author: JUSTICE MILLER

text:
    KENNETH S. KIRBY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
    Fourth District
    No. 4-83-0177
    Opinion filed September 27, 1983.
    Glenn A. Stanko, of Reno, O’Byrne & Kepley, of Champaign, for appellant.
    Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Janet A. Flaccus, of counsel), for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

On June 18, 1982, Kenneth S. Kirby filed a two-count complaint against the Illinois Central Gulf Railroad Company based upon the railroad’s alleged unlawful refusal to hire him. Count I of the complaint was brought under the Equal Opportunities for the Handicapped Act (Ill. Rev. Stat. 1979, ch. 38, par. 65 — 21 et seq.) (EOHA). Count II alleged breach of contract. The trial court dismissed both counts with prejudice. Kirby appeals the order of dismissal only as to count I.

The complaint alleges that plaintiff applies for a position of employment as carman apprentice with the railroad, in December 1979. Kirby passed an aptitude test administered by the railroad and in January 1980 Illinois Central informed him that he was hired for the position. On March 10, 1980, following notification of plaintiff’s hiring, the railroad advised Kirby that he was disqualified from employment, because the physical examination had revealed a back condition, spina bifida of L-5.

Count I of the complaint purports to allege a cause of action under the EOHA, in that the “defendant has perceived a condition of spina bifida of L-5 on the part of plaintiff as imposing a severe barrier upon the ability of plaintiff to perform work.” The allegations of count I further state that “the condition of plaintiff’s back imposes no barrier upon his ability to perform work, including heavy lifting or stressful work.” On January 27, 1983, the trial court dismissed the complaint with prejudice. The trial judge found that count I of the complaint failed to state a cause of action under the EOHA, because it did not allege a handicap within the meaning of the Act.

On appeal, Kirby contends that the trial court erred in dismissing count I of the complaint, because it is not necessary to allege the existence of a handicap in order to state a valid cause of action under the Act. He asserts that, in lieu of such an allegation, it is sufficient to allege the mere perception of a handicap by a prospective employer. The railroad responds that in order to state a cause of action under the EOHA, a plaintiff must allege the actual existence of a handicap, as opposed to the mere perception of a handicap. We agree with the defendant, as the trial court did, and affirm the dismissal of the complaint.

Although the EOHA was repealed and replaced with the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) subsequent to the conduct in question here, there is no dispute that the former act controls. (See Lyons v. Heritage House Restaurants, Inc. (1982), 89 Ill. 2d 163, 165, 432 N.E.2d 270, 271.) Section 3 of the EOHA provides in part:

“It is an unlawful employment practice for an employer:
(1) to refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment, otherwise lawful, because of such individual’s physical or mental handicap, unless it can be shown that the particular handicap prevents the performance of the employment involved ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 65 — 23.)

A “physical or mental handicap” is defined by the terms of the Act in part as “a handicap unrelated to one’s ability to perform jobs or positions available to him for hire or promotion ***.” Ill. Rev. Stat. 1979, ch. 38, par. 65 — 22.

The first physical disability case arising under the Act was Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, 385 N.E.2d 39. In Advocates the complaint alleged that the plaintiff suffered a kidney impairment which did not affect his ability to perform tasks other than heavy lifting. The plaintiff applied for a job with Sears and was told that, pending medical certification, there would be a position for him with the company. He did not receive the required medical certification, however, and he was not offered employment, allegedly on grounds that Sears deemed the plaintiff an uninsurable risk under the company’s self-insurance program. The trial court dismissed the complaint brought under the EOHA in part on grounds that the plaintiff was not handicapped in the meaning of the. Act.

On review, the appellate court noted that the statutory definition of “physical handicap” is circular. The plaintiff argued that for any physical condition to reach the level of a handicap protected by the Act, an employer need only act upon that condition and deny the individual employment. The appellate court rejected this suggestion in favor of “a more objective criteria.” (67 Ill. App. 3d 512, 516, 385 N.E.2d 39, 43.) In concluding that the plaintiff’s kidney ailment was not a handicap under the Act, the appellate court set forth the following standard:

“We believe *** that in enacting .this legislation, the General Assembly had in mind a class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions.
*** [T]he question of whether a person is handicapped turns upon whether the character of the disability is one which is generally perceived as one which severely limits the individual in performing work-related functions.” (67 Ill. App. 3d 512, 516-17, 385 N.E.2d 39, 43.)

The Advocates court affirmed the dismissal of the complaint on the basis that the physical condition in issue was not of the nature which fell within the commonly understood meaning of the term “physical handicap.”

The Illinois Supreme Court construed the same provisions of the Act in Lyons v. Heritage House Restaurants, Inc. (1982), 89 Ill. 2d 163, 432 N.E.2d 270. In Lyons, the plaintiff alleged that she had been discharged or suspended from employment after being diagnosed as having cancer of the uterus. The complaint stated that this physical condition had no effect on the plaintiff’s ability to perform the tasks of her employment. The complaint, brought under the EOHA, was dismissed by the trial court on grounds that the physical condition alleged did not constitute a handicap within the meaning of the Act.

On review in this court, the order of dismissal in Lyons was reversed. Following examination of similar State and Federal legislation, this court concluded that the physical condition alleged could be equated with a physical handicap and as such could form the basis for a cause of action under the EOHA. Lyons v. Heritage House Enterprises (1981), 92 Ill. App. 3d 668, 415 N.E.2d 1341.

The supreme court granted leave to appeal and reversed the decision of the appellate court. In seeking to develop an acceptable definition of “physical handicap” the supreme court initially observed:

“Not all abnormal physical conditions are handicaps. Some impose no limitations at all on everyday activity such as the lack of tonsils or an appendix, acne or dandruff; others are so temporary in effect that they cannot be considered a substantial limitation on activity, such as colds, flu or mumps. These cannot be called handicaps.” (89 Ill. 2d 163, 169, 432 N.E.2d 270, 273.)

