evidence and another officer make the decision as long as the officer making the decision considers the evidence which justifies it. Morgan v. United States (1936), 298 U.S. 468, 80 L. Ed. 1288,56 S. Ct. 906.

American Welding makes no claim that the decision makers in the case at bar failed to consider the record of the proceedings before hearing officer Starman. It contends, however, that the credibility of the Department’s auditor was in question at the hearing and that in such a case due process requires that the decision-making body have the benefit of the hearing officer’s findings and impressions of the witness’ testimony. Thus, American Welding asserts, the Department’s disposition of the hearing, written from the record by Willard Ice after hearing officer Starman left the Department, was inadequate to afford the taxpayer its due process right to a full and fair hearing.

While it is generally recognized that it is better practice for an administrative tribunal which has not itself heard the evidence to base its decision on a report made by the hearing examiner (2 Am. Jur. 2d Administrative Law sec. 430 (1962); Annot., 18 A.L.R.2d 606, 626-27 (1951)), Illinois courts have not specifically held this to be a due process requirement. (See Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 303 N.E.2d 606, aff'd (1975), 60 Ill. 2d 204, 326 N.E.2d 406.) The court in Ramos v. Local Liquor Control Com. (1978), 67 Ill. App. 3d 340, 384 N.E.2d 912, while deciding the case on other grounds, acknowledged the rule set forth by the Utah Supreme Court in Crow v. Industrial Com. (1943), 104 Utah 333, 337,140 P.2d 321, 322, to the effect that

“[w]here there is a conflict in the testimony, and the weight and credibility to be given testimony of the various witnesses is the determining factor, in order to accord a ‘full hearing’ to which all litigants are entitled, the person who conducts the hearing, hears the testimony, and sees the witnesses while testifying, e ” ” must either participate in the decision, or where, at the time the decision is rendered, he has severed his connections with the board, commission or fact finding body, the record must show affirmatively that the one who finds the facts had access to the benefit of his findings, conclusions and impressions of such testimony, by either written or oral reports thereof.”

Likewise, the court in Southern Illinois Asphalt discussed the need for a hearing officer’s report when there are issues of credibility involved in an administrative ruling but expressly declined to rule on whether the failure to submit such findings of fact constitutes a denial of due process.

We agree that if the evidence before a hearing officer or examiner is in such conflict that the weight and credibility to be given the testimony of various witnesses is the determining factor, due process may require that the examiner participate in the decision by submitting a report of his conclusions and impressions. (See Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.) This, however, is not the situation in the case at bar. The taxpayer offered no testimony in the hearing before officer Starman challenging or conflicting with the auditor’s testimony as to the manner in which he prepared the corrected returns. The issues before the Department in rendering its decision did not depend upon the witnesses’ credibility at the hearing but were, rather, issues concerning the interpretation of the applicable statute and the Department’s rules and regulations. In the absence of a statutory requirement to the contrary (see Ill. Rev. Stat. 1979, ch. 120, par. 447), the determination of these issues could properly be made upon a review of the record (Homefinders) where, as here, the hearing officer left the Department’s employ before submitting a recommended disposition. Accordingly, we find no merit in American Welding’s due process argument.

American Welding next challenges rulings made by the Department in disallowing deductions taken by it for delivery charges on gas sales, sales for resale, and sales of pollution control equipment. It asserts, preliminarily, that the Department failed to make a prima facie case against it as to the amount of tax due.

Under section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 443), a corrected return of the Department “shall be prima facie evidence of the correctness of the amount of tax due” so long as the return is corrected according to the “best judgment and information” of the Department. This requirement is satisfied and the Department’s prima facie case established when evidence is presented to show that the corrected return was prepared in a “reasonable” manner. (Masini v. Department of Revenue (1978), 60 Ill. App. 3d 11, 376 N.E.2d 324.) While not required to do so by statute, the Department here produced the auditor who testified that he examined the taxpayer’s sales invoices, sales summary sheets and copies of the taxpayer’s past returns. The auditor also gave reasons supporting his disallowance of the deductions at issue in this appeal. Although the taxpayer’s president stated that he had prepared its returns by referring to monthly statements rather than sales invoices, there is no indication that the auditor’s method of computing sales was less accurate, considering that he did not include invoices for which credit memos had beén given. We find, therefore, that the Department properly demonstrated that its corrected returns were prepared in a reasonable manner, entitling these returns to a presumption of validity.

