author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY GOSSE, Defendant-Appellant.
    Second District
    No. 82-829
    Opinion filed November 22, 1983.

      Tomas M. Magdich, of Dixon, for appellant.
    Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

On September 13, 1982, a circuit court jury of Lee County found the defendant, Timothy Gosse, guilty of the crime of reckless conduct (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a)). He was sentenced to a term of probation for one year. The information in substance charged that he committed the offense of reckless conduct, in that his conduct caused great bodily harm to Diane Matheny, a passenger in his jeep, when he attempted to make a right hand turn traveling at an excessive rate of speed on land used to excavate gravel, thereby causing the jeep to flip over and in that manner causing great bodily injury to Diane Matheny. Ms. Matheny in fact died as a result of this incident. This appeal followed. We reverse.

At trial, a witness, Pamela Knapick, testified to a meeting in the city of Rochelle of the defendant, the decedent, Terry Bowers and herself. The four went to the gravel pit area in defendant’s jeep. Upon arrival they each had a beer. They drove around and up and down small hills. They stopped on top of a hill whereupon they twice passed a pipe containing cannabis. The defendant then drove down the hill to level ground and started to go around the hill when the incident occurred. Knapick testified that the defendant drove more or less carefully; that he did nothing unusual in turning the wheel, was traveling around 10 to 20 miles per hour; that the defendant was not under the influence of alcohol or cannabis. James McCaslin, the Rochelle fire chief, testified he could detect the odor of alcohol at close range. Officer Jack Wells could likewise detect alcohol from three to four feet. In the gravel pit area the level ground was made up of pea gravel and sand, and was not as compact as an ordinary gravel road.

In the defendant’s case his father testified that prior to the incident, he and the defendant had repaired the brakes due to the fact that upon getting wet the vehicle pulled to the right on application of the brakes. Defendant testified that during his driving in the gravel pit, he drove through a creek, which was IV2 to two feet deep. He further testified that he may have been traveling 30 miles per hour. The defendant testified that as he was going to turn left, he applied the brakes and the jeep started rolling.

Defendant contends on appeal: (1) that the court erred in not granting his motion in limine to exclude evidence of his consumption of alcohol and cannabis use; (2) that reckless conduct is an inappropriate charge where .the victim dies; and (3) that the proof failed to show that the defendant acted recklessly.

Defendant in advance of trial filed a motion in limine to prevent the State from introducing the evidence of alcohol and cannabis use. The defense contends that such evidence is not admissible unless supported by evidence showing that his mental or physical faculties were impaired. The State takes the position that as long as it did not allege intoxication in charging the offense or tender an instruction thereon, it did not have to prove intoxication and argues further that it did not imply that he was intoxicated. The State contends that the proof of drinking and smoking the cannabis, alone, was relevant to the issue of recklessness. On this point the State relies upon People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629, and People v. Chew (1977), 45 Ill. App. 3d 1024, 360 N.E.2d 417. These cases would appear to be inapposite, as in them both, the defense failed to object to the introduction of this evidence, and further in Farris there appeared to be a heavy consumption of alcohol.

There appears to be no Illinois authority precisely dealing with the issue of whether a negligible consumption of intoxicants is relevant to the issue of recklessness without a further showing that defendant was intoxicated or this consumption impaired his faculties.

A person commits reckless conduct where he “causes bodily harm to or endangers the bodily safety of an individual by any means *** if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a).) A person performs acts recklessly “when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) The mental state of recklessness is to be inferred from all of the facts and circumstances in the record and whether the given conduct is reckless is a fact question for the jury to decide. People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024.

Evidence of intoxication is permissible in criminal prosecutions charging recklessness, and is probative of this issue. People v. Davis (1982), 105 Ill. App. 3d 129, 133, 434 N.E.2d 13; People v. Farris (1980), 82 Ill. App. 3d 147, 156, 402 N.E.2d 629; People v. Miller (1979), 75 Ill. App. 3d 775, 778, 394 N.E.2d 783.

In civil litigation it is impermissible to make innuendos of intoxication or otherwise offer evidence of drinking unless there is offered evidence of actual intoxication. (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 914, 410 N.E.2d 249.) There must be a showing that the conduct of the individual was affected by the alcohol. (Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 466, 392 N.E.2d 693.) There must be evidence that the alcohol impaired the party’s mental and physical faculties. 73 Ill. App. 3d 462, 466, 392 N.E.2d 693; Shore v. Turman (1965), 63 Ill. App. 2d 315, 322-23, 210 N.E.2d 232.

These rules emanate from civil cases, and we have found no criminal case that rules precisely that it is error to allow evidence of drinking without proof of intoxication. There are criminal cases that allow the admission of the consumption of alcohol as relevant evidence of intoxication, which intoxication would be evidence dealing with the appropriate mental state for there to be recklessness. (See, e.g., People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024 (although the defendant admitted to having drunk three 12-ounce bottles of beer, there was no evidence establishing his intoxication); People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476, aff’d sub nom. People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447 (State failed to prove beyond a reasonable doubt that defendant was intoxicated because it did not show any overt act by the defendant evincing intoxication); People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300 (opinion testimony established that defendant was intoxicated); People v. Gray (1972), 7 Ill. App. 3d 526, 288 N.E.2d 26 (ample evidence of intoxication where the defendant drank in bars for a good portion of a six-hour time period); People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629 (heavy drinking established reckless conduct).) Though this appears contradictory, a review of these cases reveals a focus on the amount of alcohol consumed leading to the inference that the defendant was intoxicated. Clearly evidence of intoxication is probative of the issue of recklessness. People v. Miller (1979), 75 Ill. App. 3d 775, 777-78, 394 N.E.2d 783.

We favor a rule that would preclude the State from offering evidence of drinking alcoholic beverages or the use of narcotics without further evidence tying these facts to an inference of intoxication, i.e., that the defendant’s mental or physical faculties were impaired as a result of this consumption. We deem evidence of a nominal consumption of alcohol and cannabis without more or any showing that the defendant’s mental and physical abilities were impaired is so inflammatory as to constitute reversible error. See Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 270, 443 N.E.2d 1085; Parrish v. Donahue (1982), 110 Ill. App. 3d 1081, 1085, 443 N.E.2d 786.

The State refers to the case of Huff v. State (1943), 68 Ga. App. 799, 24 S.E.2d 227. There the court held that evidence that defendant had been drinking without evidence that he was intoxicated is admissible in a reckless driving prosecution “to prove all of the circumstances at the time of the alleged criminal act *** of the defendant.” (68 Ga. App. 799, 800, 24 S.E.2d 227, 228.) The court continued that “[t]he defendant’s condition, together with his movements and conduct at the time of the alleged criminal act, was a circumstance of such a character, which, when taken in connection with other circumstances according to the common course of events, tended to establish the truth of the matter in issue and was relevant.” (68 Ga. App. 799, 800, 24 S.E.2d 227, 228.) Upon reading the opinion it is evident that there were additional facts relied upon apart from the testimony of a witness to the effect that the defendant had been drinking but was not drunk. The reviewing court did not set forth the facts at trial. Thus it is unclear whether the evidence established that the defendant had consumed an excessive amount of alcohol. The quoted portions of the opinion, however, indicate that there may have been other evidence supporting such an inference. Furthermore, counsel for the defendant objected to this evidence based upon other theories than the question of whether this evidence was relevant. We do not find the Huff case to be that instructive.

The admissibility of evidence lies within the sound discretion of the trial court. (People v. McQueen (1983), 115 Ill. App. 3d 833, 837, 450 N.E.2d 921.) However, in the instant case there was an abuse of discretion in admitting evidence of drinking and the use of cannabis. There was no evidence supporting an inference that this consumption in any way affected the defendant’s ability. Evidence of this nature has a prejudicial impact and should not have been submitted.

We next turn to the defendant’s contention that he was not proved guilty beyond a reasonable doubt. Reckless conduct occurs where a person “consciously disregards a substantial and unjustifiable risk [which causes bodily harm and this] disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.

Recklessness is a jury question (People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024), and a reviewing court will not set aside a jury verdict unless the evidence is so palpably contrary to the verdict so as to create a reasonable doubt of guilt. People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d 666; People v. Callahan (1978), 60 Ill. App. 3d 1020, 1024, 377 N.E.2d 171.

Proof of negligence alone cannot sustain a finding of recklessness. (People v. Hawn (1981), 99 Ill. App. 3d 334, 338, 425 N.E.2d 1024.) The State must further establish circumstances by which the negligent conduct evinces a conscious disregard of a substantial risk likely to cause bodily harm and under which a reasonable person would have acted differently under the same situation. People v. Bolar (1982), 109 Ill. App. 3d 384, 392, 440 N.E.2d 639; People v. Luttmer (1977), 48 Ill. App. 3d 303, 305, 362 N.E.2d 1093.