Expressly adopting the first branch of the standard stated in Advocates, the supreme court held that the courts should in each case apply the following definition: “the class of physical and mental conditions which are generally believed to impose severe barriers upon the ability of an individual to perform major life functions.” “Major life function,” in turn, would include employment and the performance of manual tasks. 89 Ill. 2d 163, 170, 432 N.E.2d 270, 274.

Based on this standard, the supreme court affirmed the dismissal of the complaint in Lyons. The court briefly summarized the result in the last two sentences of that opinion:

“The plaintiff has not alleged that her cancer has substantially hindered her in any of these [major life] activities or any other activities or that her employer perceived her condition as causing such a hindrance. In our judgment, she is not handicapped within the meaning of the Illinois Constitution or the Equal Opportunities for the Handicapped Act.” (Emphasis added.) 89 Ill. 2d 163, 170-71, 432 N.E.2d 270, 274.

In the case at bar, the controversy hinges on the parties’ conflicting interpretations of the language quoted above. Plaintiff focuses upon the italicized language and has pleaded that defendant perceived his back condition as imposing a severe barrier to his ability to work. Kirby did not allege that he suffered a handicap, but specifically averred that his physical condition imposed no barrier to his employment performance. He argues that the allegation that the railroad perceived his back condition to be a handicap was sufficient to state a cause of action under the EOHA, as interpreted by the supreme court in Lyons. Defendant maintains that Lyons does not permit such pleading. The railroad insists that an allegation of the existence of a handicap is required to state a cause of action under the Act.

We hold that pleading the existence of a handicap is a threshold requirement for stating a cause of action under the EOHA. Secondly, it is necessary' to allege that the complained-of discriminatory employment practice occurred because of the perception of the handicap. The statute plainly requires the pleading of both elements. (Ill. Rev. Stat. 1979, ch. 38, par. 65 — 23.) Plaintiff’s theory that only the perception of a handicap need be alleged was previously rejected by the appellate court in Advocates for the Handicapped v. Sears, Roebuck & Co. (1978), 67 Ill. App. 3d 512, 516, 385 N.E.2d 39, 43. Moreover, both Advocates and the supreme court’s opinion in Lyons reflect that the allegation of the existence of a handicap is a necessary element of the cause of action.

In the case at bar, plaintiff concedes that he did not plead the existence of a handicap. To the contrary, his position is that he does not suffer a handicap. The EOHA does not provide a remedy to persons who are not in fact handicapped. The complaint under consideration did not state a cause of action under the Act. We affirm the order of dismissal.

Affirmed.

MILLS and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    REBECCA TRANQUILLI, Plaintiff-Appellant, v. MOHAMMAD IRSHAD, M.D., Defendant-Appellee.
    Fourth District
    No. 4 — 83—0109
    Opinion filed September 23, 1983.
    Rehearing denied October 25, 1983.

      Leahy and Leahy, of Springfield (Cheryl S. Redfield and Mary Lee Leahy, of counsel), for appellant.
    Samuel C. Patton, of Springfield, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Sex discrimination is not single gendered.

The concept inherently involves both males and females.

We affirm.

THE FACTS

Rebecca Tranquilli was six-months pregnant and without a job. Through Illinois State Job Services, she learned of an opening for a physician’s secretary at Dr. Mohammed Irshad’s office in Springfield. She phoned Dr. Irshad’s office and spoke with his receptionist, Sue Atherton. During the conversation, Tranquilli informed Atherton that she was pregnant. Atherton replied, “I don’t want a pregnant broad working for me.” Tranquilli asked her to repeat herself, Atherton did, and Tranquilli ended the conversation.

Tranquilli then filed a complaint against Dr. Irshad, alleging that she had been refused an interview for the secretarial position solely because she was pregnant and that such refusal constituted sex discrimination in violation of article I, section 17, of the Illinois Constitution of 1970. After a good deal of procedural maneuvering by both parties, Dr. Irshad filed a motion for summary judgment. In an accompanying affidavit, he swore that all of the applicants for the position had been women, and in a supporting memorandum he argued that because only women applied for the position no sex discrimination occurred in the hiring process. In reply, Tranquilli argued that the fact no men applied for the position did not foreclose the possibility of sex discrimination.

The trial court granted Dr. Irshad’s motion for summary judgment, Tranquilli appeals, and we affirm.

On appeal, Tranquilli argues that despite the fact that no men applied for the secretarial position, Dr. Irshad violated the sex discrimination restrictions of article I, section 17, of the Illinois Constitution of 1970 when his receptionist refused her an interview because she was pregnant. We disagree.

THE LAW

Article I, section 17, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 17) states in pertinent part:

“All persons shall have the right to be free from discrimination on the basis of *** sex in the hiring *** practices of any employer ***.”

We recognize that in certain instances a hiring practice which discriminates on the basis of pregnancy may constitute sex discrimination. Where, however, no men are in the job applicant pool and the hiring practice only favors nonpregnant women over pregnant women, pregnancy discrimination is not sex discrimination.

Sex discrimination is gender based.

The most fundamental requirement for a showing of sex discrimination is a demonstration that men and women were treated in a dissimilar manner because of their sex. (See Frontiero v. Richardson (1973), 411 U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764; Reed v. Reed (1971), 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251.) If the applicant pool for a position is comprised entirely of one sex, there can be no dissimilar treatment of the sexes in the hiring process. (Costa v. Markey (1st Cir. 1982), 706 F.2d 1, en banc opinion on rehearing (1983), 706 F.2d 10.) And without dissimilar treatment of the sexes, there can be no sex discrimination. Loper v. American Airlines, Inc. (5th Cir. 1978), 582 F.2d 956 (without dissimilar treatment, age discrimination is not sex discrimination); James v. Delta Airlines, Inc. (5th Cir. 1978), 571 F.2d 1376 (without dissimilar treatment, pregnancy discrimination is not sex discrimination); Stroud v. Delta Air Lines, Inc. (5th Cir. 1977), 544 F.2d 892 (without dissimilar treatment, marriage discrimination is not sex discrimination).