The Department having established its prima facie case, the burden was on the taxpayer to overcome this presumption of validity by producing competent evidence to show that the Department’s returns were incorrect. (Masini.) In preparing the audit returns, the auditor taxed 5% of gas sales which the taxpayer had deducted as delivery charges because he found that the taxpayer had failed to sustain its burden of showing that these charges were not part of the selling price of the gas. (See Ill. Rev. Stat. 1979, ch. 120, par. 446, which provides that all sales of tangible personal property are presumed to be subject to tax unless the taxpayer proves otherwise.) Under the pertinent statute, “selling price” is to be determined “without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever 9 9 9.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 440.) The Department has provided by regulation, however, that transportation and delivery charges are not included in the selling price so long as the seller and the buyer

“agree upon the 9 9 9 charges separately from the selling price of the tangible personal property which is sold[. T]hen the cost of the transportation or delivery service is not a part of the ‘selling price’ of the tangible personal property which is sold, but instead is a service charge, separately contracted for, and need not be included in the figure upon which the seller computes his retailers’ occupation tax liability.” (Art. 3, par. 4a, of the Rules and Regula,tions of the Illinois Department of Revenue.)

At the hearing the auditor testified that there was no separate breakdown of any delivery charges on the invoices which he examined and that the only justification in the taxpayer’s records for the delivery charge deduction was a “letter supposedly sent to [its customers] saying effective on a certain date 5% of the gas charge would be considered a delivery charge.” Although the taxpayer, in this appeal, asserts that the auditor erred in determining that this letter did not constitute a contract, it failed to produce any evidence at the hearing to support its claim that the delivery charges were separately contracted for and therefore deductible. Neither the letter referred to by the auditor nor any of the taxpayer’s invoices or statements concerning gas sales were introduced at the hearing. The taxpayer’s bare assertion that the Department erred, without competent evidence to support its position, is insufficient to overcome the Department’s prima facie case, as “[s]imply questioning the [Department’s] return or denying its accuracy does not shift the burden to the [Department].” (Quincy Trading Post, Inc. v. Department of Revenue (1973), 12 Ill. App. 3d 725, 730-31, 298 N.E.2d 789, 793.) Thus, we find no error in the Department’s disallowance of the delivery charge deductions.

The Department also disallowed deductions for certain sales for resale, in spite of the certificates of resale furnished to the taxpayer by the purchasers. The certification procedure for sales for resale is provided for by statute. Under section 1 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440),

“ ‘Sale at retail’ shall be construed 9 9 9 to include any transfer ° ° ° for resale in any form as tangible personal property unless made in compliance with Section 2c of this Act.” (Emphasis added.)

Section 2c of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 441c) provides:

“[Njo sale shall be made tax-free on the ground of being a sale for resale unless the purchaser has an active registration number or resale number from the Department and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.”

American Welding contends that, under the statute, compliance with section 2c is sufficient to entitle it to a deduction for sales for resale and that it is not required to prove also that the sales were not for use or consumption. We agree.

The Department based its disallowance of deductions for sales for resale on article 13, paragraph 2, of its rules and regulations, which it interpreted as placing the burden on the taxpayer to show that the sale was indeed for resale. This regulation states in pertinent part:

“A Certificate of Resale is a statement signed by the purchaser that the property purchased by him is purchased for purposes of resale. Provided that this statement is correct, the Department will accept Certificates of Resale as prima facie proof that sales covered thereby were made for resale.” (Emphasis added.)

The auditor disallowed claimed sales for resale because they “were of a type which, when sold to the kinds of purchasers involved, would almost have to be for use and not for resale.” Further, the author of the hearing disposition cited article 13, paragraph 5, of the Department’s rules and regulations, which provides that

“[t]he seller should not take a blanket Certificate of Resale, covering all of his sales to such purchaser if such purchaser makes some of his purchases of tangible personal property from such seller ‘for use or consumption,’ ”

and disallowed the resale deductions because

“[a] 11 Certificates of Resale which the taxpayer had from these purchasers were blanket certificates 600 and the taxpayer did not even pretend to testify that all of the purchases would be for resale.”

We do not agree that the taxpayer, after obtaining certificates of resale from its purchasers, had the additional burden of proving that these sales were indeed for resale. To say that paragraph 2, article 13, of the Department’s rules places such a burden on the taxpayer is contrary to the statute and to the rule itself, which provides that the resale certificate shall be prima facie proof that the sales covered by the certificate were made for resale. (Rock Island Tobacco & Specialty Co. v. Department of Rev enue (1980), 87 Ill. App. 3d 476,409 N.E.2d 136.) The court in Rock Island Tobacco & Specialty Co., in dealing with a similar situation, stated:

“To permit an auditor to disallow the certificates without any evidence at all that the merchandise was not sold for resale is to render the presumption void of any effect. If the Department is to follow its rules, auditors cannot be permitted to disallow a proper certificate of resale when there is no evidence to show the merchandise sold was not for resale.”. 87 Ill. App. 3d 476, 479, 409 N.E.2d 136, 139.

