author: Mr. JUSTICE SEIDENFELD

text:
      In re Application of County Collector of Lake County—(Knoll Development Company, Appellee, v. The John Allan Company, Appellant.)
    (No. 72-82;
    Second District
    June 1, 1973.

      Allan L. Rlair, of Chicago, for appellant.
    Kermit Neuman, of Coldwater, Ohio, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Knoll Development Company petitioned for an order directing the issuance of a tax deed based upon the purchase of delinquent real estate taxes at a 1968 tax sale. Notice was served on the owner on July 26, 1971, and published beginning on July 23, 1971. The John Allan Company, in whose name the property was last assessed, filed a “redemption under protest” pursuant to section 253 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 734), stating as the reason for the protest that the petitioner failed to serve notice in the form prescribed by sections 263 and 266 of the Act. (Ill. Rev. Stat. 1971, ch. 120, pars. 744, 747.) Subsequently, on the date set for hearing on the petition for tax deed, the assessee John Allan Company petitioned the court to enter an order denying the tax deed, and refunding to the John Allan Company as assessee the $602.93 which was paid in redemption under protest, because of the failure of the tax buyer to give proper notices. The court found that the notice complied with the statute in effect prior to July 1, 1971, but was defective under the statute as amended, effective July 1, 1971. However, finding that the purchaser had attempted to comply with the law as he understood it, the court ordered the redemption money paid over to the tax deed petitioner. The John Allan Company appeals from this order.

On appeal, we must determine whether the notice was in fact defective and, if so, whether the trial court exceeded its authority in nevertheless ordering the redemption money paid to the petitioner.

Knoll contends that it succeeded to a vested right to serve notice under the law as it existed prior to July 1, 1971, by reason of its purchase of the certificate at the 1968 tax sale. Its reliance on Hogan v. Bleeker (1963), 29 Ill.2d 181, is misplaced. In Hogan, the court refused to give retroactive effect to a statutory amendment requiring institution of a suit to foreclose a special assessment lien within five years from the date of the sale and assignment. Tire amendment was passed more than five years after the sale in question, and prior to the amendment the statute allowed the bringing of a foreclosure suit “at any time”. Tire court pointed out that the special assessment liens involved were marketable assets which plaintiffs could have sold for value and against the foreclosure of which there was no valid defense before the amendments, (page 190) However, a purchaser of delinquent taxes at a tax sale does not, by his purchase, acquire the same kind of marketable asset. Additionally, the application of the subsequently enacted statute of limitations in Hogan would, by its application, completely destroy the rights of the holder of the special assessment lien. Here, the change in notice requirements does not extend to destruction of an existing cause of action nor does it create a new liability for past events. The July 1st amendment changing the form of the notice therefore does not offend the Federal Constitution. (See Cohen v. Beneficial Industrial Loan Corp. (1949), 337 U.S. 541, 554.) Nor is the law of Illinois violated. The amendment of section 263 merely changed the procedure to be followed before a tax deed would issue, and contained no savings clause. There is no vested right in any particular remedy or method of procedure in the absence of such a clause. See Ogdon v. Gianakos (1953), 415 Ill. 591, 597. See also Nelson v. Miller (1957), 11 Ill.2d 378, 382—3; Orlicki v. McCarthy (1954), 4 Ill.2d 342, 345—8, 354.

Knoll has also contended that the amendment of section 263 of the Revenue Act which was adopted on June 29, 1971, should not be applied as it was not yet in publication when the notice was sent and Knoll had no means of knowing about it. This, however, is no excuse. There is no provision in either the 1870 or 1970 Constitution that an act cannot take effect until it is published. (Ill. Const. 1870, art. IV, sec. 13; Ill. Const. 1970, art. IV, sec. 10.) In the absence of such a provision the law needs no promulgation to take effect.

Under art. IV, sec. 10 of the Illinois Constitution of 1970 which became effective on July 1, 1971, the General Assembly was charged with providing by law for a uniform effective date for laws passed prior to July 1st of the calendar year. On July 2, 1971, Ill. Rev. Stat. 1971, ch. 131, par. 21 became effective, and provided:

“A law passed prior to July 1 of a calendar year and after June 30, 1971, shall become effective on October 1 following its becoming a law unless by its terms it specifically provides for a different effective date. A law passed prior to July 1, 1971, shall become effective on July 1, 1971, or upon its becoming a law, whichever is later, unless such law by its terms specifically provides for a different effective date.” (Emphasis added.)

Although the fact that a law takes effect immediately or, as here, in two days, undoubtedly creates some hardship, the decision of whether this hardship should be imposed rests wholly in the discretion of the law making body. The hardship created by the almost immediate effect given to the amendment does not render it invalid as an arbitrary or unreasonable exercise of power by the legislature. (Jacob Ruppert, Inc. v. Caffey (1920), 251 U.S. 264, 302, 64 L.Ed. 260, 40 S.Ct. 141, 150.) Knoll’s reference to People ex rel. Ogilvie v. Lewis (1971), 49 Ill.2d 476, is inapposite. The case did not deal with the date on which an Act becomes effective, but rather concerned itself with the power of the legislature to pass an act in anticipation of an adopted but not yet effective constitutional provision.

The trial court found that the petitioner’s notice failed to comply with the requirements of the amended statute in the following ways:

1. The notice did not provide for the number of the certificate.
2. The notice did not carry in ten point type the following legends, “THIS PROPERTY HAS BEEN SOLD FOR DELINQUENT TAXES,” and “YOU ARE URGED TO REDEEM IMMEDIATELY TO PREVENT LOSS OF PROPERTY.”
3. The notice did not contain a statement showing the location of the property in addition to the legal description.
4. The notice did not contain the following: “This notice is also to advise you that a petition has been filed for a tax deed which will transfer title and the right to possession of the property if redemption is not made on or before October 29, 1971.
# # #
Redemption can be made at any time on or before October 29, 1971 by applying to the County Clerk of Lake County, Illinois, at the county courthouse in Waukegan, Illinois. For any further information contact the County Clerk.”

Knoll concedes that the notice did not comply with the statute as amended, but argues that “absolute perfection is not required in tax ■foreclosure proceedings and the court should not permit purely technical objections to thwart statutory provisions to ensure collectibility of taxes”. This argument ignores section 266 of the Act which states that: “[t]he court shall insist on strict compliance with the provisions of section 263 of this Act.” (Ill. Rev. Stat. 1971, ch. 120, par. 747.) Such has been the case law for many years. (Bailey v. Smith (1899), 178 Ill. 72, 74; Clark v. Zaleski (1912), 253 Ill. 63, 74; People v. Banks (1916), 272 Ill. 502, 506.) Nor are the defects cured because the clerk sent a notice to the owner which provided most of the matter found lacking in Knoll’s notice but in somewhat different language. Section 263 contains no provision pertaining to a notice to be given by the county clerk, but only to that required of the tax sale purchaser.

In our view, the trial court correctly found that the tax deed proceedings were defective. However, we do not agree that the statute authorized the trial court to then order the payment the redemption money to the tax deed petitioner on the ground that he attempted to comply with the notice provision as he understood it. Section 253 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 734) provides:

“When the party redeeming appears and presents his defense, the court shall hear and determine the matter. Upon a finding that there has been compliance with all of the provisions of this Act and that the petitioner would be entitled to a deed in the absence of the redemption under protest, the court shall order the protest stricken and direct the county clerk to distribute the redemption money upon surrender of the certificate of sale. Upon a finding sustaining the protest in whole or in part, the court may declare the sale to be a sale in error under either Section 260 or Section 266, and shall direct the county clerk to return all or a part of the redemption money or deposit to the party redeeming.” (Emphasis added.)

Under the statute the redemption money can be ordered paid to the purchaser only if he would have been entitled to a tax deed in the absence of the redemption under protest. If such is not the case, as here, the redemption money must be returned to the party redeeming. The court can then determine whether a seal in error should be declared, but it does not have the authority to award the redemption money to the purchaser if the grounds of the protest have been sustained.

It might appear that section 270 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 751) authorizes the court to require reimbursement from the owner in the situation before us. It provides in part that any judgment or decree of the court setting aside any tax deed, or restoring the owner to possession, shall provide that the claimant shall pay to the party holding the tax deed all taxes and other fees paid in regard to the land. This section has been held equally applicable to the setting aside of tax sale certificates. (Tubbs v. Dunlop (1945), 325 Ill.App. 53, 61; Chicago Land Clearance Com. v. Narodski (1965), 57 Ill.App.2d 302, 307. See also La Salle Nat. Bk. v. Hoffman (1971), 1 Ill.App.3d 470, 474.) However, none of these cases were concerned with a redemption under the statute. A redemption under protest, in which a defense against a defective tax deed proceeding is presented, is a procedure not contemplated by earlier cases and not authorized by statute until 1970. Section 253 (Ill. Rev. Stat. 1971, ch. 120, par. 734), in providing for such a procedure, sets out the circumstances under which a purchaser is entitled to be reimbursed by a redeeming owner. To apply section 270 to the proceeding before us would render the language of section 253, authorizing the court to declare a sale in error under section 266, without meaning. We cannot give it such an application.