Proof of a conscious disregard of risk may be established by the physical condition of the driver and his manner of operating the vehicle. (People v. Davis (1982), 105 Ill. App. 3d 129, 133, 434 N.E.2d 13.) Excessive speed alone is not always sufficient to establish recklessness (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931, 382 N.E.2d 1300), but when combined with evidence of intoxication may convert ordinary negligence into recklessness and thus criminal conduct. People v. Bolar (1982), 109 Ill. App. 3d 384, 392, 440 N.E.2d 639; People v. Davis (1982), 105 Ill. App. 3d 129,133, 434 N.E.2d 13.

There was no evidence that defendant drove at an excessive rate of speed. He testified he was traveling 30 miles per hour prior to braking, and an occurrence witness, Pamela Knapick, testified it was between 10 to 20 miles per hour. While this speed may have constituted negligence considering the loose gravel condition, there was no evidence that defendant knew of this and that his speed constituted danger and that he acted in conscious disregard of this danger. Where an occurrence may be attributed to either an innocent or criminal cause, the innocent hypothesis should be adopted. (People v. Hawn (1981), 99 Ill. App. 3d 334, 340, 425 N.E.2d 1024.) Here, a conclusion that only negligence, not reckless conduct, occurred should be adopted.

The State seeks to use evidence of prior activity, i.e., driving up and down the hills, no trespassing signs, “rough terrain” of the gravel pit as evidence of his reckless conduct. Though this evidence may be probative, the inquiry should focus on his activities at the time of the incident, and that occurred on level ground.

The State’s failure to prove that defendant was intoxicated or that his faculties were impaired or to present evidence of heavy drinking (cf. People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024; People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629), in light of the testimony that defendant did not appear intoxicated, requires a reversal. While defendant may have been negligent, without proof of intoxication or other circumstances his conduct cannot be characterized as showing a conscious disregard of a substantial and unjustifiable risk which would constitute a gross deviation from the standard of care which a reasonable person would exercise under the circumstances. (People v. Chambers (1972), 8 Ill. App. 3d 430, 434, 289 N.E.2d 476, aff’d sub nom. People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.) It cannot be said that defendant’s conduct was reckless. Therefore, his conviction should be reversed. We do not reach the issue of charging reckless conduct where death results to the victim.

Reversed.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    OLGA MORETTI, Plaintiff-Appellee, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellants—(Tricosis School of Cosmetology, Defendant).
    Second District
    No. 82—864
    Opinion filed November 22, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellants.
    Linda J. Seeley, of Prairie State Legal Services, of Geneva, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This case involves judicial review by the circuit court of Du Page County of a final decision of the Board of Review of the Illinois Department of Labor concerning plaintiff’s claim for unemployment insurance benefits. The Board of Review had determined that the agency was without jurisdiction to hear plaintiff’s appeal from a claims adjudicator’s determination that she was ineligible for benefits. The circuit court reversed the final decision of the Board of Review and ordered that plaintiff be awarded benefits. The Department has taken this appeal from the final judgment Of the circuit court.

Plaintiff is licensed as a beautician. On September 7, 1980, she filed a claim for unemployment insurance benefits after leaving her job as a manager and teaching supervisor at Tricosis School of Cosmetology. A claims adjudicator determined, on September 26, 1980, that plaintiff had left her job because she was reduced from full to part-time work in that “[sjince the claimant could have sought full time work during her off hours, the claimant left work voluntarily without good cause.” On the basis of this finding, the adjudicator ruled her ineligible for benefits. By letter postmarked October 16, 1980, plaintiff filed an appeal from that determination.

Plaintiff appeared before a hearing referee on October 31, 1980, where the circumstances of her termination were extensively reviewed. The hearing referee also questioned plaintiff about the timeliness of her appeal. Her testimony revealed that the claims adjudicator made his decision on September 26, 1980, but plaintiff’s appeal was not postmarked until October 16, 1980. On this basis, the hearing referee concluded that he was without jurisdiction to hear the appeal because it had not been filed within 14 days, the requisite time period pursuant to section 800 of the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 470). On February 3, 1981, the Board of Review affirmed the referee’s conclusion that he lacked jurisdiction to hear the appeal.

Plaintiff filed her complaint for administrative review on March 10, 1981. Return receipts attached to the complaint indicate that on October 19, 1981, registered mail was received by the Board of Review, the Illinois Department of Labor and William M. Bowling, Director of the Illinois Department of Labor. In her appellate court brief, plaintiff states that the registered mail receipts were for summonses sent pursuant to section 3 — 103 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103.) The Department filed a motion to dismiss for lack of subject matter jurisdiction on November 30, 1981, arguing plaintiff’s failure to procure issuance of the summonses within the 35-day time period prescribed in section 3 — 103 required dismissal of the action. In her response to the motion to dismiss, plaintiff admitted that the summonses were issued later than 35 days after the decision of the Board of Review. By order dated January 6, 1982, the court denied defendant’s motion to dismiss on the basis that the statute required only that the complaint be filed within 35 days.

In an additional order dated May 21, 1982, and entered of record on June 4, 1982, the trial court reversed the Board of Review’s finding that plaintiff had failed to file a timely appeal from the claims adjudicator’s decision. The trial court based its decision on the fact that section 800 of the Unemployment Insurance Act had been amended-, effective October 5, 1980, to extend the time for filing such an appeal to 30 days. (Ill. Rev. Stat. 1981, ch. 48, par. 470.) Since plaintiff’s appeal was filed within the amended time period (30 days), the trial court ruled the appeal was timely. In its brief filed "with this court, the Department concedes that plaintiff’s appeal from the claims adjudicator’s decision was timely. Therefore, that issue is not before this court. In addition to reversing the Board of Review’s decision regarding jurisdiction, the trial court ruled in its June 4, 1982, order that plaintiff was entitled to unemployment benefits. The court specifically declined to remand the case to the Department of Labor for an eligibility ruling because it concluded, based upon the record, that no decision other than to award benefits to plaintiff was possible. On July 2, 1982, the Department filed a petition for reconsideration of the May 21, 1982, order. The trial court denied the petition on October 6, 1982, and the Department filed a timely notice of appeal.

The Department initially argues that we must reverse the decision of the trial court because it did not have subject matter jurisdiction of the case. Specifically, the Department contends the trial court was without jurisdiction because the summonses were not issued within 35 days of the date the decision of the Board of Review was mailed as required by the Administrative Review Act. (111. Rev. Stat. 1981, ch. 110, par. 3 — 103.) In response, plaintiff argues that while the summonses were not filed within 35 days, the time period is mandatory and not jurisdictional and can be extended if good cause is shown by the party.

This issue was addressed in two recent decisions of the Illinois Supreme Court. In Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, the court reversed the appellate court’s decision that the plaintiff’s failure to secure issuance of the summonses within the 35-day filing period precluded judicial review. Instead, the supreme court in Cox concluded on the specific facts presented there that the plaintiff had commenced his action in a timely fashion. The relevant facts in Cox were that the plaintiff’s attorney had presented to the circuit clerk the unsigned summonses within the 35-day period, but the clerk did not sign and send them until the 36th day. In support of its conclusion, the Cox court specifically adopted the holding of this court in City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, aff’d (1983), 97 Ill. 2d 378, that the “issuance of summons within the 35-day period was intended to be mandatory and not jurisdictional, and that ‘the purpose of the limitation period was to hasten the procedure in these cases.’ ” Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403-04.

In City National Bank & Trust Co. v. Illinois Property Tax Ap peal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, affd (1983), 97 Ill. 2d 378, the plaintiff sought a reduction in the assessment of its real estate which was denied by the Winnebago County Board of Review. Thereafter, the denial was affirmed by the defendant Board. Following the Board’s decision, the plaintiff filed his complaint in the trial court on the 35th day (a Friday), but the summonses were not issued by the circuit clerk until three days later (a Monday). The plaintiff submitted affidavits stating his attorney had told the deputy clerk on the 35th day of the urgency of sending the summonses that day and the clerk had assured the attorney that while the summonses would not be mailed until the following Monday, they would be made effective on the date the complaint was filed. Presented with these facts, the trial court concluded it had no jurisdiction and thus, dismissed the cause of action.