As in Rock Island Tobacco & Specialty Co., the Department here has produced no evidence that the goods covered by the resale certificates were not for resale. In addition, the taxpayer’s president testified at the hearing that the purchases were represented by the buyer to be for resale and that he relied on these representations. We find this to be sufficient compliance with the Department’s rule as to the blanket resale certificates (article 13, paragraph 5) to constitute prima facie proof of their correctness. (See Stam Manufacturing Co. v. Department of Revenue (1976), 39 Ill. App. 3d 753, 350 N.E.2d 259.) The effect of producing these certificates at the hearing was to shift the burden of proof from the taxpayer to the Department. The Department did, however, rebut the correctness of the resale certificate obtained from the Roberts & Schaefer Company, as the auditor testified that its registration number was invalid and this was not disputed by the taxpayer. Thus, we find that the Department’s disallowance of deductions for sales for resale was improper except as to sales for resale to Roberts & Schaefer Company.

Similarly, we find that the Department improperly disregarded the effect of the pollution control certificate obtained by the taxpayer in disallowing deductions for sales of pollution control equipment. Section la of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440a) provides that the purchase, employment and transfer of tangible personal property as “pollution control facilities” is not subject to taxation under the Act. The statute broadly defines “pollution control facilities” as

“any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution * * * or for the primary purpose of treating, pretreating, modifying or disposing of any potential * * ° pollutant 0 *

The Department has provided by rule that

“[t]his exemption includes not only the pollution control equipment itself, but also replacement parts therefor, but does not extend to chemicals used in any such equipment * * * nor to any other tangible personal property which may be used in some way in connection with such equipment, but which is not made a physical component part of the equipment itself.” (Art. 2, par. 6 of the Rules and Regulations of the Illinois Department of Revenue.)

The Department has further provided for a certification procedure:

“If the purchaser or his contractor-installer buys an item that could reasonably qualify for exemption as a pollution control facility for use as a pollution control facility, the purchaser or his contractor-installer should certify this intended use of the item to the seller in order to relieve the seller of the duty of collecting and remitting the tax on the sale, but the purchaser who is buying the item in question allegedly for his use as a pollution control facility will be held liable for the tax by the Department if it is found that such purchaser does not use the item as a pollution control facility.” Art. 2, par. 6, of the Rules and Regulations of the Illinois Department of Revenue.

Despite the certificate obtained from the purchaser in this case, the Department disallowed the taxpayer’s deductions for sales of items purchased for construction of a pollution control plant, finding that the items involved (welding gases, goggles, gloves, repair parts, for example) would clearly not become a part of a pollution control facility so as to qualify for the exemption. We note in passing that the statutory language is extremely broad and in no way limits the exemption to items which “become a physical component part of the equipment itself.” While the instant rule is entitled to some respect as an administrative interpretation of the statute, it is not binding on the courts and cannot be allowed to limit or extend the scope of the statute. (Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197.) Further, to limit the exemption to sales of component parts of a pollution control facility, while not exempting sales of tangible personal property used in constructing the facility, may give rise to constitutional objections of unequal classification for taxation purposes. We need not decide these issues, however, as we find that the certification procedure designed by the Department to give effect to the statutory exemption places the burden of proving the use of items allegedly purchased as pollution control facilities on the purchaser-installer rather than on the seller. (Cf. Du-Mont Ventilating Co. and Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 346 N.E.2d 69, where the issue was whether the purchasers of so-called pollution control equipment had sustained their burden of proof.) In this way it relieves the seller of what would otherwise be an impractical, if not impossible, obligation to determine the use to which its products are put after they are sold.

In the instant case the pollution control certificate produced by the taxpayer at the hearing was sufficient to rebut the Department’s prima facie case, and, as the Department offered no evidence to show that the taxpayer was not entitled to rely upon the certificate, the Department erred in disallowing the deductions taken by the taxpayer for sales of pollution control equipment.

In accord with our holdings herein, we reverse that portion of the trial court’s judgment which affirmed the Department’s disallowance of deductions for sales for resale and sales of pollution control equipment and affirm the remainder of the trial court’s judgment. We further remand this case to the Illinois Department of Revenue to make an appropriate determination of the amount of tax due. See Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511.

Affirmed in part; reversed in part.