Knoll asks us to uphold the lower court’s decision on the basis that equity demands that it be reimbursed by the owner. We do not have this authority in contravention of the language of the statute. (See Gabel v. City of Chicago (1987), 37 Ill.2d 532, 535-6.) However, as previously stated, section 253 (Ill. Rev. Stat. 1971, ch. 120, par. 734) provides that if the protest is sustained, a sale in error may be declared under section 266. Section 266 allows the court to order the return of the purchase price by the county clerk if it finds that a tax deed will not issue due to the failure of the purchaser to fulfill any of several provisions, one of which is the giving of proper notices, but further finds that the purchaser made a bona fide attempt to comply with the statutory requirements. It appears that the trial court found Knoll to have made a bona fide attempt to comply with the requirements for the issuance of a tax deed. We agree with this determination. We, therefore, feel that the declaration of a sale in error is in order. People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill.2d 150.

The judgment of the trial court denying the redemption under protest and awarding the tax deed petitioner the redemption money deposited by the owner is reversed and the cause is remanded for the purpose of declaring a sale in error under section 266 of the Revenue Act.

Reversed and remanded, with directions.

GUILD, P. J., and T. MORAN, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE ABRAHAMSON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Paul Kriston, Defendant-Appellant.
    (No. 71-347;
    Second District
    June 6, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered tire opinion of the court:

The appellant, Henry ICriston, was indicted together with his brother, Charles Kriston, and Charles Fick by the grand jury of Lake County and charged with the offenses of attempt to commit murder and aggravated battery. The two Kristons were tried together before a jury and found guilty of aggravated battery with a directed verdict in their favor on the charges of attempt. Henry Kriston was sentenced to probation for 5 years with the first 8 months to be served at the State farm at Vandalia. On appeal, he contends that the evidence did not prove his guilt beyond a reasonable doubt and that the jury was prejudiced against him as a result of an improper display of a chain during his trial.

The evidence showed that the Kriston brothers were at the Universal Restaurant on the north side of Madison Street in Waukegan at approximately 12:00 A.M. on July 25, 1970. Also at, or in front of, the restaurant were Fick, his girlfriend, Pat Rooney, and Roger Spice, Larry Ebler and Roberta Fletcher.

Spice went into the restaurant and purchased a hamburger and returned with it to the sidewalk in front of the restaurant where the others were standing and talking. When Spice refused to give Fick a portion of his hamburger, Fick struck him in the face. Ebler then grabbed Fick and the two began to fight, falling on the ground, until Charles Kriston pulled Ebler off of Fick and Ebler ran down the street. The testimony of all the witnesses, except for insignificant details, is consistent up to this point but there is a conflict in what occurred thereafter.

Kenneth Clark, an assistant State’s Attorney for Lake County, testified for the State that he was leaving the Burgundy Room Lounge with Wayne Flanigan, an assistant public defender, with their wives at approximately 12:30 A.M. The Lounge is located directly across the street from the Universal Restaurant on the south side of Madison. Clark observed a fight in progress across the street and saw a boy in a blue shirt (Ebler) attempting to get up. He saw another person with blond hair and a motorcycle jacket (identified as Charles Kriston) pull Ebler up and Ebler run to the east. Clark testified that he then saw Fick turn to a boy in a white shirt (Spice), who was standing on the sidewalk in the entrance to an alley adjoining the restaurant to the east. He saw Spice put his hand up and heard him say “I don’t want to fight”. Fick then punched Spice and, Clark testified, the two Kriston brothers grabbed Spice’s arms and held him from either side while Fick struck him on the head with a chain. They then dragged Spice back into the alley where the Kriston brothers kicked him in the head and Fick hit him again with the chain. As Clark crossed the street, Fick and the Kristons came out of the alley and he had a good look at their faces. Clark went back into the alley to Spice who lay, unconscious, with his head under a water pipe.

Clark stated that there was little traffic on Madison street at the time; that there were street lights in front of the Burgundy Lounge and on the north side of Madison and that the area was well lighted and he was able to see into the alley with no difficulty. He testified that Fick and Charles Kriston wore motorcycle jackets with insignias and that Henry Kriston had on levis and motorcycle boots but no shirt or jacket.

Flanigan also recalled seeing Fick turn to Spice after Ebler had left and Spice raise his hands at the entrance of the alley and state that he didn’t want to fight. He testified that he then saw Fick strike Spice with a chain and Spice “crumple” to the ground. Then, Flanigan recalled, tire Kristons took Spice by either arm and dragged him back in the alley where they laid him down by the rainpipe and Fick and both Kristons hit and kicked him. He also saw Fick and the Kristons as they left the alley and said that Charles Kriston and Fick wore blue levi’s, motorcycle jackets, cut off on the sleeves, with various insignias and signs on the jackets. The other Kriston, he recalled, had no shirt.

Martin Salminen, a third eye-witness to testify for the State, stated that he was walking down Madison when the fight broke out. He testified that he saw “a tall blond-haired fellow” (identified as Charles Kris-ton) pull Ebler off of Fick and that Fick and Charles ran after Ebler. They then returned to the alley and started to push Spice back into it and Spice threw up his hands and said he didn’t want to fight. He also observed a “fellow” without a shirt but didn’t see him push or strike Spice. Salminen saw Fick strike Spice with a chain and tire tall blond-haired fellow kick him. He was unable to identify Henry Kriston as the individual without the shirt.

In the meantime, Mrs. Clark had telephoned the police who arrived on the scene shortly thereafter where all three defendants were arrested a short distance away.

Six witnesses testified for the defense. Charles Kriston testified that he pulled Ebler off of Fick and then went to the door of the restaurant where he stood with his brother. He saw Fick push Spice into the alley and strike him with a chain. He also testified that a Roy Miller stood next to Fick and went into the alley and kicked Spice while he was on the ground. Charles said he wore a cut-off levi jacket with engineer’s boots that night.

Mary Radky and Judy Grubbs testified that they had gone to the restaurant with Roy Miller and were talking with the Kristons when the fight in the alley started. The two girls stated they then crossed the street but kept looking back and that neither of the Kristons left the front of the restaurant or went into the alley. Mary Radky said she later observed blood on Miller’s boots and that he said he had “kicked a guy in the head.” Judy Grubbs testified that Miller was wearing a “splashy”” shirt.

Bob Worthington testified that he was at the scene during the attack and that only he, Fick, Spice, and Roy Miller were in the alley when Spice was beaten. He said that Fick hit Spice with the chain and that Miller kicked him until Worthington pulled him away. He also testified that the Kristons did not go into the alley and that he heard them “hollering” from the street.

Henry Kriston testified that he and Charles stood near the door of the restaurant and saw Fick, Spice, Worthington and Miller go into the alley. He said it was dark in the alley and he could not see the fight too clearly.

Fick, called as an adverse witness, admitted that he struck Spice with a chain and that Miller kicked Spice in the alley. He did not see either of the Kristons in the alley or anyone but Miller kick Spice. He testified that he and Charles Kriston were the only persons present with motorcycle jackets and both had insignias on the back and that Henry Kriston had no jacket or shirt.

Spice testified that Fick hit him with a chain and that two persons stood by his sides and held his arms but did not see who it was. He also testified that he was hospitalized for 7 days as a result of his injuries.

The defendant contends that the testimony of the State’s witnesses contains so many inconsistencies and improbabilities that, when considered with the evidence offered by fire defense, his guilt was not established beyond a reasonable doubt. He points out that Clark testified that he saw Worthington kick Ebler during the first fight, a fact denied by all other witnesses including Ebler. Clark also stated that the first fight was in the front of a dry cleaners east of the alley whereas all other witnesses agree that it was in front of the restaurant. He also reminds us that Salminen testified that Fick and Charles Kriston chased Ebler, a fact contradicted by all of the other evidence. He further emphasizes that Clark testified that the Kristons held Spice’s arms while Fick first hit him; that Flanigan said they only took his arms and dragged him back into the alley after he had “crumpled” from the first blow; and that Salminen stated that Fick and Charles Kriston pushed Spice to the ground before Fick pulled out the chain.

Of course, these, and the other discrepancies repeated by the appellant in his brief, were all before the jury and were properly a matter for their consideration of the credibility of the witnesses and the weight to be given to their testimony. The jury also could consider the positive identification of Henry Kriston by both Clark and Flanigan. It is well established that a positive identification by even one witness, who had a good opportunity to observe an accused in terms of length of time, proximity and lighting conditions, is sufficient to sustain a verdict of guilty. (People v. Solomon, 24 Ill.2d 586, 591, 182 N.E.2d 736; Peoples. Pride, 16 Ill.2d 82, 156 N.E.2d 551.) Both Clark and Flanigan testified that Henry Kriston was the only person present with no shirt or jacket, a fact corroborrated by Fick and not denied by any other witness including the Kristons. Also, they both testified that they observed' Henry,, together with his brother and Fick,. as they walked out of the alley.