CONCLUSION

In the case sub judice, only women applied for the secretarial position with Dr. Irshad. Because the applicant pool was comprised entirely of women, there was no dissimilar treatment of men and women in the hiring process. Consequently, there was no sex discrimination. Ergo, we affirm the trial judge’s order granting summary judgment.

Affirmed.

WEBBER, RJ., and TRAPP, J., concur.


author: JUSTICE TRAPP

text:
    DECATUR HOUSING AUTHORITY, for the use and benefit of Harlan E. Moore and Company, Inc., Plaintiff-Appellant, v. CHRISTY-FOLTZ, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 83—0252
    Opinion filed September 23, 1983.

      T. J. Wilson, of Monticello, for appellant.
    Darrell E. Statzer, Jr., of Monroe, Wilson, Dyar, McDonald & Moss, of Decatur, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

The plaintiff brought this action pursuant to “An Act in relation to bonds of contractors entering into contracts for public construction” (the Act) (Ill. Rev. Stat. 1981, ch. 29, pars. 15, 16), demanding relief from Christy-Foltz, Inc., as principal and contractor, and St. Paul Fire & Marine Insurance Company, as surety upon a performance and payment bond. Upon defendants’ motions, Judge Hendrian dismissed the cause of action with prejudice after finding that the plaintiff failed to allege the defendants’ failure to perform the contract with Decatur Housing Authority (Authority) or under the terms of the payment and performance bond and, further, was estopped from doing so by the prior judicial determination and dismissal, with prejudice, pursuant to stipulation in cause No. 82 — LM—413, entitled Harlan E. Moore & Company, Inc. v. Christy-Foltz, Inc. and Floors, Inc. Plaintiff appeals the judgment of the circuit of Macon County. We reverse.

Moore has alleged that defendant Christy-Foltz, Inc., as contractor, entered into a contract with the Authority for construction on an Authority project. Christy-Foltz, Inc., subcontracted a portion of the work to Floors, Inc. Between February 19, 1982, and March 16, 1982, Moore supplied Floors, Inc., various items of flooring, adhesive, and mouldings which were incorporated into the project. The sum of $6,690.66 remained due to Moore for these materials. On May 7, 1982, Moore filed notices making claim against the bond under the Act and claiming a lien pursuant to section 23 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 23), notifying the Authority, Floors, Inc., and Christy-Foltz, Inc.

On August 4, 1982, Moore filed a two-count complaint in cause No. 82 — LM—413, a mechanic’s lien action. Count II of the complaint was directed against Christy-Foltz, Inc., and Floors, Inc. On August 13, 1982, Christy-Foltz, Inc., answered count II of the complaint, affirmatively stating that no funds remained due to Floors, Inc. ChristyFoltz, Inc., also raised the affirmative defense of satisfaction of the debt:

“[Mjoneys due the Defendant, FLOORS, INC., and/or the Plaintiff, HARLAN E. MOORE AND CO., INC., have been paid in full, as evidenced by a check made to the order of HARLAN E. MOORE AND CO., and FLOORS, INC., in the sum of $18,123.00 and endorsed by and received in full satisfaction of the above claim. Check #7004 is attached hereto and marked as Exhibit A and made a part of this answer.”

A copy of the front of the check, dated February 18, 1982, is in the record; no endorsements appear.

On October 26, 1982, the complaint in this cause was filed, alleging the existence of the contract between the Authority and ChristyFoltz, Inc.; the contract between Christy-Foltz, Inc., and Floors, Inc.; the purchases by Floors, Inc., from Moore between February 19, 1982, and March 16, 1982; incorporation of the materials into the building; the debt remaining for the materials; and the existence of the performance and payment bond.

On November 9, 1982, Moore entered into the following stipulation with Christy-Foltz, Inc., in the mechanic’s lien action:

“1. That as of Plaintiff’s filing of the Complaint, no funds remained due from Defendant, Christy-Foltz, Inc. to Defendant, Floors, Inc., sufficient to pay Plaintiff’s claim.
2. That Count II of Plaintiff’s Complaint may be dismissed with prejudice and Defendant, Christy-Foltz, Inc., awarded its costs of suit.”

Judge Diamond then entered the following order in that case:

“This matter coming on to be heard upon the Stipulation of Plaintiff, Harlan E. Moore and Company, Inc., and Defendant, Christy-Foltz, Inc. and the Court being advised in the premises:
NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Count II of Plaintiff’s Complaint be and hereby is ordered dismissed with prejudice and Defendant, Christy-Foltz, Inc., is awarded its costs of suit.”

On November 18, 1982, defendant Christy-Foltz, Inc., filed a motion to dismiss this case with prejudice, stating that the cause was barred by the dismissal with prejudice of the mechanic’s lien action, which voluntary dismissal constituted an adjudication on the merits. On November 23, 1982, defendant St. Paul Fire & Marine Insurance Company filed a motion to dismiss or in the alternative to make more definite and certain, attacking the sufficiency of the complaint. On March 8, 1983, Judge Hendrian heard defendants’ motions and dismissed the case with prejudice.

We first consider the effect of plaintiff’s voluntary dismissal "with prejudice of the mechanic’s lien action. This court recently discussed the principles of res judicata in Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375-76, 444 N.E.2d 205, 208:

“Res judicata is a doctrine which reflects the public policy favoring finality in litigation and judicial economy. (Smith v. Bishop (1962), 26 Ill. 2d 434, 187 N.E.2d 217.) The doctrine of res judicata is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. Hasset Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.
Estoppel by judgment {res judicata) provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. The doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. (Kahler v. Don E. Williams Co. (1978), 59 Ill. App. 3d 716, 375 N.E.2d 1034.) Where estoppel by verdict (or collateral estoppel) is applied, the parties are precluded from relitigating an issue in a subsequent proceeding where that issue was actually or neces-
sarily decided by a court of competent jurisdiction in an earlier proceeding involving the same parties and a different cause of action. Smith v. Bishop; Fred Olson Motor Service v. Container Corp. (1980), 81 Ill. App. 3d 825, 401 N.E.2d 1098; see also Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9 (only party against whom the estoppel is asserted must have been a party, or privy of a party, involved in the prior proceeding).”