KASSERMAN and HARRISON, JJ., concur.


text:
    SHERRY HOGAN, by Jerry Hogan, her Father and Next Friend, Plaintiff-Appellant, v. BETTY HOGAN, Defendant-Appellee.
    Fifth District
    No. 81-330
    Opinion filed April 16,1982.
    • Kathryn P. Taylor, of Law Offices of William W. Schooley, of Granite City, for appellant.
    Burton C. Bernard and Don A. Shaffer, both of Bernard, Davidson and Kaseberg, of Granite City, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Sherry Hogan, an unemancipated minor child, was injured on her way home from a piano lesson while riding as a passenger in an automobile operated by defendant, her natural mother, Betty Hogan. By her natural father and next best friend, Jerry Hogan, plaintiff brought suit against defendant, alleging negligence and seeking damages “in the sum of Ten Thousand Dollars ($10,000.00) and only to the limits of the policy of liability insurance with Madison County Mutual Insurance Company and costs of suit.” In its order dismissing plaintiff’s amended complaint the trial court stated,

“From an examination of the Amended Complaint it is clear that the accident occurred when Defendant was driving herself home from work and in the process giving plaintiff a ride home from piano lessons. The Court feels that in so doing, Defendant was operating the motor vehicle to accomplish a family purpose and is therefore immune from suit by Plaintiff.”

Plaintiff appeals raising two issues: (1) “[w]hether the ‘family purpose’ exception to the parental immunity doctrine in Illinois applies in automobile cases based on negligence” and (2) “[w]hether the ‘family purpose’ exception to the parental immunity doctrine in Illinois was met in this case.”

In Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 241 N.E.2d 12, a father brought suit against his 17-year-old unemancipated daughter for injuries he suffered as a pedestrian on the streets of Bloomington in consequence of her negligent operation of an automobile. Reciting the public policy that undergirds the doctrine of parental immunity, that is, the preservation of “the peace, harmony, tranquility, discipline, cooperation, love and respect essential to good family relationship” (100 Ill. App. 2d 199,203,241 N.E.2d 12,13), the court declared the determinative issue in Schenk “narrowed to the question as to whether or not in a parent-child relationship the immunity rule should bar recovery for [negligent] conduct wholly unrelated to the objectives or purposes of the family itself” (100 Ill. App. 2d 199, 204, 241 N.E.2d 12, 14). Concluding that it should not, the court stated that “[t]he facts here charged occurred during the exercise by both the father and the child of his individual rights on the public streets and with no direct connection with the family relationship” (100 Ill. App. 2d 199, 206, 241 N.E.2d 12, 15), and determined that the complaint stated a good cause of action for tortious conduct having no direct family relationship. Refusing to repudiate the doctrine of parental immunity in all situations, the court said:

“We therefore conclude that there are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes and objectives in those cases where it may be said that the carelessness, inadvertence or negligence is but the product of the hazards incident to . interfamily living and common to every family. In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation. To hold otherwise is to inject into the courts a judicial supervision over everyday family conduct of parent and child, and invite endless litigation over what is or is not ordinary negligence in the operation of a household. The assumption of the rule of paterfamilias by either the courts or State, except under the most compelling circumstances, is foreign to our way of life.” 100 Ill. App. 2d 199, 206, 241 N.E.2d 12,15.

In the subsequent case of Cummings v. Jackson (1978), 57 Ill. App. 3d 68, 372 N.E.2d 1127, the guardian of a minor child brought suit on her behalf against her mother for negligence in failing to trim trees between the defendant’s nearest property line and the edge of the street. The trees allegedly obstructed the view of the driver of an automobile that hit the child. The court found the mother’s duty to trim the trees one owed primarily to the general public and only incidentally to the members of the family living in the house together. Relying upon Schenk, the court “conclude[d] that the injury to [the child] was not alleged to arise out of the family relationship” (57 Ill. App. 3d 68, 70, 372 N.E.2d 1127, 1128), and ruled the dismissal of the pertinent count of the complaint to have been error.

In the more recent case of Illinois National Bank & Trust Co. v. Turner (1980), 83 Ill. App. 3d 234, 403 N.E.2d 1256, the guardian of a minor child brought suit on the child’s behalf alleging personal injury caused by the negligence of the child’s father, the defendant, in the operation of a motor vehicle. The court concluded that “a complaint should be judged sufficient or insufficient at law based on what it does allege and not on what it does not allege as was the case in Schenk and Cummings” (83 Ill. App. 3d 234,237,403 N.E.2d 1256,1259), and that the plaintiff has a duty to include in the complaint an affirmative allegation, supported by specific facts, that the injury arose as a result of negligence in connection with an activity outside the family relationship.