It is trae that the defense produced more witnesses than the State but it is equally true that a jury’s verdict will not be reversed on appeal for that reason alone. (People v. Setzke, 22 Ill.2d 582, 586, 177 N.E.2d 168.) The jury was also justified in taking into consideration the close relationship between the appellant and several of the witnesses who testified in his behalf. (Pfaelzer v. Kostner, 87 Ill.App.2d 315, 231 N.E.2d 668.) Fick was a good friend of Charles Kriston and a member of the same motorcycle gang. Mary Radky, Judy Grubbs and Worthington were all acquainted with the Kristons but did not know Spice.

While Mary Radky, Worthington and Fick all testified that Roy Miller kicked Spice and was in the alley, the jury could consider the other testimony that Miller wore a “splashy”, flowered shirt that night and that the possibility of the State’s witnesses confusing Miller with the Kristons was extremely remote.

The witnesses for the State gave substantially the same testimony as to the major details of the aggravated battery including the identity and appearance of the participants and we cannot say that the verdict of guilty was so palpably contrary to the weight of the evidence to warrant reversal. People v. Malmenato, 14 Ill.2d 52, 150 N.E.2d 806.

The defendant also contends that the evidence did not prove his guilt beyond a reasonable doubt by accountability principles. Section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, sec. 5 — 2) provides in part as follows:

“A person is legally accountable for the conduct of another when:

# e »
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *”

As has been pointed out in earlier cases, the statute is not intended to resurrect the discredited doctrine of guilt by association. (People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284, 288.) Under the section, the prosecution must prove beyond a reasonable doubt (1) that the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) that his participation took place either before or during the commission of the offense; and (3) it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. People v. Tillman, 130 Ill.App.2d 743, 749, 750, 265 N.E.2d 904, 909.

The defendant argues that the evidence failed to show beyond a reasonable doubt that he either aided or abetted Fick in the planning pr commission of the beating of Spice but that, on the contrary, it established that he merely happened to be on the scene. As has been already pointed out, both Clark and Flanigan positively identified the defendant as having held Spice by the arms and kicked him as he lay on the ground. Both witnesses, identified Henry Kriston as the only person present with no shirt or jacket. Under these facts, we cannot say that his guilt under the principle of accountability was not proven beyond a reasonable doubt.

Sergeant Charles Mason of the Waukegan police testified as to the circumstances of his arrest of Fick and the Kristons a short distance from the scene of the fight. The record indicates the following colloquy during his direct examination:

“(Mason) * * * Shortly thereafter I received a chain from Deputy Walters of the Lake County Sheriff’s Office.

Q. Do you have that with you?

A. Yes, sir.

Q. Can I see it?

A. Yes, sir.

Q. Where has this been since that particular' date when you received it from Mr. Walters?

A. In the evidence and property room of the Waukegan Police Department. * * *

Q. Looking at that particular chain right now, Officer Mason, is it in the same condition now as it was on the date you received it?

A. Yes.”

No attempt was made to offer the chain into evidence nor does any further reference to it appear in the record. Defense counsel did not object to Mason’s testimony relative to the chain on the assumption that it would be offered into evidence. The State admits that, under the circumstances, the display of the chain was improper but that it was harmless error. We agree.

All of the witnesses testified that Fick struck Spice with a chain. The State never argued, nor did any of its witnesses testify, that either of the-Kristons wielded or even touched the chain. In view of the other evidence in the case, we do not feel that the jury was, or could have been, prejudiced against Henry Kriston as a result of the display of a chain during his trial.

For the reasons stated, the judgment of the trial court will be affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J, concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Merle Hoover, Defendant-Appellee.
    (No. 72-271;
    Second District
    June 6, 1973.
    John B. Roe, State’s Attorney, of Oregon, (Richard L. CaldweU, Assistant State’s Attorney, of counsel,) for the People.
    Fearer & Nye, of Oregon, for appeHee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

A complaint was filed by the State on July 31, 1972, charging the defendant with the sale and delivery of alcohofic beverages to a person not of age in violation of Ill. Rev. Stat. 1971, ch. 43, sec. 131. Twenty-six days later, August 25, 1972, the State’s Attorney moved for a continuance on the grounds of non-availability of his witnesses. The trial court on motion of defendant dismissed the cause stating among other things: “Well, I’ll deny the motion, for continuance on the facts as stated here. It’s a close question but that will be the judgment of the court * * * the State not being ready to proceed, the defendant’s motion to dismiss for want of prosecution will be granted.”

We do not deem it necessary to discuss the facts herein. The judgment of the trial court in discharging the defendant was improper. The only grounds authorizing the discharge of a defendant without trial are found in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 1. In a most similar case, People v. Barksdale (1969), 110 Ill.App.2d 163, the trial court dismissed the criminal case for want of prosecution upon the defendant’s motion. In that case the witnesses were non-available and the court specificaHy held that the trial court has no power to dismiss the indictment except on the grounds set forth in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 1. In People v. Shick (1968), 101 Ill.App.2d 377, the court stated exactly the same thing. In a recent case in this court, People v. Guido (1973), 11 Ill.App.3d 1066, we stated that “A dismissal for want of prosecution does not come within any of the statutory grounds set forth in Section 114 — 1.” We adhere to that opinion.

Defendant also contends that the “State did not subscribe to the statute which requires the clerk of the trial court to send a notice of appeal to the defendant as well as counsel for the defendant.” We consider this argument specious. The defendant has filed an appearance and answer in this court and the argument is without merit. The fault, if any, lies with the clerk of the circuit court, not with the appeUant.

We therefore reverse the order of dismissal and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

T. MORAN and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Myrtle G. Conley, Plaintiff-Appellant, v. Harold Rust, Admr. of the Estate of Ruth F. Kline, Deceased, Defendant-Appellee.
    (No. 72-191;
    Third District
    June 5, 1973.

      Thomas V. Cassidy, of Peoria, for appellant
    Heyl, Royster, Voelker & Allen, of Peoria, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought to recover damages for personal injuries occasioned by the alleged negligence of Ruth F. Kline, the decedent, in driving her automobile. The circuit court of Tazewell County dismissed plaintiffs complaint for lack of jurisdiction of the subject matter and the parties and entered judgment in favor of defendant. Myrtle G. Conley, the plaintiff, has appealed from that order of dismissal.

On July 12, 1968, the plaintiff was a passenger in an automobile being driven by Ruth F. Kline, the car smashed into a tree killing the driver and severely injuring the passenger.

The estate of Ruth F. Kline was opened Sept. 23, 1968, when her will was admitted to probate and Ivan Yontz was appointed executor: After due course of administration the final account of the executor was approved and the executor discharged on May 13, 1969.

On the last day before the running of the two year statute of limitations plaintiff filed a complaint against James Heiple, Administrator of the Estate of Ruth F. Kline, deceased. Summons was issued and served within a few days.

James Heiple promptly moved on July 15, 1970, to dismiss the complaint on the ground that he never was the administrator of the estate. (He had been the attorney for the executor.) A hearing was not had on the motion until 1971, when it was considered with a second motion filed Sept. 10, 1971. Meanwhile, on Oct. 2, 1970, plaintiff filed a petition to reopen the estate and appoint Harold Rust administrator. The appointment was made on that date. On Sept. 1, 1971, Harold Rust was substituted as the named party defendant as Administrator of the Estate of Ruth F. Kline.

On Sept. 10, 1971 (after having been dismissed as a party), James D. Heiple filed a second motion to dismiss on the ground that the cause of action was not commenced within two years and the further ground that no claim was filed within 7 months of the time the estate was opened.

On Dec. 7, 1971, the trial court granted the second motion to dismiss, within 30 days a motion to reconsider was filed and on April 20, 1972, the court denied plaintiff’s motion to reconsider. Notice of appeal was filed on the last permissible date appealing the order of Dec. 7, 1971.

At the outset we must dispose of the defense argument that the notice of appeal was not filed within 30 days of the judgment appealed from.

Supreme Court Rule 303(a) provides: “* * # the notice of appeal must be filed * * * within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion.” (Emphasis added.)

It is clear that by filing her motion to reconsider within 30 days of Dec. 7, 1971, the usual 30 day period for filing notice of appeal did not begin to run until the entry of the order disposing of the post-trial motion. Cf. Childress v. State Farm Mutual Auto. Insurance Co., 97 Ill.App.2d 112, 121.

Plaintiff has appealed assigning the following as error:

1. The court erred in allowing a motion to be prosecuted by a party who had been relieved of further duties by the court and for whom another party had been substituted.

On Sept. 1, 1971, the following order was entered by the trial judge:

“The plaintiff present in open court by Thos. V. Cassidy, her attorney, and the defendant present in open court by Heyl, Royster, Voelker and Allen, his attorneys and upon Motion of Plaintiff: Harold J. Rust, Public Administrator is hereby substituted as named party defendant and in the capacity of Administrator of the Estate of Ruth F. Kline, deceased.
A rule is entered upon defendant to further plead within twenty-one (21) days.
Robert E. Hunt
Judge of the Tenth Judicial Circuit”.

After the entry of the above order, James D. Heiple filed his second motion to dismiss previously referred to.

Did he have standing to file and prosecute that second motion after he had been relieved of further duties by the substitution of Harold J. Rust? In other words, could the complaint be dismissed with prejudice upon motion of one not a party to the suit?