Under the doctrine of estoppel by judgment, a final judgment may be asserted in bar of a second action where the parties and the cause of action are identical. (City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill. 2d 399, 367 N.E.2d 1305.) Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, i.e., where the causes of action are based upon a common core of operative facts. (Redfern.) Here, the parties agree that this complaint is based upon a different cause of action than that underlying the complaint in the action brought under the Mechanics’ Liens Act; the same evidence would not sustain both verdicts.

The Act provides an alternative remedy to that afforded by the Mechanics’ Liens Act. A fundamental distinction between them is the limitation on the availability of remedy under the Mechanics’ Liens Act: Persons furnishing materials to a subcontractor have no greater rights than persons furnishing materials to a contractor; both are limited, in the assertion of liens, to the amounts due their immediate contractors at the time the notice of their liens is given. (Koenig v. McCarthy Construction Co. (1951), 344 Ill. App. 93, 100 N.E.2d 338; Housing Authority v. Holtzman (1970), 120 Ill. App. 2d 226, 256 N.E.2d 873; Bigelow-Liptak Corp. v. Mazzucco Construction Co. (1972), 4 Ill. App. 3d 90, 280 N.E.2d 276.) Hence, if the contractor herein, Christy-Foltz, Inc., owed no funds to the subcontractor, Floors, Inc. — as was asserted by defendant Christy-Foltz, Inc., in its answer in the previous action — at the time Moore filed notice of the lien, Moore could not have prevailed on a mechanic’s lien theory. The plaintiff argues that this lack of funds due from Christy-Foltz, Inc., to Floors, Inc., was the only fact stipulated to in the mechanic’s lien action, which stipulation was the sole basis of the voluntary dismissal with prejudice in that case.

Defendants argue that a voluntary dismissal acts as an adjudication on the merits against the plaintiff on every fact or element which would have been necessary for plaintiff to succeed in the case, i.e., the dismissal with prejudice operates as a finding that the alleged debt was satisfied. In support of this position, defendants cite Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 424 N.E.2d 679. In that case the plaintiff sought, almost three years after his voluntary dismissal with prejudice, to reinstate his cause of action against defendant Marshall Field. The first district found that the plaintiff had abandoned his claim as a matter of law and stated:

“Once a cause of action has been adjudicated on the merits, whether by a dismissal with prejudice or by an adjudication after trial, the plaintiff is barred by the doctrines of res judicata and collateral estoppel from bringing a second action against the same defendant alleging any matter relating to the same causes of action which was or might have been litigated in the first suit. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831, appeal denied (1979), 79 Ill. 2d 609.)” (98 Ill. App. 3d 485, 487, 424 N.E.2d 679, 682.)

We conclude, however, that the doctrine of collateral estoppel was not applied in resolving the issues raised in Van Slambrouck.

As between the doctrines of estoppel by judgment and estoppel by verdict, there is a fundamental difference in the breadth of a former judgment’s conclusiveness. Under the doctrine of estoppel by verdict, a former judgment bars only those questions actually decided in the prior suit — the scope of the bar is narrower than under the doctrine of estoppel by judgment. (City of Peoria v. Peoria City Lines, Inc. (1962), 24 Ill. 2d 457, 182 N.E.2d 164.) To operate as an estoppel by verdict, it is absolutely necessary that there shall have been a finding of a specific fact in the former judgment or record that is material and controlling in that case and also material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily decided by the court rendering the judgment interposed as a bar by reason of such estoppel. If there is any uncertainty on the point that more than one distinct issue of fact- is presented to the court, the estoppel will not be applied, for the reason that the court may have decided upon one of the other issues of fact. Lange v. Coca-Cola Bottling Co. (1969), 44 Ill. 2d 73, 254 N.E.2d 467; People ex rel. Chicago & Eastern Illinois R.R. Co. v. Fleming (1969), 42 Ill. 2d 231, 246 N.E.2d 275; Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723; People ex rel. Mercer v. Wyanet Electric Light Co. (1922), 306 Ill. 377, 137 N.E. 834; Board of Directors v. People ex rel. Raymond (1901), 189 Ill. 439, 59 N.E. 977; Markley v. People ex rel. Kochersperger (1898), 171 Ill. 260, 49 N.E. 502.

Moreover, Baird & Warner, Inc., cited in Van Slambrouck, stated, “It must be remembered that the doctrine of collateral estoppel, unlike the doctrine of res judicata, is only applicable where the issue is actually and necessarily litigated and determined in the first action.” 70 Ill. App. 3d 59, 68, 387 N.E.2d 831, 840.

The trial court’s order dismissing the mechanic’s lien action with prejudice was expressly based on the stipulation of the parties; this stipulation indicated only that no funds were owed by ChristyFoltz, Inc., to Floor, Inc. To speculate that the court also considered the affirmative defense asserted by Christy-Foltz, Inc., in that action, i.e., satisfaction of the debt, would remove from the party asserting the defense of estoppel by verdict the burden of showing what was determined by the prior judgment with certainty and clarity. (Redfern.) Defendants have failed to meet this burden and therefore have not shown that the doctrine of estoppel by verdict is applicable here.

We next consider the sufficiency of the plaintiff’s complaint herein. Section 2 of the Act (Ill. Rev. Stat. 1981, ch. 29, par. 16) sets forth the requisites for recovery on a performance and payment bond. Our review of the complaint leads us to conclude that the plaintiff has sufficiently stated a cause of action to recover on the bond; the deficiencies raised by defendant St. Paul Fire & Marine Insurance Company in its motion to dismiss or in the alternative to make more definite and certain (failure to attach copies of the contract between Christy-Foltz, Inc., and the Authority and the subcontract between Christy-Foltz, Inc., and Floors, Inc.; failure to set forth in detail the items purchased and the prices; failure to state how the sum alleged due was calculated) did not warrant dismissal with prejudice. Section 1 of the Act (Ill. Rev. Stat. 1981, ch. 29, par. 15) states the minimum standard of liability for a principal and surety on any bond under the Act; plaintiff’s allegations sufficiently state that the defendants have not met their duty under the bond — to pay all persons, firms and corporations all just claims due them for materials furnished in the performance of the contract for which the bond is given. Dismissal with prejudice should not be made unless it clearly appears that no set of facts could be established which would entitle plaintiff to relief. Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305, 312 N.E.2d 259, 262.