On appeal, this court reversed. After discussing the appellate court decision in Cox v. Board of Police & Fire Commissioners (1982), 107 Ill. App. 3d 704, 437 N.E.2d 1277, this court analyzed whether any reasonable purpose would be served by requiring these summons as well as the complaint to be filed within 35 days. While finding that the legislature intended the filing of the summons to be mandatory to ensure that dilatory action of the plaintiff would not unduly delay review, the court in City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, affd (1983), 97 Ill. 2d 378, concluded the issuance of the summons within 35 days was not intended to be a jurisdictional barrier to judicial review. The 35-day period for filing the summons, the court reasoned, “was stated to insure that there would not be the same kind of delay that would be possible after the filing of a complaint in other actions under the Code of Civil Procedure.” (108 Ill. App. 3d 979, 983.) Accordingly, we held that if a plaintiff in good faith attempts to have the clerk issue the summons within 35 days and files the complaint within that period, he cannot be deprived on jurisdictional grounds of his right to have his appeal considered. On appeal, the supreme court affirmed, citing its statement in Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, that the 35-day period is not jurisdictional.

City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, and Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, are dispositive of the case at bar. Both cases hold that the 35-day period for issuance of the summons is mandatory. A litigant must show a good faith effort to have the clerk issue the summons within the 35 days to warrant relaxation of the filing period. (See City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 983, 439 N.E.2d 1301, 1304.) Plaintiff in the instant case has shown no good faith effort. In fact, plaintiff offers no explanation for the extremely dilatory issuance of the summonses and presents no factors militating toward the conclusion that plaintiff attempted to secure their issuance within the 35-day period. Thus, we cannot say, as we did in City National Bank, that the litigant “is, in effect, deprived of his right to appeal because of a ministerial officer whom he can persuade but cannot control.” 108 Ill. App. 3d 979, 983.

In an attempt to avoid the conclusion that the trial court in the case at bar was without subject matter jurisdiction to award her unemployment benefits, plaintiff offers several arguments: (1) her complaint was filed within 35 days and the Department did eventually receive the summons; (2) courts should construe the right to appeal liberally to permit resolution of the merits of the case, especially when the important right of a citizen to receive unemployment benefits is at stake; (3) the Department failed to show any prejudice resulting from the tardy issuance of the summons; (4) the Department could have, but did not pursue alternative sanctions short of dismissal of the case. None of these arguments compels the conclusion that the trial court had authority to proceed in plaintiff’s case.

Plaintiff relies on three cases for the proposition that the filing of the complaint alone vests jurisdiction in the circuit court. (Norris v. City of Aurora (1978), 64 Ill. App. 3d 748, 381 N.E.2d 996; Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 297 N.E.2d 316; Hailey v. County Board of School Trustees (1959), 21 Ill. App. 2d 105, 157 N.E.2d 570.) In both Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 437 N.E.2d 1277, rev’d (1983), 96 Ill. 2d 399, and City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 439 N.E.2d 1301, aff’d (1983), 97 Ill. 2d 378, the appellate court addressed and rejected plaintiff’s argument that filing of the complaint within 35 days was alone sufficient to confer jurisdiction. As noted by the appellate court in Cox, none of.the cases cited by the plaintiff here reached the question of whether the summons had been timely issued. Rather, they only resolve “whether new parties, some of which were necessary, could be brought in after the 35-day period, and reviewing courts held they could.” Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 708, 437 N.E.2d 1277, 1280-81, rev’d on other grounds (1983), 96 Ill. 2d 399.

Plaintiff’s second argument, that the statute should be construed liberally to permit a right of appeal here, is unpersuasive. As the basis for her argument, plaintiff cites the appellate court language in City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, 982, 439 N.E.2d 1301, 1304, affd (1983), 97 Ill. 2d 378, to the effect that courts need not apply a statute literally if the result would be inconsistent with that contemplated by the legislature, and courts should construe liberally a right of appeal to permit resolution on the merits. While these are accurate descriptions of certain statutory construction rules, application of these rules to the instant case does not require the conclusion that the court had jurisdiction. The appellate court in City National Bank applied the rule that a statute need not be read literally to reach the conclusion that the issuance of the summonses within the filing period was not jurisdictional. That court noted, however, that the legislative purpose in establishing the 35-day limitation was to ensure that parties would not unduly delay the appeal process. By concluding that the seven-month delay in issuance of the summonses precludes judicial review here, this court is not reaching a result inconsistent with legislative intent. Rather, the result is consonant with the legislative goal of encouraging prompt resolution of appeals from administrative decisions. Similarly, the City National Bank cited the rule regarding liberal construction of the right to appeal as support for its conclusion that the filing of the complaint was jurisdictional, and the issuance of the summons was mandatory. City National Bank did not authorize so liberal an interpretation of the filing requirements as to condone the issuance of summonses seven months after the expiration of the filing period.

Plaintiff also alleges that the Department has failed to demonstrate any prejudice as a result of the delay. This point was discussed by Justice Mills in his dissent in Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 710, 437 N.E.2d 1277, 1282 (Mills, J., dissenting), rev’d (1983), 96 Ill. 2d 399. However, the facts in Cox were different from those present here. There, the summonses were issued on the 36th day and Justice Mills argued that the strict reading of the statute by the majority which precluded a finding of jurisdiction was harsh and unwarranted, especially where “the prejudice to the defendant is nil.” (107 Ill. App. 3d 704, 710, 437 N.E.2d 1277, 1282 (Mills, J., dissenting).) Here, in contrast, plaintiff issued the summonses seven months late. Under these circumstances, the Department should not be charged with the responsibility of demonstrating prejudice, especially where the statute does not by its specific terms impose such a burden.

Plaintiff in her final argument contends that the Department could have, but did not pursue alternatives less drastic than dismissal, such as want of prosecution or an expedited briefing schedule. This argument, however, is unsupported; she fails to cite any cases or statutory language buttressing her position. Since conclusory arguments without any authority do not satisfy the requirement of Supreme Court Rule 341(e) (73 Ill. 2d R. 341(e)) (Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966), this court can consider her argument waived.

In light of our conclusion that the circuit court was without jurisdiction to entertain the appeal from the Board of Review, we need not address the Department’s contention that the trial court erred in refusing to remand the case to the administrative agency for a final decision on the merits of plaintiff’s claim. The judgment of the circuit court of Du Page County is reversed.

Reversed.

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


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES SCOGNAMIGLIO, Defendant-Appellee.
    Second District
    No. 83—158
    Opinion filed November 22, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of WOieaton (Barbara A. Pre-iner, Assistant State’s Attorney, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John F. Donohue, of Oak Brook, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendant, James Scognamiglio, was charged with speeding (Ill. Rev. Stat. 1981, ch. 95 Va, par. 11 — 601), and subsequently entered a plea of guilty to that offense. The trial court placed defendant on supervision, which it terminated instanter, and ordered him to pay a fíne of $13 and $32 costs.

The State appeals (for the right of the State to appeal, see People v. Oswald (1982), 106 Ill. App. 3d 645, 435 N.E.2d 1369) from that portion of the order terminating supervision instanter and contends (1) that the imposition and termination of supervision instanter did not provide the statutorily required reasonable period of supervision, and (2) that supervision is not a statutorily authorized disposition for the Illinois Vehicle Code violation of speeding, a petty offense.

We address first the State’s contention that supervision is not an available disposition for a petty offense such as speeding because a petty offense is defined in section 5 — 1—17 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—17) as “any offense for which a sentence to a fine only is provided.” It cites People v. Jennings (1977), 47 Ill. App. 3d 226, 361 N.E.2d 1160, wherein the appellate court rejected that defendant’s argument that the “fine only” limitation of section 5 — 1—17 prevented imposition of a term of conditional discharge, and held that despite the language of section 5 — 1—17, other provisions of the Unified Code of Corrections (Ill.

Rev. Stat. 1975, ch. 38, pars. 1005 — 5—3, 1005 — 6—2) specifically provide for a sentence of conditional discharge for a petty offense. The State maintains that applying the rationale of Jennings, where, as here, the supervision provision of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1) does not explicitly provide for its applicability to petty offenses, supervision is not an available disposition. We disagree for the reasons that follow.

The Illinois Vehicle Code provides for general speed restrictions. (Ill. Rev. Stat. 1981, ch. 95 Va, par. 11 — 601.) It also imposes a penalty for violations of any provision of the Code for which no other specific penalty is provided under the Code. (Ill. Rev. Stat. 1981, ch. 95½, par. 16 — 104.) This is the case for speeding violations. Section 16 — 104 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 16— 104) further provides that every person convicted of such a violation for which another penalty is not provided shall for a first or second conviction thereof be guilty of a petty offense. The Illinois Vehicle Code provides in section 1 — 300 (Ill. Rev. Stat. 1981, ch. 95½, par. 1 — 300) that certain words and phrases when used in the Code, specifically “petty offense,” shall have the meanings ascribed to them in Article V of the Uniform Code of Corrections.