Ordinarily, only a party may make a motion in respect to pleadings. Sec. 48(1) of the Civil Practice Act states, “Defendant may, * * * file a motion * * As was said in Jackson v. Pioletti, 346 Ill.App. 569, 572, “* * * the petition could not be dismissed upon motion of one not a party to the suit.”

As a general rule a plea or other objection in abatement of an action can be presented only by the defendant in the action sought to be abated and not by an intervenor or stranger in the cause. 1 C.J.S. Abatement and Revival, sec. 188.

Defendant argues that the statutes of limitations are applicable; if they are they are not available to James D. Heiple, a stranger to the law suit.

As a general rule, the defense of the statute of limitations is a personal defense and can be set up or taken advantage of only by the debtor or person for whose benefit the statute inures, or by one standing in his place or stead. (25 I.L.P. Limitations, sec. 8, 164), and it is a personal privilege which may be waived. It is not a defense as to strangers. Massman v. Duffy, 330 Ill.App. 76, 85.

For the foregoing reasons we believe that James Heiple had no status to file and prosecute the motion to dismiss after he had been dismissed out of the case as a named party defendant and accordingly the judgment of the circuit court of Tazewell County is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

SCOTT, P. J„ and STOUDER, J., concur.

       Not on the grounds alleged in the motions but on the basis that there was no legal entity in existence on the day of the filing of the complaint against whom suit might be brought and that plaintiff had sued a non-entity. Citing Reed v. Long, 122 Ill.App.2d 295.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
      In re Estate of Charles L. Spengler, Incompetent—(The First National Bank of Springfield, Plaintiff-Appellee, v. Lemuel L. Spengler et al., Defendants-Appellants.)
    (No. 11758;
    Fourth District
    June 6, 1973.
    Free & Free, of Springfield, (Edward G. Free, of counsel,) for appellants.
    Brown, Hay & Stephens, of Springfield, (Elizabeth G. Frazee, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The plaintiff bank, as conservator, sought to discover and recover property of its ward, Charles L. Spengler, an adjudicated incompetent. The trial court ordered the defendants to convey back to the estate of the incompetent certain property that he had conveyed to them and further ordered a refund of some $4000 that had been transferred by the incompetent to the defendants. The action of the trial court was pursuant to plaintiff’s motion for summary judgment. We affirm.

On July 28, 1969, Charles L. Spengler filed a petition for the appointment of a conservator of his estate. In his own petition, he alleged that he was incompetent and physically incapable of managing his person or estate. Hie petition was set for hearing and notice was ordered given to the various listed persons. The hearing was scheduled for July 31, 1969, and was thereafter continued to August 6, 1969.

The next matter of record is a special appearance and objection to jurisdiction filed by an attorney for Charles L. Spengler. In that special appearance it is alleged that the circuit court on August 6, 1969, ordered that the petition be dismissed after one week unless one or more of the named children of Charles L. Spengler filed a petition for the appointment of a conservator. An affidavit of the defendant, Lemuel L. Spengler, was appended to this “special appearance” and is in agreement with those allegations.

Other children of Charles L. Spengler filed a motion to strike the special appearance and requested a hearing upon the original petition. That motion in addition alleged that Charles L. Spengler, since the date of the filing of the petition, “has been and still is mentally incompetent to make a decision upon withdrawing the petition.” A medical report of a doctor and an affidavit of a nurse were appended to the motion.

Thereafter, after hearing, the circuit court determined Charles L. Spengler to be an incompetent and appointed the First National Bank as his conservator. The conservator by citation proceeding and by a petition to recover certain assets sought to recover the real estate and the $4000.

On March 12, 1971, the conservator filed a supplemental petition for citation and for recovery of property containing many allegations, including the allegation of the incompetency of the ward and the care of him by certain of his children. The supplemental petition also set forth the alleged asset situation of the alleged incompetent at the time of the filing of the petition for conservator, and alleged that certain real estate was conveyed by Charles L. Spengler to the defendants, subsequent to the date of the filing of the petition and allegedly at a price substantially less than its fair market value and under circumstances that would lessen the value of the incompetent’s real estate by reason of a cutting off of access, and further that a power of attorney was executed by the incompetent to the defendant, Lemuel L. Spengler, and that an accounting rendered by said defendant to the conservator concerning the incompetent’s monetary affairs showed a gift of some $4000 by the incompetent to the defendants and that at all times the defendants knew, or should have known, that a petition for conservator had been filed and was pending and that a fiduciary relationship existed between the incompetent and the defendants. It is further alleged that the fair market value of the real estate conveyed was almost $20,000, wherein the purported purchase price paid by the defendants was $4000. The answer of the defendants admits the conveyance and admits the gift but it does deny the allegation as to the fair market value of the real estate.

Thereafter, the plaintiff filed a motion for summary judgment. In its motion, it alleges the filing of the petition and the appointment of the conservator on the basis of incompetency because of physical incapacity. The above recited transactions were alleged to have taken place between the date of filing the petition — July 28, 1969 — and the date of adjudication of incompetency — June 26, 1970.

The Illinois Probate Act (Ill. Rev. Stat., ch. 3, par. 126) provides in part:

“* # tt Every contract made with * * * any person thereafter adjudicated incompetent after a petition has been filed for the appointment of a conservator, may be avoided * *

The term “contract” as used in that statute included deed. (Burnham v. Kidwell, 113 Ill. 425.) As there used, the term is likewise broad enough to include gift.

In Sheldon v. Eakle, 251 Ill. 369, 96 N.E. 246, the court construed an act to revise the law in relation to idiots, lunatics, drunkards, and spendthrifts (Hurds Stats. 1908, ch. 86, p. 1393) which provided: “‘Every contract made with an idiot, lunatic or distracted person before such finding, or with a drunkard or spendthrift made after the application of the appointment of a conservator, may be avoided, except in favor of the person fraudulently making the same.” The court held that where after the application for an appointment of a conservator, a note and a mortgage were executed by the appellee, the note and mortgage were voidable under section 15 of the act, even though there was no fraud in the transaction. The court held that the quoted section of the statute was a complete defense to the bill to foreclose the mortgage. If this case were followed, the defendants would not be allowed to present proof that Charles L. Spengler was actually competent at the specific times of the transactions sought to be avoided.

In William M. James, 3 Ill. Probate Law and Practice (1951), sec. 126.1, at page 445, in regard to contracts made between the filing of a petition for conservatorship and the adjudication of incompetency, James interprets section 126 of the Probate Act as follows:

“* * * No special proof of insanity, mental illness, feeblemindedness, mental deficiency, idiocy or imbecility is necessary here. It may be said that the verdict of the jury determining the incompetency thus has quasi retroactive power back to the moment when the petition for conservatorship was filed.”

James also says in section 126.9 of 3 Ill. Probate Law and Practice (1951), pp. 472-473, that:

“(Section 126) protects the spendthrifts as weH as any other person later adjudged incompetent by facilitating the avoidability of their transactions, making unnecessary any proof of their mental incapacity during the period indicated.”

James’s interpretation of section 126 would not allow proof of the mental condition of an incompetent at the time of specific transactions which took place after the filing of a petition for conservatorship.

The defendant cites McGregor v. Keun (1928), 330 Ill. 106, 161 N.E. 99, and Kasbohm v. Miller (1937), 366 Ill. 484, 9 N.E.2d 216. However, at the time of those cases, only contracts with spendthrifts and drunkards were voidable if executed between petition and adjudication (see Historical Note to ch. 3, sec. 126).

The obvious purpose of this section of the Probate Act and like predecessor statutes is to protect the estate of one adjudicated incompetent. From the date of the filing of the petition, the voidability of the contract is not dependent upon fraud or dissipation of the incompetent’s estate.

The trial court was correct in its determination that the record of the court cannot be amended, varied or impeached by recollection or bystander affidavit. Woodward v. Ruel, 355 Ill. 163, 188 N.E. 911.

Thus there was no issue as to any material fact presented by this record and accordingly the circuit court properly granted the plaintiff’s motion for summary judgment and its action in so doing should be, and it is, affirmed.

Judgment affirmed.

SIMKINS and TRAPP, JJ., concur,


text:
    Prairie Vista, Inc., Plaintiff-Appellant, v. James D. Casella, Defendant-Appellee.
    (No. 11811;
    Fourth District
    June 6, 1973.
    Dunn, Brady, Goebel, Ulbrich, Hayes & Morel, of Bloomington, (George R. Flynn, of counsel,) for appellant.
    Thomson & Mirza, of Bloomington, (Chester Thomson, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Plaintiff brought an action against James and Donna Casella seeking to recover a deficiency judgment in the amount of $1921.18 and costs of suit. After a bench trial, the court found in favor of the defendant and against plaintiff on the plaintiff’s complaint, and found for the plaintiff and against defendant on defendant’s counter-claim. The plaintiff appeals from the judgment of the circuit court of McLean County.

On October 30, 1969, plaintiff entered into an installment contract with defendant for the sale of a mobile home. The sales contract was assigned with full recourse to the McLean County Bank. In November 1970, defendant defaulted on the contract, moved out of the trailer and executed an assignment of the certificate of title in blank. In January 1971, defendant returned the keys to the mobile home to the plaintiff. Notice of a private sale to be held on April 10, 1971, was mailed to the defendant on April 7 and received by him on the 8th day of April. April 9 was a holiday. The trailer was sold on April 10, leaving a deficiency of $1921.18. Donna Casella, defendant’s wife, was later dismissed as a party by stipulation and is not involved in this appeal.