In another recent case, Eisele v. Tenuta (1980), 83 Ill. App. 3d 799, 404 N.E.2d 349, the plaintiff had been injured while a passenger in a motor vehicle driven by the defendant, her unemancipated 16-year-old son, while in Wisconsin on a trip undertaken for the purpose of allowing the defendant to decide whether he wished to attend the University of Wisconsin. Citing Schenk, the court stated, “The family immunity doctrine bars actions for negligence between parent and child only when the conduct arises out of the family relationship and is directly connected with the family purposes and objectives.” (83 Ill. App. 3d 799, 801, 404 N.E.2d 349, 351.) The court concluded the trial court had correctly determined, as a matter of law, that the trip involved a family purpose:

“Even though the mother would allegedly play no part in the decision-making process, we believe a family outing of this nature arises out of the family relationship and is directly connected with family purposes and objectives.” (83 Ill. App. 3d 799, 802, 404 N.E.2d 349, 352.)

Plaintiff asks us to distinguish Eisele from the case at bar, which we are unable to do. We agree with the trial court that defendant was operating the motor vehicle to accomplish a family purpose and that she is, therefore, immune from suit by plaintiff.

Plaintiff cites numerous cases from foreign jurisdictions permitting actions by a child against a parent for negligence. Many such cases have considered the existence of liability insurance a reason for permitting such actions, particularly where the negligent conduct arose out of the operation of a motor vehicle. However, in Schenk the court said, “Neither do we think that the existence or nonexistence of protective insurance is a sound basis for the determination of liability. It is at best an illogical expression of disenchantment with the immunity rule and a baseless escape valve for a refusal to impose that rule.” (Schenk v. Schenk (1968), 100 Ill. App. 2d 199, 205, 241 N.E.2d 12, 14.) Although the law of certain jurisdictions does permit such suits (see Annot., 41 A.L.R.3d 904 (1972)), the law of Illinois does not, a situation the Supreme Court of Illinois may, of course, see fit to alter.

Affirmed.

KASSERMAN and HARRISON, JJ„ concur.


author: PRESIDING JUSTICE KARNS

text:
    FRANK BASDEN et al., Plaintiffs-Appellants, v. FRED FINCK et al., Defendants-Appellees.
    Fifth District
    No. 81-188
    Opinion filed April 27,1982.
    Gail R. Gisy, of Suddes, Davis & Wittman, P. C., of Jerseyville, for appellants.
    Ronald C. Mottaz and Linda L. Zazove, both of Thomas, Mottaz & Eastman, of Alton, for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiffs, Frank Basden and Louise Basden, brought an action for specific performance of a contract for the sale of real estate and for punitive damages against defendants, Fred Finck and Clarice Finck, in the circuit court of Madison County. Defendants filed a motion to dismiss, and the trial court granted the motion, finding that the contract was not capable of being specifically performed. Plaintiffs filed a post-trial motion under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3) requesting that the trial court set aside and vacate the dismissal order or, in the alternative, grant leave of court to allow plaintiffs to file an amended complaint. The trial court denied the motion and this appeal ensued.

On May 5, 1979, plaintiffs filed a complaint seeking specific performance of an alleged contract for the sale of a parcel of real estate. The complaint alleges that on or about October 7,1975, the parties executed a written contract for the purchase and sale of certain real estate owned by the defendants. Appended to the complaint was a copy of the sales contract. The contract recited the total consideration of $15,260 with $500 to be held as earnest money to be applied toward the purchase of property “known as Lot 23 Delhi Farms” situated in Jersey County, Illinois. The contract further described the parcel as follows:

“This sale to include the west portion of Lot 24 containing lake property lines to be established by mutual consent and survey between buyer and seller. This contract subject to the same conditions as contract offers on Lots 21 & 22.”

The contract provided that the balance would become due upon delivery of warranty deed. Also appended to the complaint was the sales contract for Lots 21 and 22. This contract was made on the express conditions that plaintiff sell his house and secure financing for the purchase.

On April 9, 1979, defendants filed a motion to dismiss on the ground that the contract was not capable of being specifically performed in that it was unclear, uncertain and indefinite in terms of the property to be conveyed and that the contract was incomplete because it required further negotiations or agreements. Defendants further asserted that the contract for warranty deed, referred to in the sales contract, was never entered into by the parties. On November 21, 1980, arguments were had and the trial court entered an order requesting the parties to submit briefs. Defendants filed a brief in support of the motion but plaintiffs did not. On January 29, 1981, the trial court entered an order dismissing the cause for the following reasons:

“1) that the parties did not enter into the contract for deed referred to in the sales contract.
2) that the contract in question is vague and indefinite as to the description of the real estate to be conveyed.
3) that said contract was not complete as to its terms and would require further agreements between the parties.
4) that said contract is not capable of being specifically performed.”