Reversed and remanded.

GREEN and MILLER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH A. FOX et al., Defendants-Appellees.
    Fourth District
    No. 4 — 83—0070
    Opinion filed September 27, 1983.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Howard Hood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

The defendants were charged by information with the offense of obstructing a peace officer. (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1.) On the date of the bench trial, defendants’ counsel orally moved for dismissal on the ground that the information failed to state an offense. After objection by the State and arguments, the trial court granted the motion to dismiss. The State appeals pursuant to Supreme Court Rule 604 (87 Ill. 2d R. 604). We affirm.

The single question presented for review in this case is whether a charge alleging the offense of obstructing a peace officer must contain language describing the physical acts alleged to have obstructed the officer. The State argues that a description of the physical acts is not required. We disagree.

Defendants were charged as follows:

“[T]hat Joseph A. Fox & Debbie Sue Pate on the 12th day of December, 1982 at and within the said County of Vermilion and the State of Illinois, committed the offense of OBSTRUCTING A PEACE OFFICER, in that they then and there knowing Myron Deckard to be a peace officer did knowingly obstruct said officer by attempting to conceal the whereabouts of Joe L. Pate after being informed that said officer had a warrant for the arrest of Joe L. Pate and knowing the whereabouts of Joe L. Pate, said officer in the performance of an act within his official capacity, to-wit: the arrest of Joe L. Pate, in violation of Illinois Revised Statutes, Chapter 38, Section 31 — 1.” (Emphasis added.)

The form of the charge is prescribed in section 111 — 3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. Ill— 3). The precise allegations required, however, may vary with the statutory provisions and the nature of the offense. People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171; People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456.

The State relies on the Illinois Supreme Court’s decision in McQuoid v. People (1846), 8 Ill. (3 Gil.) 76, wherein the court considered an indictment for resisting an officer in the service of process. The defendant attacked the indictment on several grounds, one of which was the failure to describe the manner in which the officer was opposed or resisted. The court rejected that argument and stated that it would frequently be impossible to set out in an indictment the manner in which an officer was opposed in the execution of process and that the particular act and circumstances of obstruction were properly matters of evidence. We conclude that McQuoid has been implicitly overruled by more recent decisions of the court. People v. Green (1938), 368 Ill. 242, 13 N.E.2d 278, involved an information charging reckless driving. Many acts fall within the ambit of the reckless driving statute, but the information did not allege facts from which the defendant could determine the acts with which he was charged. The court found the information was insufficient and void. People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, also involved an information charging reckless driving. The court opined unless a defendant is advised of the particular acts relied upon to sustain the charge of reckless driving, he is not advised of the nature and elements of the offense and is not afforded the full protection against double jeopardy contemplated by the constitution. Where a defendant pleads guilty to a general charge of reckless driving without a trial, it may not be possible to determine what specific acts were included offenses. The court found the charge insufficient. In People v. Aud (1972), 52 Ill. 2d 368, 288 N.E.2d 453, the court found indictments charging perjury to be insufficient for failure to include the alleged perjurious statements. The court held that in perjury the words used are an integral part of the offense without which the charge is void.

In People v. Hayes (1979), 75 Ill. App. 3d 822, 394 N.E.2d 80, the second district found that a complaint charging reckless conduct in the language of the statute did not adequately particularize the offense with which defendant was charged. The court stated that where conduct giving rise to a charge is not described in particularity within the statute, or where statutory language may encompass conduct not intended to be punished under the statute, a complaint charged solely in the language of the statute is insufficient and will not support a judgment of conviction. The court held that the reckless conduct statute, like the reckless driving statute in Green and Griffin, was so general that the charging instrument must provide more specific details of the alleged criminal conduct than those contained in the statute itself. In People v. Leach (1972), 3 Ill. App. 3d 389, 279 N.E.2d 450, the first district held that a complaint charging the defendant with resisting or obstructing a peace officer in the language of the statute was not sufficient. The court found that the language of section 31 — 1 does not particularize the offense or describe the acts which constitute the crime. Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1.

In this case, the charge was framed in terms more specific than those of the statute. We conclude, however, that the phrasing of the charge, “attempting to conceal the whereabouts,” does not sufficiently describe the act or acts which form the basis of this charge so as to afford the defendant the full protection against double jeopardy contemplated by the constitution. Griffin.

The State is not required to plead evidentiary details in an indictment (People v. Drink (1967), 85 Ill. App. 2d 202, 229 N.E.2d 409 (indictment need not describe the particular method by which attempted murder is committed)); certain insufficiencies in a charge may be cured by a bill of particulars (People v. Meaderds (1961), 21 Ill. 2d 145, 171 N.E.2d 638, cert. denied (1961), 366 U.S. 939, 6 L. Ed. 2d 850, 81 S. Ct. 1667 (amount of narcotics in charge of unlawful possession of narcotic drugs); People v. Blanchett (1965), 33 Ill. 2d 527, 212 N.E.2d 97 (specificity with which time and place are alleged)); and some terms are so commonly understood that the failure to set forth the acts charged in detail may not be fatal (People v. Grieco (1970), 44 Ill. 2d 407, 255 N.E.2d 897, cert. denied (1970), 400 U.S. 825, 27 L. Ed. 2d 54, 91 S. Ct. 49 (battery); People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262 (theft)). We find that the deficiency in this case, however, goes to the nature and elements of the offense — a failure which renders the charge void.

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
      In re ESTATE OF JAMES POWERS, JR., Deceased—(Eva Renee Powers, by Maxa Powers, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. Joseph W. Maddox, Ex’r of the Will of James Powers, Jr., et al., Defendants-Appellees).
    Fourth District
    No. 4-83-0187
    Opinion filed September 27, 1983.