The trial court found that the plaintiff failed to give reasonable notice of the sale as required in section 9 — 504(3) of the Uniform Commercial Code. (Ill. Rev. Stat. 1971, ch. 26, par. 9 — 504(3).) Whether or not the decision of the trial court is against the manifest weight of the evidence is the.issue presented on appeal.

The judgment entered in this case cannot be said to be against the manifest weight of the evidence. There was no error of law in the proceedings below nor waiver of notice. A further recitation of the factual testimony would in our judgment serve no useful propose, and an opinion thereon would have no precedential value. Accordingly, pursuant to Rule 23 of the Supreme Court Rules, the judgment of the circuit court of McLean County is affirmed.

Judgment affirmed.

SIMKINS and TRAPP, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis H. Bauswell, Defendant-Appellant.
    (No. 11730;
    Fourth District
    June 7, 1973.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur,. (Patrick M. Walsh, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Louis H. Bauswell was convicted, on a plea of guilty, of the crime of Indecent Liberties With a Child in violation of Ill. Rev. Stat. 1969, ch. 38, sec. 11 — 4(a)(3). On August 17, 1971, the defendant appeared in open court, with counsel of his own choice, and the record establishes the following:

“MR. JOHNSON (defendant’s counsel): Your Honor, the defendant at this time offers to withdraw his plea of not guilty, and enters a plea of guilty to the charge of indecent liberties with a child, under the information, indictment in 71 — CF — 87.

THE COURT: Show the offer to plead guilty. I assume by now there’s no question in the mind of the defendant what the nature of the charges are? You understand what they accuse you of doing?

DEFENDANT: Yes, sir.”

This excerpt contains the court’s only reference to the nature of the charge. Subsequently the following exchange occurred:

“THE COURT: Along that line I saw a post-conviction petition for this charge recently in which the defendant said, I wasn’t guilty but I did it to spare the complaining witness, alleged victim, I’d rather go to prison than make her testify in court, is what he said. Is it, is that the situation here, that you’re doing this to shield some — it would be the complaining witness — it’s a child. I assume it’s your child by the name.

DEFENDANT: My child.

THE COURT: And in that case he stated I did it in order to spare my child court appearances. Is that the case here?

DEFENDANT: That’s part of it, Your Honor.

THE COURT: Well, that’s not enough. In that we don’t want any innocent person to plead guilty to any offense.

DEFENDANT: She’s mentally retarded, I’d hate to put her through a jury trial.

THE COURT: Well, I’m sure no one would want to see a child put in this position. But on the other hand, this is a serious matter and we wouldn’t want anyone innocent to plead guilty for that reason, either.

MR. JOHNSON: May I ask Mr. Bauswell — is this your decision to plead guilty?

DEFENDANT: Yes, it’s my decision to plead guilty.”

During the hearing on defendant’s petition to be admitted to probation the defendant testified in his own behalf and on cross-examination by the State’s Attorney, the following questions, answers and statements are made:

“Q. Mr. Bauswell, are the facts and circumstances set forth in 71 — CF — 87 concerning a charge of indecent liberties with your other daughter correct? Did you engage in that conduct?

A. That kind of poses a problem there. My daughter there is mentally retarded.

Q. I am asking you whether you engaged in that conduct?

A. No, I did not.”

The trial judge then denied defendant’s petition for probation and imposed a sentence of 4 to 10 years in the penitentiary. Defendant urges that it was error for the trial judge to have accepted the guilty plea where he stated that he was entering the plea to protect his mentally retarded daughter and that it was further error for the judge not to have sua sponte, vacated the plea when the defendant reiterated his innocence during the hearing on the petition for probation.

“The crux of the requirement of Rule 402(a)(1) is understanding. The nature of a charge consists of two parts: (1) The acts and intent (if any) required to constitute a violation of the provisions of the criminal code, and (2) the alleged acts and intent (if any) with which the alleged acts were committed which are attributed to the defendant in the particular case. These two parts should be explained by the judge to the defendant in open court in laymen’s terms. The judge should proceed no further until he is completely satisfied from the defendant’s personal remarks in open court that he understands the explanation.”

People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533.

Supreme Court Rule 402 has been in existence since 1970. Its language is straight forward, explicit and uncomplicated. Among other things, it commands that “The Court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge; * * The rule was designed to obviate the precise problem which this record presents, and, if complied with, it will accomplish that end.

The judgment of the trial court is reversed for noncompliance with Rule 402, and the cause remanded with directions to permit the defendant to plead anew.

Reversed and remanded with directions.

CRAVEN, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Krantz, Defendant-Appellant.
    (No. 12103;
    Fourth District
    June 7, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

On September 18, 1972, the defendant appeared in court with his appointed counsel, asked leave to withdraw a previously entered plea of not guilty to two charges of forgery, and indicated a desire to enter a plea of guilty to die charges pursuant to plea negotiations. Ultimately, the pleas of not guilty were withdrawn, pleas of guilty were entered, and in accordance with the plea negotiations an indeterminate sentence of not less than 2 nor more than 7 years was imposed upon each of the charges of forgery. The sentences were to run concurrently.

Upon this appeal, the defendant asserts that the trial court did not comply with the requirements of Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) applicable to the acceptance of pleas of guilty.

The specific deficiency asserted to exist in this proceeding is that the trial court failed to explain to the defendant the nature of the charge. The inquiry directed to the defendant by the court was: “Mr. Krantz, do you understand what you’re charged with in these indictments, forgery?” The defendant: “Yes”. The court thereafter went into an explanation of the possible penalties and omitted any reference to the penalty section of the statute relating to a possible fine.

Rule 402 as amended and effective in September 1970 places an affirmative duty on the trial court not to accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands, among other things, the nature of the charge. It is clear from the Committee Comments that the duty imposed upon the trial court is an affirmative duty placed there in order that the acceptance of pleas of guilty would be in accordance with the requirements of the United States Supreme Court as enumerated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

It is a violation of due process to accept a guilty plea in a criminal proceedings without an affirmative showing placed in the record that the defendant voluntarily and understandingly enters his plea and that he understands the nature of the charge and the possible consequences of the plea. Rule 402 likewise imposes certain affirmative duties on the part of the trial court with reference to plea discussions, agreements, negotiations and sentence.

There is a distinction between a factual basis for a plea required to be ascertained by Rule 402 and a determination that the defendant understands the nature of the charge.

We agree with the statement of the court in People v. Hudson, 7 Ill.App.3d 800, 802, 288 N.E.2d 533, 535, that:

“* # * The nature of a charge consists of two parts: (1) The acts and intent (if any) required to constitute a violation of the provisions of the criminal code, and (2) the alleged acts and intent (if any) with which the alleged acts were committed which are attributed to the defendant in the particular case. These two parts should be explained by the judge to the defendant in open court in laymens terms. The judge should proceed no further until he is completely satisfied from the defendant’s personal remarks in open court that he understands the explanation. The Supreme Court of Illinois, in commenting on the case of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1989), has said:
‘That opinion (McCarthy) emphasizes the importance of personal inquiries addressed to the defendant to ascertain directly his understanding of the nature of the charge against him. And although that decision was ‘based solely’ upon the Supreme Court’s construction of Rule 11 of the Federal Rules of Criminal Procedure, the underlying reasons apply equally to Rule 401 (now, as modified Rule 402) of this court.’ People v. Mims, 42 Ill.2d 441, 248 N.E.2d 92, 94.
“The Unitéd States Supreme Court reversed McCarthy’s conviction entered on a plea of guilty because the trial judge did not ‘personally inquire whether the defendant understood the nature of the charge’ as required by Rule 11, Fed.R.Crim.P.; McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418.”

In the instant case, the quoted inquiry of the defendant is insufficient.

Having reviewed numerous cases in which compliance with Rule 402 is a substantial issue, we find ourselves in complete agreement with the observation in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, 428-429:

“* * * [TJhat a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also wiU help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.”

That which the United States Supreme Court observed in McCarthy applicable to Federal Rule 11 is as our supreme court noted in Mims equally applicable to our Rule 402.

In this case, the defendant did make certain observations that might arguably be said to establish his understanding of the nature of the charge. We are not persuaded that his observations establish substantial compliance with the affirmative and specific requirements of Rule 402.

The judgment and sentence is therefore required to be reversed and this cause remanded with directions to permit the defendant to plead anew.

Reversed and remanded with directions.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE McNAMARA.

text:
    Charles F. King, Plaintiff-Appellant, v. Werner Eichhoefer, Defendant-Appellee—(Paul Gorka, Defendant.)
    (No. 57333;
    First District (3rd Division)
    May 24, 1973.
    Robert Emmett Lee, of River Forest, for appellant.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE McNAMARA.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Harris, Defendant-Appellant.
    (No. 56812;
    First District (1st Division)
    May 29, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks, Assistant Public Defender, and Charles Linn, of Lawndale Neighborhood Legal Services, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Sharon Grossman, and Barry Rand Elden, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

HALLETT, J., took no part.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People ex rel. Edith Naughton et al., Plaintiffs-Appellants, v. The Department of Public Aid et al., Defendants-Appellees.
    (No. 56733;
    First District (2nd Division)
    May 15, 1973.