On February 25, 1981, plaintiffs filed a post-trial motion requesting the trial court to set aside and vacate the above order or, in the alternative, to grant leave to allow plaintiffs to file an amended complaint. Attached to the motion was a survey of Lot 23 and portions of Lots 24 and 25. In their brief in support of the section 68.3 motion, plaintiffs argue that the elements necessary for specific performance are present in the instant case. Specifically, plaintiffs argue that the parties had the attached boundary survey conducted which sets forth and identifies the property in question in detail. It is apparent that plaintiffs also argued that because the $500 down payment had been made and plaintiffs had taken possession of the property, that they had partly performed and therefore the contract could be specifically enforced. On April 9, 1981, the trial court entered an order denying plaintiffs’ motion. From that order, plaintiffs take this appeal.

We note at the outset that in their section 68.3 motion, plaintiffs requested the trial court to grant leave to amend the complaint. A motion for leave to amend a pleading is not a proper post-judgment motion. (People ex rel. Endicott v. Huddleston (1975), 34 Ill. App. 3d 799, 340 N.E.2d 662.) After judgment, a pleading may be amended only to conform the pleadings to the proofs. (Fultz v. Haugan (1971), 49 Ill. 2d 131,305 N.E.2d 873; Ill. Rev. Stat. 1979, ch. 110, par. 46(3).) In the instant case, the dismissal of the cause of action was a final order disposing of the case and, therefore, the request for leave to amend in plaintiffs’ section 68.3 motion was not proper post-judgment relief and was correctly denied.

While the parties raise additional issues, it is apparent that the primary dispute in this litigation involves the description of the parcel of real estate which is the subject matter of the contract for sale. Plaintiffs argue that the description of the parcel is definite and certain and thus, capable of being specifically performed. Defendants contend that the description is insufficient in that it is vague, indefinite, patently ambiguous, and subject to further negotiations.

A contract for the sale of land must definitely point out the particular land to be conveyed or must furnish the means of identifying it with reasonable certainty before a court will order specific performance. (Daytona Gables Development Co. v. Glen Flora Investment Co. (1931), 345 Ill. 371,178 N.E. 107.) A description of land is sufficient if it furnishes the means of identifying the land with such certainty that a surveyor, by the aid of extrinsic evidence, can locate the property. (Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512.) It is undisputed that the property to be conveyed is Lot 23 and a portion of Lot 24. The disputed part of the description is that the portion of Lot 24 to be included contains “lake property lines to be established by mutual consent and survey.” Defendants argue that the requirement of “mutual consent” renders the description uncertain and indefinite and thus incapable of being specifically performed. We agree.

The parties had a survey conducted of the relevant property, and this was attached to plaintiffs’ section 68.3 motion. While we have some doubt as to the propriety of attaching the survey to the motion inasmuch as it was discoverable prior to dismissal by the exercise of ordinary diligence (see People v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 213 N.E.2d 507), we note that even with the aid of the survey, the contract still requires “mutual consent” in order to fix the boundary line and it is undisputed that no agreement has been reached. This renders the description of the land insufficient because even a surveyor, with the aid of extrinsic evidence, would be unable to locate the property constituting the subject matter of the contract. The boundary line and thus the extent of the property to be conveyed can only be established by the “mutual consent” of the parties.

Plaintiffs also assert that the only dispute in the instant case involves that part of the real estate located on Lot 24 and, therefore, specific performance is available as to Lot 23. Plaintiffs cite Work v. Welsh (1896), 160 Ill. 468,43 N.E. 719, for the proposition that a court of equity will not deny all relief under a bill for specific performance where a part of the land agreed to be conveyed can be located and identified by proper description. It is interesting to note that in Work, specific performance was granted as to that portion of the real estate upon which improvements had been made by the purchaser. Our research reveals that the proposition, as cited in Work, has been applied to cases of joint tenancies between husband and wife where only one had signed the contract (Ennis v. Johnson (1954), 3 Ill. 2d 383, 121 N.E.2d 480) and where the seller did not own the entire parcel which constituted the subject matter of the agreement (Moore v. Gariglietti (1907), 228 Ill. 143, 81 N.E. 826). However, we have found no Illinois case which involved the application of this rule under facts similar to those presented in the instant case.

The remedy of specific performance rests within the sound discretion of the trial court and is to be determined from all surrounding facts and circumstances of the individual case. (Fitzpatrick v. Allied Contracting Co. (1962), 24 Ill. 2d 448,182 N.E.2d 183; Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512.) The granting or denial of a section 68.3 motion is also a discretionary matter. (Freeman v. Augustine’s Inc. (1977), 46 Ill. App. 3d 230, 360 N.E.2d 1245.) We note that in the instant case, plaintiffs did not request such relief in their complaint as is now urged on appeal. In light of the foregoing, we cannot find that the trial court abused its discretion in denying plaintiffs’ motion to set aside and vacate its order dismissing plaintiffs’ cause of action. The judgment of the Circuit Court of Madison County is, accordingly, affirmed.