A petty offense is defined in section 5 — 1—17 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—17) as “any offense for which a sentence to a fine only is provided.” It is thus evident that the sentencing provisions for convictions of general speed restrictions of the Illinois Vehicle Code are dependent on the pertinent provisions of the Unified Code of Corrections. Section 5 — 5—3(c)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(c)(3)) provides that an offender convicted of a petty offense may be sentenced to a period of conditional discharge, a fine, and to make restitution to the victim. While supervision is not specifically authorized under section 5 — 5—3(c)(3), the general statutory provision for supervision under the Unified Code of Corrections is contained in section 5 — 6—1 of the Code. We note that prior to 1976, judges lacked authority to place defendants on supervision (see People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31), but in 1976 section 5— 6 — 1 was amended by Public Act 79 — 1334 to provide for supervision. (See People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) Specifically, the court now may enter an order for supervision if the defendant is not charged with a felony (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c)) and the court is of the opinion that the offender is not likely to commit further crimes, that the defendant and the public would be best served if the defendant were not to receive a criminal record, and that “in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted under this Code.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 6—1(c)(1), (2), (3).

We believe this explicit language in section 5 — 6—1 clearly authorizes supervision for a petty offense under which classification a speeding violation under the Illinois Vehicle Code falls. Where the language of a statute is clear, it will be given effect without resorting to other aids for construction. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674.) Nonetheless, to discover the legislative intent, it is proper to consider the history and course of the legislation (People v. Beam (1979), 74 Ill. 2d 240, 243, 384 N.E.2d 1315), and the debate on this legislation supports the view that supervision under this new legislation was intended as an available disposition for violations of the Illinois Vehicle Code. See 79th Illinois General Assembly, Transcript of Senate Proceedings, Third Reading of Senate Bill 1997, June 23,1976, at 4, 7.

Recent amendments to the supervision provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005— 6 — 1, 1005 — 6—3.1, as amended by Pub. Act 83 — 207, eff. January 1, 1984) will make supervision inapplicable to defendants charged with violating section 11 — 501 of the Illinois Vehicle Code or a similar ordinance provision if previously convicted or assigned supervision for such offense within a five-year period. Since statutory amendments are to be construed together with the original legislation as constituting one law and as part of a coherent system of legislation (see Follett’s Illinois Book & Supply Store, Inc. v. Isaacs (1963), 27 Ill. 2d 600, 605-06, 190 N.E.2d 324), by making a special exception to supervision eligibility for one offense contained in the Illinois Vehicle Code, the legislature further demonstrated that supervision is otherwise an available disposition for other offenses contained in the Illinois Vehicle Code.

Commentators who have examined the supervision provisions of the Unified Code of Corrections also have concluded that supervision is available as a disposition for traffic violations arising under the Illinois Vehicle Code. See Brady, Major Traffic Charges such as DWI: The Double Standard Forged under Distinctions between State and Ordinance Cases, 70 Ill. B.J. 292 (1982); Sullivan, Supervision Comes to All of Illinois, 65 Ill. B.J. 190 (1976).

Accordingly, we conclude that the defendant, who was convicted of a general speed restriction provision of the Illinois Vehicle Code, is eligible for the disposition of supervision under section 5 — 6—1(c) of the Unified Code of Corrections.

Next, we reach the question whether the order imposing and terminating supervision instanter was authorized by statute. Section 5— 6 — 3.1(b) of the Unified Code of Corrections provides:

“(b) The period of supervision shall be reasonable under all of the circumstances of the case, but may not be longer than 2 years.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(b).)

In People v. Oswald (1982), 106 Ill. App. 3d 645, 435 N.E.2d 1369, this court held, in the context of an order of supervision terminated instanter for misdemeanor offenses, that termination of supervision instanter was not authorized by statute because it was a way to avoid the above-cited statute, which requires that the period of supervision “shall be reasonable,” without exercising discretion. (106 Ill. App. 3d 645, 650, 435 N.E.2d 1369.) The defendant reasons, as did the court below, that our opinion in Oswald should not be read to apply to traffic offenses, such as speeding, where because of the volume of the cases it would be impractical, and often unnecessary, to require a reasonable period of supervision.

It is a settled rule of law that the legislature has the authority to set the nature and extent of penalties. Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.) As we stated in Oswald, “[although the legislature has not seen fit to set a minimum period of supervision, the phrase ‘the period of supervision shall be reasonable,’ must be given its ordinary meaning. (People v. Blair (1972), 52 Ill. 2d 371, 373.)” (106 Ill. App. 3d 645, 650, 435 N.E.2d 1369.) There is nothing in this statute nor in its legislative history to indicate the legislature intended that the provision for a reasonable period of supervision should not apply to all offenses, including traffic offenses, for which a disposition of supervision is authorized under section 5 — 6—1(c) of the Unified Code of Corrections (111. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c)). If, as defendant contends, a reasonable period of supervision for traffic offenses imposes impractical and unrealistic consequences upon the judicial system because of the high volume of traffic cases, the inappropriateness of actual supervision of those offenders, and the impracticality of reviewing their driving record at the end of the period of supervision, this is a matter for legislative correction. We conclude that the imposition and termination of supervision instanter as was ordered in the instant case for the traffic offense of speeding is not authorized by statute.

We therefore reverse the judgment and remand the case to the trial court with instructions to vacate that portion of the order terminating supervision instanter and to enter an order in the proper exercise of discretion under section 5 — 6—3.1(b) of the Unified Code of Corrections.

Reversed and remanded with directions.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE WEBBER

text:
    SPRINGFIELD HOTEL-MOTEL ASSOCIATION et al., Plaintiffs-Appellants, v. THE CITY OF SPRINGFIELD et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0251
    Opinion filed December 1, 1983.
    Rehearing denied December 30, 1983.

      Brown, Hay & Stephens, of Springfield (Robert A. Stuart and William E Trapp, of counsel), for appellants.
    Fredric Benson, Corporation Counsel, of Springfield, for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

This case concerns the home rule taxing powers of the city of Springfield; specifically, whether the proceeds collected from a tax imposed upon the rental of hotel and motel rooms may be used by the city for general corporate purposes, or whether such proceeds are restricted to the promotion and development of tourism and conventions.

In 1972 the city adopted an ordinance which in substance provided for a tax upon the use and privilege of renting a hotel or motel room. The tax was to be collected from the renter, and after payment of some of the indebtedness of the Springfield Metropolitan Exposition and Auditorium Authority, the balance of the proceeds from the tax was to be paid into a special fund to promote tourism and conventions in the city.

In 1976 the ordinance was amended to remove the requirement that the tax proceeds be used for the development of tourism and instead diverted the tax proceeds into the city’s treasury. Provision was made for payment to the exposition authority and the balance was to be retained until lawfully appropriated and expended by ordinance.

In 1982 the city adopted its annual appropriation ordinance which provided for the anticipated use of $200,000 of hotel-motel tax receipts in order to balance the city’s budget. Within a few days after the adoption of this ordinance, the plaintiffs, a hotel-motel association and certain operators of hostelries in the city, filed the instant suit against the defendants, the city, its mayor, and its commissioners. After some procedural problems which are not pertinent here, the complaint was amended and dismissed by the trial court on motion of the defendants. This appeal followed.

The amended complaint alleges the history of the ordinances as set forth above and sought as relief: (1) a declaratory judgment that the 1976 ordinance violated the provisions of article VII, sections 6(e) and 6(g), (h) and (i) of the Illinois Constitution of 1970, and section 8— 3 — 14 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 3—14); and (2) a permanent injunction prohibiting the defendants from transferring the hotel-motel tax funds to any fund other than that for the promotion of tourism, conventions and other special events in the city.

It is undisputed that Springfield is a home rule city and thus possesses the power to tax under section 6(a) of article VII of the Illinois Constitution of 1970. Any limitation on that power must be found in section 6(e) which provides:

“A home rule unit shall have only the power that the General Assembly may provide by law *** to license for revenue or impose taxes upon or measured by income or earnings or upon occupations.” Ill. Const. 1970, art. VII, sec. 6(e).

The root question here is whether the Springfield tax is one upon an occupation; if it is not, the city has ample power under section 6(a) to impose the tax without limitation; if it is, then the city must follow the General Assembly guidelines.