      Sheldon H. Roodman, Community Legal Counsel, of Chicago, for appellants.
    William J. Scott, Attorney General, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order striking and dismissing Counts II and III of plaintiffs’ complaint. Those counts sought a writ of mandamus and declaratory relief requiring defendants to abandon their practice of issuing public assistance payments as of the date of the approval of an application for assistance and to commence issuance of the payments retroactive to the date of application. The sole issue raised on appeal is whether each or any of the plaintiffs had standing to seek the extraordinary relief of mandamus and declaratory judgment.

This action commenced with a one-count complaint by plaintiff Naughton which sought review pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) of a decision by the Director of the Illinois Department of Public Aid denying her application for public assistance payments retroactive to the date of her application. The Cook County Department of Public Aid had approved her application for welfare payments, but had commenced payments as of the date of approval. All administrative remedies were exhausted prior to seeking judicial review. Naughton subsequently amended her complaint with Count II (writ of mandamus) and Count III (declaratory relief on behalf of the class of public assistance applicants), seeking to compel the Department henceforth to issue all welfare payments retroactive to the date of recipients’ applications. Joining in Count II were plaintiffs Harris and Hester. Harris was a recipient of disability payments who had also been denied payments retroactive to the date of her application. She had not exhausted her administrative appeals. Hester joined the action in the capacity of a citizen-taxpayer; she had not applied for public assistance. Count III was joined by Harris, but not by Hester. Defendants moved to strike and dismiss Counts II and III and plaintiff Naughton moved for summary judgment on Count I. Both motions were granted by the trial court. Plaintiffs brought this appeal from the order dismissing Counts II and III, but defendants chose not to appeal from the order granting plaintiff Naughton summary judgment on Count I.

Both in the trial court and on appeal defendants have ascribed separate rationales for the dismissal of each individual plaintiff. With regard to Naughton, a public aid applicant who had exhausted all administrative remedies, it is asserted that her status as an applicant precluded any resort to judicial remedies other than appeal for individual relief pursuant to the Administrative Review Act. With regard to Harris, a public assistance applicant who had not exhausted all administrative remedies, it is asserted that a judicial remedy is precluded by her failure to exhaust. With regard to Hester, who joined the complaint as a citizen-taxpayer, it is asserted that she lacked the interest and affinity requisite for standing to maintain an action for a writ of mandamus. We will consider each of these contentions separately.

Defendants contend that section 2 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 265) and section 11 — 8.7 of the Public Aid Code (Ill. Rev. Stat. 1971, ch. 23, par. 11 — 8.7) limited plaintiff Naughton to review pursuant to the Administrative Review Act. Those statutes provide in pertinent part:

“§ 2 (Scope of Act.) This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed after the effective date hereof.” Ill. Rev. Stat. 1971, ch. 110, par. 265.
“§ 11 — 8.7. Judicial Review. The provisions of the Administrative Review Act, approved May 8, 1945, as amended, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Illinois Department on appeals by applicants or recipients under Articles III, IV or V. The term administrative decision’ is defined as in Section 1 of the ‘Administrative Review Act’.” Ill. Rev. Stat. 1971, ch. 23, par. 11 — 8.7.

It is clear from the language of these statutes that, if the relief sought in Counts II and III of the amended complaint can be characterized as “judicial review of final administrative decisions,” relief which can be secured only by appeal pursuant to the Administrative Review Act, then

Naughton was properly dismissed as to those counts. The term, “administrative decision” is defined by section 1 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264) as follows:

# # #
“‘Administrative decision or ‘decision means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.
* # #
The term ‘administrative decision or ‘decision does not mean or include rules, regulations, standards, or statements of policy of general application issued by an administrative agency to implement, interpret, or make specific the legislation enforced or administered by it unless such a rule, regulation, standard or statement of policy is involved in a proceeding before the agency and its applicability or validity is in issue in such proceeding, nor does it mean or include regulations concerning the internal management of the agency not affecting private rights or interests.”

There is no dispute that the thrust of Naughtons complaint in Counts II and III is an attack upon those Department of Public Aid regulations which preclude welfare payments retroactive to the date of a recipients application. Applying the above statute, it follows that Counts II and III were appeals from an “administrative decision” only if the contested regulations were “involved in a proceeding before the agency and its applicability or validity [was] in issue in such proceeding.” The issue devolves to one of statutory construction.

We believe that the phrase, “involved in a proceeding before the agency” should be construed as “involved in a pending proceeding before the agency.” Such a construction observes the apparent legislative intent to preclude litigants in administrative proceedings, where the validity or application of a rule or regulation is being challenged, from prematurely abandoning their challenge in the agency in order to reassert it in the courts. Tactics of that nature are wasteful of administrative resources and avoid imminent administrative determinations which might well obviate the need for other legal relief. Such a construction is also harmonious with- three well established tenets of administrative law. First, whereas a contrary construction would effectively prevent á public assistance applicant from seeking a generally binding judicial ruling on the constitutionality or validity of a rule or regulation promulgated by the Department of Public Aid, abundant Illinois authority supports the right of one to challenge the validity or constitutionality of a statute on its face without resort to related administrative remedies. (Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270, Suburban Ready-Mix Corp. v. Village of Wheeling, 25 Ill.2d 548, 185 N.E.2d 665.) Although these cases typically involve zoning matters, their expressed rationale is equally applicable to non-zoning issues. Nor is their reasoning unique to challenges to statutes and ordinances rather than to administrative rules and regulations. Regulations of administrative agencies, passed pursuant to statutory authority, have the force and effect of statute. (Williams v. New York Central R.R., 402 Ill. 494, 501, 84 N.E.2d 399; Margolin v. Public Mutual Fire Ins. Co., 4 Ill.App.3d 661, 666, 281 N.E.2d 728.) Second, one need not engage in patently useless or foredoomed administrative appeals. (Herman v. Village of Hillside, 15 Ill.2d 396, 408, 155 N.E.2d 47; Westfield v. City of Chicago, 26 Ill.2d 526, 187 N.E.2d 208.) Pursuant to its own written regulations, the Department of Public Aid has consistently denied retroactive welfare payments and that practice has been upheld at the highest level of administrative review. To expect each and every public assistance applicant to engage in the time consuming and expensive administrative review process to secure a predictable outcome would impose a ritualistic and unnecessary burden upon those applicants. Third, it has been held that one is not limited to administrative relief if the dispute involves only a purely legal issue. (Bank of Lyons v. County of Cook, 13 Ill.2d 493, 495, 150 N.E.2d 97; Nolan v. Fitzpatrick, 9 N.J. 477, 89 A.2d 13.) This rule is consonant with the underlying rationale for requiring exhaustion of administrative remedies prior to seeking judicial relief. Administrative agencies are usually composed of individuals who bring to their duties prior expertise in the regulated field or who have developed such expertise during their period of service. Complicated and technical issues of fact can then be determined in the first instance by expert judgment. However, the narrow range of expertise which renders administrative agencies uniquely qualified to address themselves to fact issues often leaves them uniquely unqualified to resolve purely legal issues. The case at bar is illustrative. We fail to see how any reviewing body within the Department of Public Aid is more qualified than the trial court below to determine the validity of the regulations which have been challenged.

We therefore hold that it was the intent of our legislature that the phrase, “involved in a proceeding before the agency” means “involved in a pending proceeding before the agency.” In the case at bar there was no pending proceeding by plaintiff Naughton challenging the contested regulations at the time she amended her complaint with Counts II and III. Thus, her amended action did not seek review of an “administrative decision,” and she was not limited solely to administrative remedies and review pursuant to the Administrative Review Act. It was error to dismiss Counts II and III as to plaintiff Naughton.

The only difference between the postures of plaintiff Naughton and of plaintiff Harris is that the former exhausted all administrative remedies and the latter did not. This difference is of no consequence under the facts at bar and as we have interpreted the relevant statutes. No proceeding by plaintiff Harris challenging the contested regulations was pending at the time she joined in Counts II and III. Thus, her action did not seek a review of an “administrative decision,” and she was not limited solely to administrative remedies and review pursuant to the Administrative Review Act. In addition, the three tenets of administrative law which we discussed in support of our statutory construction, apply directly to plaintiff Harris to relieve her of her obligation to fully exhaust her administrative remedies. It was error to dismiss Counts II and III as to plaintiff Harris.