      Costello, Long, Young & Metnick, and Walbaum & Fleischli, both of Springfield, for appellants.
    Charles J. Gramlich and Eric A. Artman, both of Gramlich & Morse, of Springfield, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On November 12, 1981, plaintiffs, the three minor children of decedent James Powers, Jr., filed a complaint for construction of decedent’s will to set up a trust on their behalf. A subsequent amendment to the complaint set up two additional counts. Count II alleged that plaintiff, Aaron Lemont Powers, decedent’s youngest child, was entitled to a statutory share of the estate as an after-born child according to section 4 — 10 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 4 — 10). Count III of the amended complaint alleged that the will placed defendant, Eva H. Powers, in a fiduciary relationship with plaintiffs, and she did not intend to use the funds for the benefit of the children. On December 15, 1982, the trial court dismissed all counts in bar of action. We affirm.

In paragraphs two and three of his will decedent stated:

“SECOND: I give, devise and bequeath all property of which I die seized to my mother, EVA H. POWERS.
THIRD: In the event that my mother does not survive me by at least sixty (60) days, then I give, devise and bequeath all property of which I die seized to my brother, JIMMIE POWERS, or if he too fails to survive me by at least sixty (60) days, then to my sister, EVA PEARL POWERS. I make these gifts with the full belief that property left to my estate will be used by the person to whom it is given for the benefit of my surviving children.”

It was undisputably before the trial court that testator’s mother, Eva H. Powers, survived the testator by at least 60 days and was alive at the time the trial court made its decision.

In paragraph four, decedent placed the guardianship of his surviving children as follows:

“FOURTH: I request and direct that the physical care, custody and education of my surviving children be placed with my mother, or, if she does not survive me, then with my brother, JIMMIE POWERS. This direction is given with the knowledge that the mother of my children is still living, but in recognition of the fact that she has completely abandoned said children and they have, since the time of birth been raised by my mother.”

In paragraph five, decedent appointed defendant, Joseph W. Maddox, as executor.

Plaintiffs maintain the statement in the third paragraph of the will that testator made “these gifts with the full belief that property left in [his] estate will be used by the person to whom it is given for the benefit of [his] surviving children” mandates the imposition of a trust for their benefit. The gift of paragraph “THIRD” was not operative because of the survival of Eva H. Powers for 60 days, but plaintiffs maintain that the phrase “the person to whom it is given” has reference to the mother, Eva H. Powers, as well as those taking a gift if paragraph “THIRD” is operative.

The purpose of construing a will is to determine and give effect to the intentions of the testator at the time he executed the will. The court must generally determine the testator’s intent as it is set forth within the four corners of the will and a construction of the will should be adopted which upholds all its provisions and give effect to all the testator’s language. (Edgar County Children’s Home v. Beltranena (1949), 402 Ill. 385, 84 N.E.2d 363.) Here we have the dual problem of determining whether the testator’s language was precatory or mandatory and whether that language was applicable to the gift under paragraph “SECOND” as well as paragraph “THIRD.”

The test used to determine whether the words are mandatory or precatory is whether the testator, in using those words, intended to control the disposition of the property. (Keller v. Schobert (1974), 58 Ill. 2d 137, 142, 317 N.E.2d 510, 513.) If so, it is the testator’s will no matter how mildly the wish is expressed. However, if the testator has left the disposition of the property to the discretion of the first taker, then the words are merely precatory. In confronting our dual problem we must also consider the rule that when an outright gift is made in one portion of a will, language of a subsequent portion of the document will not be interpreted to cut down the estate given unless that language is clear. Cickyj v. Skeltinska (1981), 93 Ill. App. 3d 556, 561, 417 N.E.2d 699, 703; see Keiser v. Jensen (1940), 373 Ill. 184, 25 N.E.2d 819.

The word “belief” is not ordinarily mandatory in nature. The testator could very likely have wished that whoever received his estate would be helpful to his children and felt that admonishment in this respect would be desirable for his brother or sister but not necessary for his mother. He might also have desired that his mother have an opportunity to use some part of the estate herself if she needed it but desired that his brother or sister use the estate only for the benefit of the children. In any event, we do not interpret the word “belief” which appears in the will in a paragraph subsequent to an outright gift to the mother to be intended to mandate the encumbrance of a trust upon that which otherwise appears to be an outright gift to her.

The parties’ briefs and pretrial memoranda indicate that (1) at the time the testator executed his will, he had a relatively small estate and his two older children, plaintiffs Eva Renee and James David Powers, were living with testator’s mother; and (2) testator died on August 31, 1981, due to an overdose of anesthetic which resulted in a substantial malpractice award to his estate. However, the trial court’s order appealed ruled as to the sufficiency of the complaint. Those matters were not alleged and, thus, were not before the trial court.

Plaintiffs desire that we consider this extrinsic evidence to show the testator’s intention. However, that evidence would merely show that the testator had a larger estate than he expected to have. Although the testator might have rewritten his will and set up a trust for his children had he known of the malpractice award, the increase in the size of the testator’s estate is irrelevant to his intentions at the time he executed the will. At that time, he left his property to his mother allowing her to use her discretion in disposing of it. Even if that information had been before the court, it would not be permitted to rewrite the will, nor could it alter a bequest on the presumption that this was what the testator would have desired had he been able to foresee the future.

Count II alleged that after the execution of the will and five years prior to his death, the testator fathered a third child, plaintiff Aaron Lemont Powers, by a woman who was not his wife. Aaron maintains he should receive a share of the estate as an after-born child.

Section 4 — 10 of the Probate Act of 1975 states:

“Unless provision is made in the will for a child of the testator bom after the will is executed or unless it appears by the will that it was the intention of the testator to disinherit the child, the child is entitled to receive the portion of the estate to which he would be entitled if the testator died intestate ***.” (Ill. Rev. Stat. 1981, ch. 110½, par. 4 — 10.)

Here, the testator had two children bom at the time the will was executed who were disinherited by the express terms of the will. Since the testator did not revoke that will or make a new one, we conclude he intended that his mother take his property, and he trusted his mother to use her good judgment in caring for the children. Froehlich v. Minwegen (1922), 304 Ill. 462,136 N.E. 669.