Plaintiffs’ principal argument is that the latter alternative is the correct one; that the tax is one upon an occupation, and therefore the city must follow what has been mandated by the General Assembly. This mandate is found, according to plaintiffs, in section 8 — 3—14 of the Illinois Municipal Code, which provides:

“The corporate authorities of any municipality containing at least 25,000 and less than 500,000 inhabitants may impose a tax upon all persons engaged in such municipality in the business of renting, leasing or letting rooms in a hotel, as defined in ‘The Hotel Operators’ Occupation Tax Act,’ at a rate not to exceed 5% of the gross rental receipts from such renting, leasing or letting, excluding, however, from gross rental receipts, the proceeds of such renting, leasing or letting to permanent residents of that hotel, and may provide for the administration and enforcement of the tax, and for the collection thereof from the persons subject to the tax, as the corporate authorities determine to be necessary or practicable for the effective administration of the tax.
Persons subject to any tax imposed pursuant to authority granted by this Section may reimburse themselves for their tax liability for such tax by separately stating such tax as an additional charge, which charge may be stated in combination, in a single amount, with State tax imposed under ‘The Hotel Operators’ Occupation Tax Act.’
Nothing in this Section shall be construed to authorize a municipality to impose a tax upon the privilege of engaging in any business which under the constitution of the United States may not be made the subject of taxation by this State.
The amounts collected by any municipality pursuant to this Section shall be expended by the municipality solely to promote tourism, conventions and other special events within that municipality or otherwise to attract nonresidents to visit the municipality.
No funds received pursuant to this Section shall be used to advertise for or otherwise promote new competition in the hotel business.” Ill. Rev. Stat. 1981, ch. 24, par. 8 — 3—14..

Some brief chronology of history is necessary at this point. In 1967 the General Assembly enacted section 8 — 3—13 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 3—13), which contains provisions essentially similar to section 8 — 3—14, cited above, except that it was limited to municipalities having a population of more than 500,000 inhabitants. The Illinois Constitution of 1970 came next with its home rule taxing powers. Finally, section 8 — 3—14, cited above, was enacted in 1975 and applied to municipalities having a population of more than 25,000 but less than 500,000 inhabitants. It might also be noted, although not material to the instant case, that section 8 — 3—14 was amended by the General Assembly in 1982 to remove the population limitations but otherwise remained the same. Ill. Rev. Stat., 1982 Supp., ch. 24, par. 8 — 3—14.

This forms the basis for plaintiffs’ argument: prior to the adoption of the Illinois Constitution of 1970 with its home rule powers, all municipalities were subject to the “Dillon rule,” which in essence held that they had only such powers as might be delegated to them by the General Assembly. Section 8 — 3—13, concerning the larger cities, was an example of the Dillon rule. The 1970 Constitution intervened, but the Dillon rule was preserved in article VII, section 6(e). The enactment of section 8 — 3—14 subsequent to the adoption of the 1970 Constitution indicates an intent on the part of the General Assembly that a hotel-motel tax is a tax upon an occupation and hence is regulated by delegated powers.

We do not agree. In our opinion section 8 — 3—14 was enacted to allow non-home-rule units of government, within limitations, to impose hotel-motel taxes under the Dillon rule which still applies to them. Home rule units derive their power from section 6(a) of article VII of the 1970 Constitution, unfettered by the Dillon rule.

The leading case on this subject is the recent supreme court decision of Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E .2d 227. There the court struck down a tax by the city of Chicago on the purchasers of professional and commercial services. The court found that taxes upon these services were of the type that the delegates to the Illinois Constitutional Convention wished to limit by adopting section 6(e) of article VII. The court found that this was an occupation tax despite the fact that the city of Chicago expressly stated that it was a tax on the purchasers of the services. In coming to this conclusion the supreme court discussed the interplay of sections 6(a) and 6(e) in depth.

After reviewing the constitutional provisions and statements of the delegates to the constitutional convention, the court in Commercial National Bank found that sales and excise taxes were clearly within the grant of the power “to tax” conferred upon home rule units by section 6(a) of article VII of the constitution and that section 6(e) of that article did not affect or limit the power of a home rule unit to impose such taxes. However, it was just as clear to the court that a tax on services was an occupation tax limited by section 6(e). As the court noted, the distinction between a sales tax and an occupation tax is not always clear. Both are measured by substantially the same standards and both taxes are generally shifted forward to the consumer, with the business firm serving as a tax-collecting agent. As a result, “[t]he difference between the two taxes is primarily one of legislative intent.” 89 Ill. 2d 45, 66, 432 N.E.2d 227, 237.

As our supreme court noted, it was the clear intent of the constitutional convention delegates that local governments’ power to levy income taxes should be restricted. In order that this restriction should not be easily circumvented, the delegates placed a similar restriction on the use of occupation taxes. The delegates feared that a tax on various occupations would accomplish the same result as an income tax. It is clear that the restriction on occupation taxes would apply to a tax on services. The services of doctors, dentists, lawyers, accountants, stock brokers, and real estate and insurance agents are commonly understood to be included in “service” occupations.

On the other hand, a sales tax is commonly understood to be a tax on the sale of tangible property. Such a tax was not meant to be restricted by section 6(e) of article VII.

A tax on the use of a hotel room appears to fall somewhere in between these clearly defined extremes. The question of whether this tax is an occupation tax or not must then be answered by resorting to the intent of the delegates at the constitutional convention.

In the Commercial National Bank decision, the supreme court quoted the report of the Local Government Committee to the constitutional convention. The report contained examples of taxes that would be permissible under the general powers of a home rule unit. The examples included taxes on gasoline, hotel rooms, liquor, food and drugs. The court noted that these were taxes “which the constitutional convention perceived to be within the power of home rule units to impose, and were considered as not being limited by the restrictions of section 6(e) of article VII.” 89 Ill. 2d 45, 63, 432 N.E.2d 227, 235.

The court also quoted a delegate who stated that either a “ ‘sales or use tax’ ” could be properly imposed by a home rule unit. (Emphasis added.) 89 Ill. 2d 45, 56, 432 N.E.2d 227, 232.

The intent of the delegates seems clear. The use of a hotel room is specifically grouped with a list of tangible goods which the convention viewed as freely taxable under section 6(a) of article VII of the Illinois Constitution. While not as tangible as the other exam-pies, the use of a hotel room involves the use of many tangible objects. The rental of a hotel room can certainly be distinguished from the purchase of a lawyer’s or doctor’s services.

Moreover, a series of supreme court cases have distinguished allowable section 6(a) taxes from the restricted section 6(e) taxes. These cases were concisely reviewed in Commercial National Bank:

“In S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, a tax imposed upon the sale of cigarettes was upheld against the challenge that it was an occupation tax which could not be levied without a grant of authority from the General Assembly as required by section 6(e) of article YII of the Constitution. In Mulligan v. Dunne (1975), 61 Ill. 2d 544, a tax of a fixed amount per gallon on the retail sale of alcoholic beverages was upheld against the contention that it was an occupation tax. In Town of Cicero v. Fox Valley Trotting Club, Inc. (1976), 65 Ill. 2d 10, an ordinance was upheld which imposed a flat-rate tax of 10 cents for each person witnessing, participating in, or attending a place of entertainment. It was contended that this constituted an occupation tax. In Kerasotes Rialto Theater Corp. v. City of Peoria (1979), 77 Ill. 2d 491, a tax of 2% of the price of admission to amusements was held not to be a tax upon occupations. In Jacobs v. City of Chicago (1973), 53 Ill. 2d 421, a tax was imposed upon the use and privilege of parking a motor vehicle upon or in a parking lot or garage. The tax was challenged as an attempt to license for revenue, which was beyond the taxing authority of home rule units under section 6(e) of article VII, unless authorized by the General Assembly. This court upheld the tax. Here, as in the other cases, the tax was clearly within the scope of the examples set out in the majority committee report. There is no distinction between the tax on a hotel room noted in the examples given and a tax on the use of a parking place for a vehicle.” (Emphasis added.) 89 Ill. 2d 45, 59, 432 N.E.2d 227, 233.

We are thus led to the conclusion that Commercial National Bank controls this decision and that the Springfield tax is a tax upon the use of tangible personal property and not upon an occupation. The city is then free to dispose of the tax proceeds as it sees fit under section 6(a) of article VII; it is not constrained by section 6(e) of article VII.

Our opinion is not altered by the recent case of Waukegan Community Unit School District No. 60 v. City of Waukegan (1983), 95 Ill. 2d 244, 447 N.E.2d 345. In that case the supreme court struck down certain local taxes on utility services and expressly followed Commercial National Bank. We find some language in Waukegan pertinent:

“Undoubtedly the North Shore Gas Company and Commonwealth Edison Company provide the products of gas and electricity to their respective customers. However, those products are provided as a part of a service to the utilities customers. The argument of defendants that Illinois Bell provides the product of ‘message units’ is not persuasive. But assuming that the argument is accepted, the message units are also provided as part of telephone service to consumers. That service includes the maintenance of facilities and equipment that allows the customers to use their telephones and light and heat their homes. The term ‘service,’ in the context of Illinois tax law, has generally been held to include all ‘sales’ transactions other than sales of tangible property. (See, e.g., Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189.) It is our conclusion today that in accord with the Commercial National Bank holding that article VII, section 6(e), of the 1970 Constitution prohibits all taxes applicable to transactions principally consisting of the sale of ‘services,’ the taxes at issue today are taxes on the sale of services and are therefore prohibited.” 95 Ill. 2d 244, 253-54, 447 N.E.2d 345, 349.