Affirmed.

WELCH and HARRISON, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ELIZABETH WORLOW, Defendant-Appellee.
    Fifth District
    No. 81-400
    Opinion filed April 29,1982.

      Robert W. Matoush, State’s Attorney, of Salem (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy F. Blue and Richard J. Bennett, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

An information filed July 13, 1981, charged defendant Elizabeth Worlow with unlawful possession of cannabis (Ill. Rev. Stat. 1979, ch. 56M, par. 704(c)). Her motion to suppress evidence of the contraband found in her purse was granted at a hearing conducted August 3, 1981. It is from this order that the State now appeals. We reverse.

The following facts were testified to by the witnesses. On the evening of June 6, 1981, defendant was a passenger in an automobile driven by Michael Jamison. Officer Ealy stopped the Jamison vehicle when it ran a red light. While in the squad car questioning the driver about the traffic violation, Officer Ealy detected a strong odor of alcohol and asked whether the driver had liquor in his automobile. Although Jamison denied having alcohol, Ealy decided to investigate further. The officer testified that he was prompted to do so by the strong odor emanating from the driver and because furtive movements on the passenger side of the car had alerted him to the possibility that the defendant might be attempting to hide something under her seat. He left the squad car, went to Miss Worlow’s side of the car, and asked if she had any alcoholic beverage containers. Miss Worlow replied that she did not. At that time, Ealy noticed that there was also a strong odor of alcohol inside the car. He repeated his question and again received a denial. After a cursory inspection of the passenger area, including the floorboard, the police officer saw liquid leaking from Miss Worlow’s purse. He also noted that the floor beneath her purse was wet. Touching the outside of the purse, he felt the bulge of glass containers. When he requested that she hand him the bottles, she moved the purse from the floor and placed it on the seat to her left. She then unzipped the purse and handed him two opened beer bottles. Officer Ealy stated that she tried to hold her hand over the top of the purse in an apparent attempt to block his view of its interior, but that, in spite of her efforts to conceal the contents, he saw, in plain view, a purple bag and a clear plastic bag which apparently contained marijuana. (Miss Worlow, however, testified that the plastic bags were not in plain view and that he could not have seen inside her purse from where he stood.) Defendant refused the policeman’s request to turn over her purse, but then relented after being informed that he had authority to search it. His inspection confirmed the presence of cannabis. She then accompanied Ealy to headquarters, where a formal complaint was filed.

First, in an effort to define the issues, we will address a waiver argument raised by the defendant in her brief. It is defendant’s position that all arguments except the “plain view” argument have been waived on appeal because they were not raised at the hearing. We examined the transcript of the hearing and found that although defendant emphasized the plain view issue in her discussion, the State devoted much of its argument to justifying the search on probable-cause grounds. Since the issue of probable cause was sufficiently argued at the hearing to suppress, we hold that it was not waived and therefore the record is adequate for this court to consider it on review.

Defendant also charges that the trial judge’s decision to suppress the evidence must be read as an implicit finding that Officer Ealy had no “plain view” of the interior of her purse. After discussing the conflicting testimony of Officer Ealy and Miss Worlow, the judge stated:

“Once the beer bottles were surrendered, that should have ended the matter. The search of the rest of the purse under these circumstances I don’t believe was justified and exceeded any permissible scope under a search under these circumstances,

It is impossible to tell, after examining the court’s order, whether the judge based his decision to suppress the evidence on a finding that the contraband was not in plain view, or on a finding that there was not probable cause to justify a search and seizure of the contraband. We read the judge’s statement simply as a finding that the search exceeded its lawful scope. Construing the order in this broad fashion, we hold that it was manifestly erroneous, Le., that the arresting officer had probable cause to search the defendant and the area immediately surrounding the defendant, including her purse. Because of our resolution of the probable-cause issue, it is unnecessary to determine whether the contraband was in plain view.

The reasonableness of a search must be judged upon the particular facts and circumstances surrounding the search. In order to decide if the arresting officer had probable cause to conduct a search, the crucial question is whether the facts available to the officer at the moment of the stop would have caused a reasonable man to proceed in the same manner. (People v. Watts (1981), 93 Ill. App. 3d 420, 424-25, 417 N.E.2d 247.) To justify a full warrantless search following a mere traffic violation, the circumstances must show that a more serious crime was being committed. (People v. Smith (1978), 67 Ill. App. 3d 952, 959-60, 385 N.E.2d 707.) If this can be determined, common sense dictates a finding that probable cause existed. People v. Sokolow (1981), 97 Ill. App. 3d 1109, 1112, 424 N.E.2d 36.