Plaintiff Hester joined Count II (writ of mandamus) as a citizen-taxpayer. The sole issue presented by defendants’ challenge to her standing is whether she had sufficient interest in the subject matter to maintain a petition for writ of mandamus. (Retail Liquor Dealers Protective Ass’n v. Schreiber, 382 Ill.2d 454, 47 N.E.2d 462; People ex rel. Thomas v. Board of Education, 40 Ill.App.2d 308, 188 N.E.2d 237.) We believe that this issue is controlled by the combined authority of People ex rel. Sanaghan v. Swalec, 22 Ill.App.2d 374, 161 N.E.2d 352; and Figures v. Swank, 128 Ill.App.2d 211, 263 N.E.2d 599. In Swalec the plaintiff, also a citizen-taxpayer, brought a petition for writ of mandamus against the trustees of the Village of Calumet Park, praying that the trustees be ordered to appoint a board of fire and police commissioners pursuant to the allegedly mandatory provisions of a statute. The defendants argued that the pertinent statute was designed to protect firemen and policemen and that the plaintiff, who did not claim to be an actual or potential member of those two groups, had been deprived of no benefits conferred by the statute and thus had no standing to bring the action. The court cited with approval the case of Payne v. Staunton, 55 W.Va. 202, 46 S.E. 927, and elaborated as follows:

“We agree with the reasoning of that court and think it is applicable to our situation. The purpose of art. 14 of ch. 24 is to promote the efficiency and capability of the police and fire departments; the application and rentention of qualified persons is encouraged. People ex rel. Cadell v. Board of Fire & Police Com’rs, 345 Ill.App. 415. For example, it provides for appointment only after an examination (§ 14 — 6) and for removal only after a hearing on charges (§ 14 — 11). The public has a direct interest in the quality of its policemen and firemen. Where there is a pubfic interest a citizen may bring mandamus proceedings. Retail Liquor Dealers’ Protective Ass’n of Illinois v. Schreiber, 382 Ill. 454.” (22 Ill.App.2d at 377.)

Whether or not the disbursement of pubfic assistance payments is a matter concerning pubfic interests and rights was determined in Figures v. Swank, supra. At issue was whether the following portion of section 12 — 4.11 of the Public Aid Code was mandatory or permissive:

“If recipients [of financial aid] can obtain adequate shelter only if a security deposit is given the landlord, the Department may furnish one month’s rent as a security deposit.”

The court recognized the rule of construction that the word “may” in a statute will be construed to mean “shall” whenever “the pubfic interest and right are concerned or a pubfic duty is imposed upon pubfic officers and the pubfic or third persons have a claim de jure that the power shall be exercised.” (128 Ill.App.2d at 216.) To the contention of the defendants that the payment of security deposits is of interest only to the individual landlords and pubfic assistance recipients, and is not a matter of pubfic interest, the court responded as follows (128 Ill.App.2d at 217):

“[T]he enunciated purpose and pervasive theme of the Pubfic Aid Code is to “assist in the alleviation and prevention of poverty and thereby to protect and promote the health and welfare of all the people of this state.” (Ill. Rev. Stat. 1967, ch. 23, § 1 — 1, par 1.) Prior to 1967, this section read, “assistance and services for persons who are unable to provide themselves with the minimum standard of living compatible with decency and health are hereby declared to be special matters of the pubfic concern and a necessity in promoting the pubfic health and welfare.” (Ill. Rev. Stat. 1965, ch. 23, § 1 — 1.) Since payments of security deposits have been deemed necessary to effectuate these purposes (Report of the Legislative Commission on Low Income Housing, April 10, 1967) and to provide recipients “a livelihood compatible with health and well-being for persons eligible for financial aid,” (Ill. Rev. Stat. 1967, ch. 23, § 12 — 4.11) we believe it is in the pubfic interest that these payments be made where authorized by statute.”

This language is equally appropriate to the issue and the interests at bar. We hold that the proper administration and disbursement of pubfic assistance payments are matters of sufficient pubfic interest and concern to confer standing on a citizen-taxpayer to seek a writ of mandamus to compel payments in strict accordance with authorizing statutes. It was error to dismiss Count II as to plaintiff Hester.

This cause is reversed and remanded to the trial court with instructions to reinstate Counts II and III of the amended complaint as to all three plaintiffs and for further proceedings consistent with this opinion. We express no opinion as to the merits of plaintiffs’ contention that the regulations and practices of the Department of Public Aid contravene provisions of the Illinois Public Aid Code.

Reversed and remanded with directions.

LEIGHTON and HAYES, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People ex rel. Union National Bank of Chicago et al., Relators-Appellees, v. The City of Chicago et al., Respondents-Appellants.
    (No. 57705;
    First District (4th Division)
    May 16, 1973.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quin-lan and Robert R. Retke, Assistant Corporation Counsel, of counsel,) for appellants.

      Thomas P. Sullivan and Richard T. Franch, of Chicago, (Jenner & Block, of counsel,) for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The City of Chicago herein appeals from a judgment entered in the Circuit Court of Cook County ordering a writ of mandamus to issue forthwith. The order was entered subsequent to a hearing held to consider a petition presented by the instant relators seeking to have the Building Department of the City of Chicago process 51 applications for building permits which they had filed.

On January 11, 1972, Martin Duggan, president of Federal Realty Estates Co., presented building permit applications for 51 separate building sites to the Building Department of the City of Chicago. The build: ing sites, upon which single-family residences were to be erected, were located in the vicinity of 121st Street and Ashland Avenue in Chicago, an area zoned R-2, single-family residential. The building permits received preliminary approval when filed; however, due to a plan study of the area where the building sites were located, the Building Department refused further process of the permit applications. Thereafter, a formal request that the Building Department process the applications was sent to the Building Commissioner but elicited no response. The relators therefore filed their petition for mandamus in the Circuit Court of Cook County on February 7, 1972, wherein they requested the court order the Building Department of the City of Chicago to process the 51 applications for building permits which had been filed. At a subsequent hearing, testimony was presented which established that portion of the plan study of the area wherein the 51 building sites in issue were located and upon which the Building Department was withholding process of the applications for building permits had been completed. Further testimony reflected the outcome of the plan study showed the present R-2 zoning classification should remain in effect. This being so, the trial court entered an order on May 10, 1972, issuing a writ of mandamus wherein the Building Department of the City of Chicago was ordered to “receive the Relators plans and applications, to process same, and when found to be in compliance with the Ordinances of the City of Chicago, to issue building permits for the development of the subject properties pursuant to the aforementioned applications and plans filed with the Department of Buildings of the City of Chicago, permitting the Relators to commence construction for their proposed development of the subject properties.”

The sole issue presented for review is whether the relators proved the respondents’ refusal to process the permit applications in question, thereby necessitating maintenance of the instant action in mandamus.

The City of Chicago contends the relators’ case lacks the essential element of a mandamus action, namely, an improper refusal by the authority to issue the permits subsequent to proper application procedures. The basis for this contention lies in the relators’ apparent refusal, based solely on the respondents’ contention and unsupported by the instant record, to present their applications and plans to the Building Department of the City of Chicago a second time.

The City of Chicago has shown no authority in support of their refusal to process the relators’ original permit applications. Moreover, during the course of this appeal, the record reflects the City has continued the original position it took and has still, even upon proper reapplication by the relators, not processed the relators’ permit applications. In view of these facts, we think the respondents’ contention is totally without merit. Moreover, we find the refusal by the respondent Building Department to process the permit applications, submitted and resubmitted by the relators, to be arbitrary, unfair and unreasonable, and hereby hold the writ of mandamus properly issued. Furthermore, because of the unnecessary delay caused to the relators and the lack of defense by the Building Department of the City of Chicago, we hereby waive the requirements of Supreme Court Rule 368(a) staying the mandate and order the mandate to issue forthwith.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed, the mandate to issue forthwith.

Affirmed and mandate to issue forthwith.

BURMAN, P. J., and ADESKO, J., concur.


author: Mr. JUSTICE JOHNSON

text:
    Raul N. Ceja, Plaintiff-Appellant, v. State Police Merit Board et al., Defendants-Appellees.
    (No. 56766;
    First District (4th Division)
    May 16, 1973.

      Edward Kaplan, of Kaplan and Kaplan, of Chicago, for appellant.
    William J. Scott, Attorney General, of Chicago, (Paul J. Bargiel, Assistant Attorney General, of counsel,) for appellees.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The plaintiff appeals from order of the circuit court of Cook County upholding the decision of the State Police Merit Board which had ordered plaintiff’s dismissal. He has appealed to this court, alleging the following points:

A. The State Police Merit Board proceedings in the instant case must be regarded as criminal for purposes of application of Federal constitutional guarantees.
B. Illinois Revised Statutes 1967, chapter 121, section 307.14, required that the charges against the plaintiff be established by only a preponderance of evidence before an order of removal could be entered against him. However, the State Police Merit Board proceedings held in the instant case are “criminal proceedings” and the plaintiffs guilt had to be established beyond a reasonable doubt as failure to do so deprived the plaintiff of the equal protection of the laws to which he was entitled under the fourteenth amendment to the Federal constitution.
C. The decision of the State Police Merit Board was against the manifest weight of the evidence.
D. The decision of the State Police Merit Board was based on findings made by the board that were inconsistent and contradictory in such degree that they were not valid to support the Board’s decision.
E. The plaintiff could not be suspended until after a proper hearing was held, and such is the clear meaning of Illinois Revised Statutes 1967, chapter 121, section 307.14.
F. The plaintiff was entitled to a speedy and public trial by a jury pursuant to the sixth amendment to the Federal constitution and article 2, § 9 of the Illinois constitution.