We interpret count III of the amended complaint to also request the imposition of a trust as does count I, and we have dealt with that above.

We conclude that the trial court was correct in dismissing all counts of the complaint. The decision of the trial court is affirmed.

Affirmed.

WEBBER, P.J., and MILLS, J., concur.


text:
    DENNIS D. MURDY, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0166
    Opinion filed September 27, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Frederic D. Tannenbaum, Assistant Attorney General, of counsel), for appellant.
    Louis E. Miller, of Frings, Bagley, Atherton & Clark, of Pekin, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court;

The Secretary of State appeals the order of the circuit court of Sangamon County upon administrative review which reversed and remanded a decision denying reinstatement of plaintiff’s driving privileges and in the alternative, a restricted driving permit. We affirm.

On October 11, 1979, plaintiff was arrested for the second time for driving under the influence of alcohol. (See Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.) His first arrest and conviction occurred in 1973. Following plaintiff’s second conviction an order of revocation was entered by the Secretary in accordance with statute. Ill. Rev. Stat. 1981, ch. 95½, par. 6-206(a)(l).

On May 13, 1982, the cause was set for hearing before the Secretary to determine whether plaintiff’s privilege to drive should be reinstated or whether the Secretary should grant plaintiff a restricted driving permit. At the hearing, plaintiff’s driving record was admitted, and the testimony of plaintiff and his wife was considered. Plaintiff also offered, without objection, letters of recommendation from friends, co-workers, his pastor, and a counselor at the Tazewood Center for Human Services, a not-for-profit agency which provides alcoholism and drug counseling. No evidence was offered by the Secretary other than plaintiff’s driving record. By written order the Secretary denied plaintiff reinstatement of his privilege to drive and a restricted driving permit. The trial court in administrative review reversed the Secretary and remanded for the issuance of either a driving permit or a driver’s license.

Since the issue raised by the parties is whether the Secretary’s decision is against the manifest weight of the evidence, a detailed discussion of the facts is necessary.

Plaintiff is 32 years of age, married and employed at Caterpillar Tractor Company. Plaintiff testified that he began drinking at age 16 or 17 with high school peers although his drinking was confined to weekends. His first conviction for driving under the influence occurred at age 21 and was characterized as attributable to being “young and foolish.” Plaintiff admitted that he continued to drink although he did not believe that it was a problem. Prior to his second conviction, plaintiffs drinking increased in frequency because of mounting personal and financial pressure resulting from a strike at Caterpillar, and the loss of a recently acquired farm. At the time of the hearing, plaintiffs wife acknowledged that similar pressures still face plaintiff. From July 27, 1981, until October 27, 1981, plaintiff was issued a restricted driving permit. Following the 1979 conviction, plaintiff received no other convictions for Vehicle Code violations, but his record does indicate a 1973 conviction for driving with an invalid license and a 1977 conviction for speeding.

Plaintiff stated that following his second conviction he joined a church group, became involved with a prison ministry and enrolled in a counseling program. Entered into the record were records from the Tazewood Center for Human Services certifying plaintiffs successful completion of a “DUI school” and favorable results from an alcoholism screening and remedial educational program. Plaintiffs alcohol counselor noted that plaintiff had not drunk since December of 1981 and stated that the return of plaintiff’s license would be a “positive move.” Numerous other letters vouched for plaintiff’s good character and made similar recommendations. Plaintiff stated that the last time he was intoxicated was in mid-1980 and that the last time he had anything to drink was on Christmas of 1981. Plaintiff’s testimony was substantially corroborated by his wife. Other evidence indicated that plaintiff resided eight miles from work and that his wife was responsible for his transportation.

The Secretary’s order concluded that he “was not satisfied after investigation of the petitioner that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety.”

Our review as well as that of the trial court is limited to determining whether the findings and conclusion of the administrative body are against the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877.) Section 3 — 110 of the Code of Civil Procedure provides that “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) The scope of review does not extend to reweighing the evidence or making independent investigations of fact, but the findings of the administrative body must rest upon competent evidence and be supported by substantial proof. Men ning v. Department of Registration & Education (1958), 14 Ill. 2d 553, 153 N.E.2d 52.

We turn first to the trial court’s order directing the Secretary to issue plaintiff a restricted driving permit. Plaintiff’s 1979 conviction for driving under the influence resulted in an automatic revocation of his driver’s license pursuant to section 6 — 205(a)(2) of the Illinois Vehicle Code, although the Secretary revoked plaintiff’s license under discretionary authority contained in section 6 — 206(a)(1). (Ill. Rev. Stat. 1981, ch. 95½, pars. 6 — 205(a)(2), 6 — 206(a)(1).) Both sections 6 — 205 and 6 — 206 contain authority for the issuance of a restricted driving permit by the Secretary. Section 6 — 206(c)(3) provides as follows:

“At the conclusion of a hearing pursuant to Section 2 — 118 *** the Secretary *** shall either rescind or continue an order of revocation or shall substitute an order of suspension therefor; or, good cause appearing therefor, rescind, continue, change or extend his order of suspension. If the Secretary of State does not rescind his order, he may upon application therefor, to relieve undue hardship, issue a restricted driving permit granting the privilege of driving a motor vehicle between the residence and the place of employment of such person or within other proper limits. In each case the Secretary may issue such restricted driving permit for such period as he deems appropriate, except that such permit shall expire within one year from the date of issuance. A restricted driving permit issued hereunder shall be subject to cancellation, revocation and suspension by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be cancelled, revoked or suspended; except that a conviction upon one or more offenses against laws or ordinances regulating the movement of traffic shall be deemed sufficient cause for the revocation, suspension or cancellation of a restricted driving permit. The Secretary of State may, as a condition to the issuance of a restricted driving permit, require the applicant to participate in a designated driver remedial or rehabilitative program.” Ill. Rev. Stat. 1981, ch. 95½, par. 6-206(c)(3).