On appeal and at the hearing on the motion to suppress, the State maintained that the warrantless search of the automobile in which defendant rode was reasonable under the circumstances. We agree. Officer Ealy’s detection of the smell of alcohol on the driver provided initial grounds for him to believe that a crime more serious than a traffic offense had occurred. The passenger’s suspicious movements lent additional support for this conclusion. The strong odor of alcohol inside the car and the liquid leaking from containers in defendant’s purse constituted further grounds upon which to base a warrantless, on-the-scene search of the passenger compartment of the automobile. Thus, we conclude that there was probable cause to conduct a search.

Defendant argues that she had a reasonable expectation of privacy in the items contained in her purse. She contends that Ealy infringed upon this expectation by touching the outside of her purse to ascertain its contents and then by ordering her to hand him the beer bottles. She concludes that the officer’s reaching into her purse for the marijuana further exceeded the scope of the original unlawful intrusion and, thus, the evidence which he seized amounted to fruits of the poisonous tree.

Having already determined that the search engaged in by Officer Ealy was lawful, we need only decide whether the scope of that search extended to include Miss Worlow’s purse. The recent case, New York v. Belton (1981),_U.S__,_, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864, settles this matter. In Belton, a warrantless search of the passenger compartment of defendant’s automobile and the subsequent confiscation of marijuana found in a jacket lying on the back seat of the car was determined to be valid, in spite of the “expectation of privacy” arguments raised by defendant. The court relied on the reasoning in Chimel v. California that the search occurred in an area immediately accessible to the defendant, i.e. “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” (Chimel v. California (1969), 395 U.S. 752, 763,23 L. Ed. 2d 685, 694,89 S. Ct. 2034,2040.) The authority to search the defendant and the area within his immediate control was based upon the need to disarm him and the need to discover evidence which he might destroy. Thus, the justification for the search was not that the defendant had no privacy interest in the item to be searched (the pockets of his jacket), but rather that the lawful custodial arrest justified the infringement of any privacy interest the defendant may have had. New York v. Belton (1981),_U.S__,_, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864.

The Supreme Court’s analysis in Belton may be applied to this case. Although one could argue, as Miss Worlow does, that she had a reasonable expectation of privacy in her purse, this is outweighed by the fact that the purse was within the area over which she had access and control. It was positioned just to her left, on the front seat of the car. It was reasonable for Officer Ealy to presume that, by the time he obtained a warrant to search the purse, she would have managed to hide or destroy the evidence contained therein. She had already attempted, by covert actions and by blatant denials, to prevent his discovering the beer bottles. She also tried unsuccessfully to prevent his discovery of the marijuana. Under these circumstances, he acted prudently in confiscating the purse and its contents.

The defendant challenges this conclusion on the grounds that the rule expressed in Chimel and Belton (that a warrantless search of the immediately surrounding area is justified when it occurs incident to a lawful custodial arrest) does not apply to her situation because she had not been arrested when Officer Ealy searched her purse.

It is true that the warrantless search of defendant’s purse must have occurred within the context of an arrest. The appellate court recently rejected an application of Belton and excluded evidence of contraband seized from a wooden box on a car’s front seat because “no argument was made that the containers were opened and searched incidental to a lawful custodial arrest.” People v. Smith (1982), 103 Ill. App. 3d 430, 433, 431 N.E.2d 699, 701.

However, in this case, the seizure of contraband was made during the course of an arrest. As the State argued, a reasonable person in defendant’s position would have considered herself under arrest as soon as the officer received the opened beer bottles into his possession. (See People v. Reynolds (1981), 101 Ill. App. 3d 576,578,428 N.E.2d 694,696.) It was clear that she was not free to leave the scene and that, had she attempted to do so, she would have been restrained. (See People v. McMahon (1980), 83 Ill. App. 3d 137, 143, 403 N.E.2d 781.) Thus, no formal declaration of arrest was necessary. See People v. Brown (1980), 81 Ill. App. 3d 271, 274,401 N.E.2d 310.

We therefore disagree with the trial judge’s statement that “once the beer bottles were surrendered, that should have ended the matter.” Given the circumstances facing Ealy at this moment, we find that he had probable cause to conduct a warrantless search of the entire passenger compartment of the car to uncover weapons or further contraband. Further, we hold that the scope of this lawful search extended to Miss Worlow’s purse because the purse was within the passenger compartment and subject to her immediate access and control. Accordingly, the court’s suppression order is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

JONES and WELCH, JJ., concur.