At about 12:50 A.M., on April 24, 1968, plaintiff observed James Smith on the highway with no red tail light. After chécking with Smith, plaintiff discovered that the latter had no driver’s license on his person. He permitted Smith to drive his car to Smith’s home and went in with him. Smith was told that he would need $100 to post bond. Smith obtained the $100 from his wife and left home in the company of the plaintiff for the purpose of going to the police station to post bond. No bond was ever posted, no arrest record was made for Smith, and plaintiff gave Smith a warning notice for failure to have a proper tail light. Smith testified that he gave the $100 to plaintiff which the latter denied. State police officers are required to fill out daily activity reports which include the number of arrests made and the number of warnings issued. Trooper Ceja’s activity report contains no record concerning Smith and a copy of the warning ticket was not turned into headquarters in accordance with rules. On June 18, 1968, plaintiff was suspended from duty by his superiors and a complaint was filed-with the State Police Merit Board changing various violations of Illinois Revised. Statutes 1967, chapter 121, section 307.16. The Board, at a hearing, made the following findings:

“X_ * * * [W]e conclude that the respondent did not actually know that Smith had no driver’s license until such time as he arrived at the Smith home; that at that time respondent had a duty to issue Smith a traffic ticket, charging him with failure to possess a driver’s license, arrest him and take him to the nearest station for posting bond; that the respondent did arrest Smith but faded to issue a traffic ticket or take him to the station to post bond, and in so doing violated his oath and pledge of office in failing to follow the commands of his superiors and in failure to enforce the laws of the State of Illinois. He also violated rule 160.100 of the State Police Rules and Regulations in failing to perform his duty as a Trooper to enforce all traffic laws. Further, he failed to perform the duties imposed upon him by Chapter 121, Section 307.16, IHinois Revised Statutes of 1967, providing that he is to enforce the provisions of the Illinois Motor Vehicle Law and an Act in Relation to the Regulation of Traffic, all as charged in paragraph number 9 of the Complaint.
2. That since his first actual knowledge that Smith had no driver’s license was acquired at the Smith residence, he is not gmlty of condoning, permitting, encouraging and directing a motorist known to be unlicensed to operate a motor vehicle on the highways of this State as charged in paragraph number 10 of the Complaint.
3. That respondent made an actual arrest of Smith when he took him from his home and started toward the Homewood Sheriffs Police Station without ever making any report to his commanding officer or district headquarters. He is, therefore, guilty of failing to submit as soon as possible, a full and complete report regarding the apprehension of, arrest of and other complete information regarding a traffic violator as required by the rules and regulations, Section 160.740, requiring Troopers to submit reports, and Section 62.410 and .411 which requires an officer making a physical arrest to immediately call his district headquarters, giving pertinent information on the case, all as charged in paragraph number 7 of the Complaint.
4. That the respondent is guilty of violating the rules and regulations of the IHinois State Police, exhibit 15, Section 1798.500, in failing to forward to his commanding officer a copy of the warning ticket issued to Smith for failure to have a red light, as charged in paragraph number 8 of the Complaint.
5. # * # When we consider all of these facts in addition to the fact that respondent released Smith after he had taken him into ■■ custody and arrested him we feel that this conduct militates against the story as told by respondent and tends to verify the story as told by Smith, and that the evidence preponderates in favor of Smith’s story. We, therefore, conclude that the respondent as charged, accepted money for the release of a person apprehended for violation of the law; withheld evidence or information pertaining thereto; took said money, knowing that the giver expected respondent to render him special treatment, all in violation of his oath and pledge of office pledging that his every act will exemplify honesty in thought, word and deed, and in disregard to the obedience of the command of his superiors; Section 62.639 of the Rules and Regulations providing that no officer may accept something of value for the release of any person apprehended for any law violation or the withholding of any evidence, or information pertaining to any illegal activity, and Section 599.000, rule 2 of State Police Rules and Regulations, providing that members of the State Police will not accept directly or indirectly from any person liable to arrest or to complaint or in custody, any gratuities, fees, or other compensation for services rendered in the line of duty, or as an inducement not to fully and completely discharge his duty, all as charged in paragraphs numbered 1, 2 and 4a of the Complaint.
6. That being guilty of the aforesaid matters, he is also guilty of a violation of the following rules and regulations of the Illinois State Police, to-wit: Section 62.880, listing the offenses which shall be considered grounds for discipline of any officers so offending; 62.881 — Any and all conduct unbecoming a police officer; 62.883 —Neglect of duty; and 62.884 — Inattention to duty.
7. That in giving a false written statement, Exhibit number 11, to his commanding officers he, in connection with an official investigation, is guilty of failing or refusing to make a complete and truthful statement, as charged in paragraph number 16 of the Complaint.
# # #
After giving consideration to all of the facts, it is our unanimous decision that the Superintendent of State Highway Police is ordered to discharge respondent from the rolls of the State Highway Police as of the close of business June 18, 1968.”

In Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303, the court said:

‘We have also held that it is not within the province of the court to disturb the findings of fact made by an administrative agency unless manifestly against the weight of the evidence, but, on the other hand, if the finding of the administrative agency is against the weight of the evidence, it is the duty of the court to set aside the decision of the administrative agency. Illinois Central Railroad Co. v. Franklin County, 387 Ill. 301; Liberty Foundries Co. v. Industrial Com. 373 Ill. 146; Brotherhood of Railroad Trainmen v. Elgin, Joliet and Eastern Railway Co. 374 Ill. 60.
“* * * [T]he charges in cases of this kind need be proved by only a preponderance of the evidence and need not be proved beyond a reasonable doubt. Sundquist v. Hardware Mutual Fire Ins. Co. 371 Ill. 360.
“It should be further borne in mind that while the proceedings in this particular cause are civil proceedings, conduct constituting a crime is charged. WhUe we adopt and hold that the charge need only be proved by a preponderance of the evidence, in accordance with the rule heretofore enunciated, we believe that the evidence of guilt should be clear and convincing.”

In Schwarze v. Board of Fire and Police Comm’rs (1964), 46 Ill.App.2d 64, 196 N.E.2d 724, the court said:

“Review of administrative findings in Illinois are governed by the Illinois Administrative Review Act. This act is patterned after the Federal Act and a similarly large body of law has developed in this State with respect to the scope of review upon appeal from' administrative decisions. While the courts will review aU questions of fact presented by the record a court is not privileged to substitute its judgment for that of the administrative agency if there is sufficient evidence in the record to support the agency’s findings. Lorenson v. County Board of School Trustees of Piatt County, 13 Ill.App.2d 468, 142 N.E.2d 493; Jefferson Ice Co. v. Industrial Commission, 404 Ill. 290, 88 N.E.2d 837.
An appellate court, on review of administrative proceedings should not disturb the findings of fact of the administrative body unless these are manifestly against the weight of the evidence. This requires that an opposite conclusion be clearly evident. Rude v. Seibert, 22 Ill.App.2d 477, 483, 161 N.E.2d 39. Evidence in cases is often conflicting and the mere fact that an administrative agency rules on evidence which is conflicting cannot be made the grounds for reversal by a reviewing court. The review of the transcript must disclose a clear lack of substantial evidence. A careful review of the transcript in this case discloses no such lack of substantial evidence in the record. The mere conflict of testimony between the witnesses as to the appearance and behavior of plaintiff does not justify a conclusion on the part of the court that the findings of the Board were contrary to the manifest weight of the evidence.
The Police Board was the proper body for the receipt of evidence and a court cannot substitute its own judgment for that of ¡ the Board where substantial evidence was presented in the record.”

Senior Circuit Judge Latham Castle of the U.S. Court of Appeals, 7th Circuit, said in Linwood v. Board of Education (1972), 463 F.2d 763, 770:

“The complaint does assail the constitutional adequacy of the hearing and decisional procedures because of failure to provide that to warrant expulsion the charge be proved beyond a reasonable doubt. But this presented a legal issue with respect to the standard of proof to be required — not a factual issue. Moreover, examination of the transcript demonstrates that the Board’s conclusion was not contrary to the manifest weight of the evidence. And insofar as sufficiency of the evidence to sustain administrative action is concerned that is the recognized Illinois test. Cf. Drezner v. Civil Service Commission, 398 Ill. 219, 75 N.E.2d 303; Schwarze v. Board of Fire & Police Com'rs., 46 Ill.App.2d 64, 196 N.E.2d 724. And it presents no federal constitutional problem.”

The record reveals that plaintiff made no demand for jury trial at the hearing before the State Police Merit Board. Therefore, we need not pass on that question at this time.

The findings of the State Police Merit Board were not against the manifest weight of the evidence. The mere existence of conflicting testimony is not a sufficient basis to invalidate an administrative agency’s decision as being against the manifest weight of the evidence.

The State Highway Police Act (Ill. Rev. Stat. 1967, ch. 121, sec. 307.13) gives the superintendent of highway police the general right to discipline members of the State Highway Police and the specific right to suspend an officer for 30 days without filing any written charges or giving the suspended officer a hearing. Plaintiff was suspended by his superiors and proper charges were later filed in accordance with Section 14 of the Act.

For the foregoing reasons the order of the trial court upholding the decision of the Police Merit Board discharging plaintiff from his duties is affirmed.

Judgment affirmed.

ADESKO and DIERINGER, JJ., concur.