To paraphrase, if a product is only incidental to a service, it is a service tax and subject to the restrictions of section 6(e) of article VII. The corollary is that if the service is only incidental to the product, it is a sales or use tax which may be freely applied under section 6(a) of article VII.

In the case of the rental of a hotel or motel room, it is our opinion that any service, e.g., maid service, television, telephone, et al., is only incidental to the use of the tangible property, i.e., the structure and the appointments and accouterments in the room.

Plaintiffs’ next argument revolves about the concepts of the exercise of powers concurrently or exclusively. These are found in sections 6(g), 6(h), and 6(i) of article VII of the Illinois Constitution of 1970 as follows:

“(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (1) of this section.
(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (1) of this Section.
(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.”

A brief examination of section 8 — 3—14 of the Illinois Municipal Code, cited above (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 3—14), in the light of these constitutional provisions is appropriate.

Section 6(h) by its own terms is inapplicable. It provides that the General Assembly may limit a home rule unit in any power or function “other than a taxing power.” It is just such a power which is in question here, and therefore the General Assembly cannot constitutionally claim exclusive exercise.

Section 6(i) deals with concurrent exercise of powers. It is admitted by all parties that the tax under section 8 — 3—14 is an occupation tax. We have already held that the Springfield hotel-motel tax is not. There is no basis for concurrency in such a situation. Furthermore, the State tax on hotels and motels which is found in section 1 et seq. of the Hotel Operators’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 481b.31 et seq.) is also clearly an occupation tax. Again, there is no basis for concurrency between two different taxes.

It is also of noteworthiness that section 6(i) requires the General Assembly to limit specifically any concurrent exercise of power and to declare specifically the exercise of its exclusive power. No such limit nor declaration appears in either section 8 — 3—14 of the Illinois Municipal Code or any section of the Hotel Operators’ Occupation Tax Act.

Section 6(g) is of no assistance to the plaintiffs. It requires a three-fifths majority of the members of each house in the General Assembly to deny or limit the taxing power. No contention is made that this requirement was met in the enactment of section 8 — 3—14, and an examination of the journals of both houses leads to the same conclusion. Furthermore, the supreme court has repeatedly held that in order to limit a home rule unit’s powers under section 6(g), the legislature must expressly so state. (Rozner v. Korshak (1973), 55 Ill. 2d 430, 303 N.E.2d 389; Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6; Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 343 N.E.2d 919; City of Rockford v. Gill (1979), 75 Ill. 2d 334, 388 N.E.2d 384.) No such expression appears in section 8 — 3—14.

In short, Springfield’s ordinance finds its provenance in section 6(a) of article VII of the Illinois Constitution of 1970 and it is not limited by sections 6(e), 6(g), 6(h) nor 6(i).

Plaintiffs’ final contention is that if this case were remanded for a trial on the merits, they could show that when the 1972 ordinance was enacted, the declared intent of the Springfield council was to promote tourism. Such evidence would be immaterial. Obviously by 1976 the council had changed its mind as it had a right to do under section 6(a) of article VII.

Plaintiffs have also argued that if the hotel-motel ordinance withstands constitutional attack, there will be no end to the proliferation of local taxes. Such a possibility exists without doubt, but its resolution is properly assigned to the political rather than the judicial arena.

The order of the circuit court of Sangamon County dismissing the plaintiffs’ complaint is affirmed.

Affirmed.

MILLS, P.J., and GREEN, J., concur.


author: JUSTICE HOPF JUSTICE REINHARD,

text:
    NORMA J. DARNELL, Plaintiff-Appellant, v. IMPACT INDUSTRIES, INC., Defendant-Appellee.
    Second District
    No. 82—955
    Opinion filed November 22, 1983.

      REINHARD, J., dissenting.
    James M. Wilson, of Ingemunson & Wilson, of Yorkville, for appellant.
    Stephen J. Nagy, of Witwer, Moran, Burlage & Witwer, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff, Norma J. Darnell, brought this action in the circuit court of Kendall County, seeking compensatory and punitive damages from defendant, Impact Industries, Inc. (Impact). Plaintiff was discharged from her employ with Impact after working there one day. She alleged she was fired for having filed a workers’ compensation claim against her previous employer. After plaintiff presented her case before the jury, the trial court granted defendant’s motion for a directed verdict. Plaintiff contends on appeal that the trial court erred in directing a verdict in favor of Impact.

Plaintiff claims that Impact terminated her when it learned she had filed a workers’ compensation claim with her previous employer, Federal-Huber Corporation (Federal-Huber). Her complaint named both Federal-Huber and Impact as defendants, but Federal-Huber was voluntarily dismissed from the case. Plaintiff also contends the trial court’s basis for granting Impact’s motion for directed verdict at the close of plaintiff’s case was that she failed to state a cause of action. She contends this was improper because the court had previously denied a motion to dismiss for the same grounds, although this occurred before a different judge.

The record reveals that on May 7, 1981, plaintiff submitted an application for employment with Impact. Plaintiff’s application was reviewed and referred to Herb Smith, who interviewed plaintiff. After the interview, plaintiff was told that she was hired and could begin work Monday, May 11, 1981. Plaintiff worked that Monday without incident.

The next day, however, an Impact employee told the personnel department that plaintiff had been injured at work in her previous job at Federal-Huber. Because of this information, Janet Spears, personnel administrator for Impact, contacted Federal-Huber and verified plaintiff’s dates of employment at Federal-Huber and that she had filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). The Impact application form that plaintiff filled out asked: “Have you had a serious illness or injury in the past five years?” Secondly, it asked: “Have you ever received compensation for injuries?” Plaintiff answered “no” to both questions.

A memo signed by Janet Spears dated May 12, 1981, indicates that the personnel manager at Federal-Huber told Spears that plaintiff Darnell had injured her arthritic neck at work when she and a coworker were “playing around” on April 16, 1980. She did not return to work prior to being laid off on July 11, 1980. Spears was also told that Darnell had received benefits from a workers' compensation claim. Spears then contacted Darnell’s employer previous to Federal-Huber. She learned from them that while Darnell had not made a workers’ compensation claim, she had had several lengthy medical leaves. The memo prepared by Spears was admitted as a plaintiff’s exhibit.

On the same day, May 12, an hour after she started her second shift with Impact, plaintiff was called into the office and asked about the previous claim and injury. She conceded that she had filed a workers’ compensation claim against Federal-Huber. However, she urged that she had never received any compensation and she had dismissed the claim. She denied that any of her illnesses were serious and gave the names of her attorney and insurance agents to verify that she had not been compensated. Spears and the others who were present told plaintiff that she would be suspended until Friday, May 15, 1981, so that an investigation could be made. That Friday plaintiff was told she was terminated.

Plaintiff then filed suit against both Impact and Federal-Huber alleging she had been discharged in retaliation for having filed a workers’ compensation claim. As indicated, Federal-Huber was voluntarily dismissed. Impact’s motion to dismiss for failure to state a cause of action was argued by the parties and denied by the trial court. After plaintiff’s evidence was presented, Impact filed a motion for a directed verdict which the trial court granted. Plaintiff appeals.

Plaintiff relies primarily on the case of Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, which established the principle that an employer who discharges an employee in retaliation for that employee having filed a workers’ compensation claim may be liable for both compensatory and punitive damages. In Kelsay, the court noted that the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq. (the Act)) provided a new statutory system for accidental injuries or death of workers in the work place. Under the scheme implemented by the Act the worker gave up his common law right to sue his employer in tort, and the employer gained the benefit of avoiding sympathetic juries who could give high recoveries. The fundamental purpose of the Act was to afford protection to employees by providing them with prompt and equitable compensation for their injuries. Because the enactment of the Act was intended to further sound public policy, the Kelsay court held that it should be upheld and implemented by allowing a cause of action for retaliatory discharge. 74 Ill. 2d 172, 189, 384 N.E.2d 353.

Arguably, the principles enunciated by the court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, are applicable to the instant case. Kelsay established that “an employer’s otherwise absolute power to terminate an employee at will” should not be exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act. (74 Ill. 2d 172, 181, 384 N.E.2d 353.) Although in the case at bar plaintiff fully exercised her rights under the Act prior to commencing work with Impact, she did allege that she was fired for exercising her statutory rights under the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.4(h)).

The relatively new tort of retaliatory discharge was intended to discourage employers from exercising their otherwise absolute power to discharge an at-will employee in a manner that circumvents the employee’s rights under the Act. (Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 920, 450 N.E.2d 1235, 1239.) There are two elements to a claim for retaliatory discharge: at-will employment status and acts that violate public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876; Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 504, 444 N.E.2d 588.) Although Impact characterizes plaintiff’s position as a new hire, there is no dispute that she was an employee of Impact. Plaintiff also claimed Impact performed certain acts which violated public policy. We believe plaintiff presented sufficient evidence to create a factual question for the jury.

Because of the procedural posture of this case, we are not making a determination of whether plaintiff stated a cause of action for retaliatory discharge. We do not address that question nor the public policy issue it raises, and we are only concerned with the narrow question of the sufficiency of the evidence. Our- review of that evidence is further narrowed by the fact that this is an appeal from the granting of a motion for a directed verdict.

In making the determination of whether the dismissal of a claim is proper, the court should accept plaintiff’s allegations as true. (Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, 391 N.E.2d 479.) It has also been held that verdicts ought to be directed “only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504; Hayes v. Alsburg (1978), 72 Ill. 2d 560, 382 N.E.2d 239.

In the instant case plaintiff alleged her discharge was “in contravention of a clearly mandated public policy.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, 881.) Plaintiff’s evidence included her testimony that when she was called into the personnel office she inquired as to the reasons for her discharge and was told she was being terminated for having filed a workers’ compensation claim. This evidence supports the allegations in her complaint. We recognize that at another point plaintiff testified that when she asked why she was being terminated she was told that it was because of the answers she had given to the two questions on the application — one regarding injuries and the other regarding having received compensation. Although this may have been a proper reason for Impact to. have discharged plaintiff, the question of which evidence should be believed was a factual question for the jury’s consideration. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504; First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 11, 448 N.E.2d 256, 263.) Plaintiff also preferred evidence in the form of a memo prepared by personnel administrator Janet Spears which indicated Spears had called plaintiff’s previous employers and asked if plaintiff had filed a workers’ compensation claim while in their employ. This evidence could also support plaintiff’s allegation that she was discharged for having filed a workers’ compensation claim.

Thus, we believe that when all the evidence is viewed in its aspect most favorable to plaintiff, it did not overwhelmingly favor Impact, and we must reverse the trial court’s decision to take this case away from the jury. We recognize that the evidence adduced below could also lead to the conclusion that the plaintiff was fired for having misrepresented information concerning a previous injury or having received compensation for injuries. However, it is just this factual dispute that the jury is best equipped to consider.

For the reasons stated, the judgment of the circuit court of Kendall County is reversed and remanded for proceedings consistent with this order.

Reversed and remanded.

LINDBERG, J., concurs.

JUSTICE REINHARD,

dissenting:

The majority appears to reason that they need not determine whether plaintiff stated a cause of action for retaliatory discharge and “the public policy issue it raises” because the case was decided on a directed verdict for defendant. Instead, they perceive the only question is that of the sufficiency of the evidence. In that posture, they conclude that there is evidence to support “the allegations in her complaint” and conclude there is a factual dispute which the jury is best equipped to consider. However, upon a motion for directed verdict, the sufficiency of the evidence is reviewed in the context of whether it proves a cause of action which would support a verdict. It has been defendant’s position throughout the trial, and on appeal, that plaintiff failed to plead and prove a cause of action. While the sufficiency of the allegations of plaintiff’s complaint is not at issue on appeal since the trial court did not dismiss her complaint, whether the facts adduced support a cause of action based upon the tort of retaliatory discharge, as examined under the Pedrick standard, is certainly before us and requires analysis of the scope of the cause of action for a retaliatory discharge.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, our supreme court recognized that a cause of action for retaliatory discharge existed and was proved under facts which showed that an employer expressly discharged an employee for the reason that she exercised her rights under the Workers’ Compensation Act. The court reasoned that the Act “provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of this State. Consequently, its enactment by the legislature was in furtherance of sound public policy.” (74 Ill. 2d 172, 181, 384 N.E.2d 353.) The court in Palmateer v. International Havester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, held that the tort of retaliatory discharge exists where the employer discharges the employee in retaliation for the employee’s activities, and that the discharge is in contravention of a clearly mandated public policy. (85 Ill. 2d 124, 134, 421 N.E.2d 876.) There, it was alleged in the complaint that an employee was fired both for supplying information to local law enforcement authorities that another employee of the employer might be involved in a violation of the Criminal Code of 1961 and for agreeing to assist in the investigation and trial of the employee if requested.

I have doubts that “retaliation” is involved here since the workers’ compensation claim was filed while plaintiff was an employee of a previous employer and she was not discharged for an activity performed while in the employ of defendant. Nonetheless, I would concede that the right of an employer to terminate an employee under the generally accepted at-will employment rule is subject to exception when such termination is in contravention of a clearly mandated public policy. If, for example, an employee could prove that his employer had a fixed policy to terminate any employee who it learned had previously filed a workers’ compensation claim and exercised rights under the Workers’ Compensation Act, a cause of action for wrongful discharge should lie if such an employee were terminated solely for making a prior claim. Here, I believe, the facts fall far short of that situation, and the trial court correctly granted defendant’s motion for a directed verdict.

The evidence, taken in its aspect most favorable to plaintiff, included her testimony that she was told she was terminated for having filed a workers’ compensation claim. The evidence also showed that defendant’s personnel manager had called plaintiff’s previous employer and asked if plaintiff had filed a workers’ compensation claim while in its employ. The context in which this information was sought and disclosed to defendant was clearly related to the legitimate right of an employer to inquire into the past health and physical condition of its employee. Here, the. proofs showed that plaintiff was just hired, that she had indicated no serious illness or injury in the past five years and that she had stated on her application that she had not previously received compensation for injuries. The evidence also showed that the defendant had been subsequently informed by another employee that the plaintiff had been injured at work in her previous job. The defendant contacted plaintiff’s two prior employers. Her immediate, prior employer, Federal-Huber, related that plaintiff hurt her neck “playing around” on April 16, 1980, and did not return to work prior to her layoff on July 11, 1980. It was also learned that she had filed a workers’ compensation claim. Her employer before that informed defendant that she had several lengthy medical leaves, one for a nervous condition. Only after this information was learned did defendant suspend, and later discharge, plaintiff. Thus, considering the entire testimony in the record, which the majority opinion fails to set out in any detail, but instead relies essentially on two bits of evidence in isolation from its relationship to all the other evidence, it is clear under the evidence that defendant’s inquiries and its later termination of plaintiff were related to her prior condition of health. There is simply no evidence that plaintiff’s termination was motivated by any policy of defendant’s to terminate her based upon her previous exercise of her rights under the Workers’ Compensation Act.

This case illustrates the extent to which an employer can be compelled to defend a suit under facts which, I believe, fully justify the employer’s prerogative to discharge an employee.

I would affirm.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUCILLE FRAZIER, Defendant-Appellant.
    Fourth District
    No. 4—83—0135
    Opinion filed December 5, 1983.

      Carlton M. Kagawa, of Saikley, Garrison & Kagawa, Ltd., of Danville, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Eider man and Thomas W. Lacy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a bench trial, defendant Lucille Frazier was found guilty of theft of a typewriter having a value in excess of $300. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1.) Judge Robinson sentenced her to one year’s probation and ordered that she pay court costs. Defendant appeals from the judgment of the circuit court of Vermilion County. We reverse.

The single issue raised on appeal is whether defendant was proved guilty beyond a reasonable doubt.

The facts may be summarized as follows. Defendant was a receptionist for the Vermilion County State’s Attorney’s office. In February 1982, she began looking for a typewriter for her son Paul. Defendant had a typewriter from her office at her home for the purpose of doing office work. Paul Frazier worked at the Urbana Nursing Home in Ur-bana, Illinois. He asked defendant if he could take the typewriter she had at home to his place of employment. She said that he could not, but he removed the typewriter from the house when his parents were not at home. He returned it after several weeks of cajoling by his parents; and to avoid his father’s threatened visit to Paul’s employer. Defendant and her husband agreed among themselves to look for a typewriter for Paul. Defendant’s daughter, Lori Tucker, mentioned her mother’s interest in buying a typewriter to her 16-year-old brother-in-law, Mark Tucker. Defendant subsequently purchased a typewriter which Mark had removed from Ridgefarm High School. She was charged with theft of the typewriter.

Mark Tucker, testifying under a grant of immunity, stated that in February 1982, he told Lori Tucker that he had found a typewriter. This was not true. Toward the end of February, Lori told him that her mother was looking for a typewriter. He told Lori that he would sell the typewriter he had for $40, and until he obtained a machine to sell her, he told Lori that the typewriter was in the trunk of his brother’s car.

On March 6 or 7, 1982, he broke into the Ridgefarm High School and removed an IBM Selectric II typewriter with a lSVa-inch carriage — the only unplugged typewriter in the typing classroom. He placed the machine on his bedroom dresser and told Lori that night that she could pick the typewriter up from his room. He returned to the Arcade in Ridgefarm, Illinois, later that evening and Lori gave him $40; when he went home the typewriter was gone.

Lori and her husband lived behind the Tucker home in a trailer. Mark testified that his family frequently had items for sale; and that, in fact, his brother had a typewriter and his family had two typewriters.

Lori Tucker testified but was uncertain about the dates surrounding the inquiries about the typewriter and its purchase. She knew that her mother had spoken to several persons in trying to locate a typewriter; she told Mark that her mother was looking for a typewriter. A few weeks later, Mark told her he had a typewriter and would sell it for $40. Between that day and the date of the purchase, he told her that the typewriter was in the trunk of his brother’s car.

On the night of the purchase, she was with her parents at the Arcade in Ridgefarm. After being told by Mark that she could pick up the typewriter from his bedroom, she and her mother did so. No one was at home that evening and only the light in the front room was on. The machine was sitting openly on Mark’s dresser. They placed the typewriter in the truck and returned to the Arcade. Defendant gave Lori $40 to pay Mark; thereafter, defendant and her husband' left the Arcade. Lori gave Mark the money when he returned to the Arcade several hours later.

On the way home from the Arcade, defendant’s husband, John Frazier, Jr., told defendant that the typewriter looked like it was a good deal but, at that price, it would "probably need repairs. On the following day Mr. Frazier took the typewriter to the apartment of another daughter, Diana McDaniel to keep Paul from taking it before he had repaid his parents.

On March 8, 1982, the burglary at Ridgefarm High School was discovered and reported to police. The police report described the typewriter as a dark brown IBM Electric typewriter with a serial No. 26-1685702. The report was turned in at the Public Safety Building on March 8, for transmittal to the State’s Attorney’s office.

In the normal course of events, that report should have been at the State’s Attorney’s office on the morning of March 9. One of defendant’s responsibilities was to organize police reports and log them into a ledger book as they were delivered to the office. Defendant had apparently established this ledger system because the office staff had difficulty locating police reports within the office. Defendant had tried several systems but the problem of getting the police reports entered into the ledger system before the attorneys took them continued.

The police report regarding the burglary at Ridgefarm High School had an identification number of V82-1952; this report was not found in the ledger for the month of March 1982. Examination of the ledger book at trial showed that some of the entries were started and not completed; several pages carried dates but no entries; and there were loose sheets in the book carrying different names and numbers which seem to coincide with case numbers. Another secretary occasionally assisted defendant in logging the reports into the ledger book. The ledger system was abandoned by the State’s Attorney’s office in April 1982.

Defendant acknowledged that she saw the police report on the burglary at Ridgefarm High School.

On March 29, 1982, police officers questioned Mark Tucker. Lori telephoned her mother at work and informed her that Mark had been questioned about a typewriter. When Paul Frazier came to pay for the typewriter, defendant refused to give him the machine as she had become suspicious that it was stolen. She spoke to her husband about this prospect and considered speaking to either the principal of Ridge-farm High School or the police about the typewriter. She did not do so, however, for several reasons: (1) The typewriter she had purchased was tan, not dark brown; (2) Lori had obtained it from a family member; (3) Mark had told Lori that he had a typewriter several weeks before the burglary occurred; (4) the typewriter had been openly displayed at Mark’s home; and (5) she had not thought anyone would sell a stolen typewriter to someone who worked in the State’s Attorney’s office.

Mr. Frazier testified that on the weekend before Easter he told defendant that they would take the typewriter to the high school to determine whether it had been stolen. He stated that defendant had been upset about discussing the matter with anyone because of her employment at the State’s Attorney’s office.

On the morning of Monday, April 12, 1982, Jack Johnson, special agent for the Division of Criminal Investigation, State of Illinois, and John Howard, Vermilion County Sheriff’s Department, contacted defendant at work. She voluntarily gave a statement at that time and, when the first statement proved inaudible for transcription, she went to the Public Safety Building during her lunch hour and gave a second taped statement. Defendant told the authorities that the typewriter was at Diana’s residence and arranged for them to obtain the typewriter from Diana. She also made arrangements for the investigating officers to speak to her daughter Lori.

Defendant testified that she had not thought anything was wrong with the $40 price of the typewriter. She had previously spoken to Bob Payne, county clerk, about the prices of typewriters since items from the courthouse were occasionally bid through his office. He had told her that electric typewriters, including IBM typewriters, had been bid out of his office for $45 to $60. Based upon this discussion and advertisements for used typewriters in the newspaper and on television, she had thought $40 to $60 was a fair price for the typewriter.

Various persons testified that defendant had spoken to them about locating a typewriter for her son. Payne testified that he had sug--gested a price range of $50 to $75 to defendant and had informed her that he would not pay more than $100 for an electric typewriter over five years old because of the expense of repairs. Several other persons testified to defendant’s good reputation in the community for honesty and integrity.

The typewriter was purchased in 1977 for $650. Patricia Noggle, business teacher at Ridgefarm High School, opined that the 1982 fair market value of the typewriter in question was $400.

A judgment of guilty was entered only on count II of the six-count indictment. Count II read as follows:

“That Lucille E. Frazier ***, on or about a date between *** March 8 and April 12, 1982, *** committed the offense of Theft (Over $300.00), in that she did knowingly obtain unauthorized control over stolen property, to-wit: One (1) IBM electric typewriter, Serial No. 26-1685702 stolen from the Ridge-farm High School on or about March 7, 1982, under such circumstances as would reasonably induce her to believe that the property was stolen, and did knowingly use said typewriter in such manner as to deprive the owner, to-wit: Ridgefarm High School, permanently of such use or benefit, said typewriter having a value in excess of Three Hundred Dollars ($300.00), in violation of Chapter 38, Section 16 — 1, Illinois Revised Statutes.”

We conclude that defendant was thus convicted and sentenced under section 16 — 1(d)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(d)(2)):

“Theft. A person commits theft when he knowingly:
* * *
(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and * * * *
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit.”

The time frame relevant for a conviction under section 16 — 1(d) was discussed in People v. Dickerson (1976), 41 Ill. App. 3d 464, 353 N.E.2d 427, wherein the defendant was charged with the theft of five snowmobiles under section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(d)(1)):

“The crime with which defendant was charged is the statutory equivalent of the much older crime of receiving stolen property. (See People v. Baxa, 50 Ill. 2d 111, 115 (1971); People v. Rubin, 361 Ill. 311, 327-28 (1935).) Knowledge by defendant that the property was stolen when he received it has been, and still is, an element of this offense. (Baxa, at 114, 115; People v. Stewart, 20 Ill. 2d 387, 392 (1960); Rubin, at 328; People v. Weiss, 34 Ill. App. 3d 840, 842 (1976).) The modern statute provides an alternative ■ element to proof of actual knowledge-proof that stolen property was obtained under such circumstances as would reasonably induce the defendant to believe the property stolen. The addition of this statutory alternative does nothing to alter the crucial time frame requisite to the ‘guilty knowledge’ element. The actual knowledge, or the circumstances which would reasonably induce such belief, must exist at the time of receipt of the stolen property; knowledge gained afterward does not satisfy this critical element. * * *
There is a long line of cases involving receiving stolen property which line indicates that when circumstantial evidence alone is relied on to prove the element of guilty knowledge, the circumstances must point clearly and conclusively, beyond a reasonable doubt, to the fact that ‘defendant knew the goods were stolen at the time he received them and must exclude every reasonable hypothesis other than that of guilt.’ (Emphasis added.) (People v. Rubin, 361 Ill. 311, 328 (1935); People v. Berg, 91 Ill. App. 2d 166, 170 (1968); see People v. Legear, 29 Ill. App. 3d 884, 888 (1975).)” (41 Ill. App. 3d 464, 467-68, 353 N.E.2d 427, 428-29.)

We find Dickerson to be controlling in this case. Having reviewed the record in light of the applicable standards, we find insufficient evidence of guilty knowledge at the time defendant received the stolen goods to sustain her conviction under section 16 — 1(d).

Judgment reversed.

MILLS, P.J., and GREEN, J., concur.