Granting a restricted driving permit is permissive and not mandatory, and before a restricted permit is issued, the Secretary must weigh the public interest against the hardship suffered by the applicant. (Foege v. Edgar (1982), 110 Ill. App. 3d 190, 441 N.E.2d 1267.) Presumably this weighing was done in 1981 when the Secretary issued plaintiff a restricted driving permit. The present circumstances equally favor the issuance of a restricted driving permit by the Secretary. Plaintiff’s evidence indicated without contradiction that plaintiff had no traffic convictions during the period following his 1979 conviction, that plaintiff enrolled in and successfully completed an alcohol counseling program, and that plaintiff had abstained from any alcohol for some six months prior to the hearing. In support of the Secretary’s position, his brief asserts that plaintiff never really refuted “his chronic alcoholism,” that plaintiff scored 15 on the MAST “when common knowledge recalls 5 as borderline” and that plaintiff faces similar financial pressures today as existed when plaintiff was arrested the second time for driving under the influence.

The suggestion that plaintiff is a chronic alcoholic is simply unsupported by expert medical opinion or facts from which a lay person might so conclude. Aside from two convictions for driving under the influence within a 10-year period, and plaintiff’s admission that he began drinking at age 16 or 17, there is no evidence of chronic alcoholism. The uncontradicted proof showed that plaintiff had not been intoxicated since mid-1980 and did not drink after Christmas of 1981. The evidence which was presented is insufficient to support a finding that plaintiff is a habitual drunkard to a degree which renders him incapable of safely driving a motor vehicle. Ill. Rev. Stat. 1981, ch. 95½, par. 6-103(4).

The fact that plaintiff scored 15 on the “MAST” is not a subject of which we will take judicial notice. Judicial notice may be taken of facts which are of common and general knowledge and which are established and known within the limits of the jurisdiction of the court. (Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 309 N.E.2d 293.) With respect to the MAST generally and plaintiff’s score of 15 in particular, we are of the opinion that these are not of such common and general knowledge to meet the requirements for judicial notice. Plaintiff’s score and its significance should have been presented through expert opinion and explanation.

Finally, the fact that plaintiff faces similar financial pressures as existed when plaintiff received his second ticket is entitled to consideration in weighing the danger to the public and the likely recurrence of plaintiff’s actions. Equally entitled to consideration is the plaintiff’s efforts at dealing with these pressures which were not mentioned in the Secretary’s order. On balance, we conclude that the Secretary abused his discretion in denying plaintiff a restricted driving permit. We recognize that restoration of driving privileges is not an automatic matter (see People v. Turner (1976), 64 Ill. 2d 183, 354 N.E.2d 897), and that considerable discretion is given the Secretary (Foege), but agree with the trial court that the findings of the Secretary for denying a restricted driving permit are against the manifest weight of the evidence.

The trial court’s ruling also directs the Secretary to consider full restoration to plaintiff of his driving privileges. Section 6 — 208 of the Illinois Vehicle Code directs that the Secretary shall not suspend a drivers license or privilege to drive a motor vehicle for longer than one year unless required by some other law. Subsection (b) directs that a person whose license has been revoked shall not be allowed a renewal or restoration of his license or permit but may make application for a new license after one year, or the removal of the cause prompting revocation. The final paragraph of section 6 — 208 concludes:

“In either event, the Secretary of State shall not issue such license unless and until he is satisfied after investigation of such person that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.” Ill. Rev. Stat. 1981, ch. 95½, par. 6 — 208(b)(2).

The standard to be applied by the Secretary under section 6 — 208 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 6 — 208) is similar to that involved when issuing a restricted driving permit. (See Foege.) In each case the pertinent inquiry is the danger to the public in allowing the applicant to drive. Under sections 6 — 205 and 6 — 206, however, hardship is to be taken into consideration apart from public safety and welfare. Section 6 — 208 mandates no consideration of hardship to the applicant. A further difference is in the scope of rights granted. Under sections 6 — 205 and 6 — 206, a restricted driving permit may only be issued for driving between a residence and a place of employment or other proper limits. Relief under section 6— 208 contains no limitations.

Our review of the record persuades us that the Secretary’s conclusion that plaintiff would endanger the public safety and welfare is unsupported by substantial evidence in the record. Plaintiff has suffered the revocation of his license for approximately four years as a result of his second conviction for driving under the influence, three years from the date of the hearing. We recognize the Secretary’s duty to insure the public safety and welfare but conclude that any presumption arising from the 1979 conviction that plaintiff would pose a danger to society is not sufficiently attenuated. This attenuation together with plaintiff’s evidence that he recognizes the danger to society from combining alcohol and driving and evidence of his rehabilitation persuades us that the trial court properly reversed the Secretary’s decision as against the manifest weight of the evidence.

Finally, we note that the Secretary suggests that its determination is supported by several administrative standards. (See 92 Adm. Code sec. 1001.440(g) (1983).) The applicability and validity of these standards were neither argued below nor did they appear in the Secretary’s initial brief filed in this court. Argument concerning their applicability appears for the first time in the Secretary’s reply brief. By failing to raise this in his initial brief, the defendant is deemed to have waived this argument. Department of Transportation v. Drobniek (1977), 54 Ill. App. 3d 987, 370 N.E.2d 242; People v. 123 Punch Boards (1956), 8 Ill. 2d 520, 134 N.E.2d 763.

The order of the trial court reversing the Secretary’s decision to deny plaintiff a restricted driving permit and directing the Secretary to grant plaintiff relief under section 6 — 208 of the Illinois Vehicle Code is affirmed (Ill. Rev. Stat. 1981, ch. 95½, par. 6 — 208). The cause is remanded to the Secretary for further proceedings consistent with this opinion.

Affirmed and remanded.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE WHITE

text:
    RENTAR INDUSTRIES, INC., Plaintiff-Appellant, v. HAROLD RUBENSTEIN, Defendant-Appellee.
    First District (3rd Division)
    No. 81—1186
    Opinion filed September 21, 1983.
    Ronald J. Sklar, William J. Harte, and Roger B. Harris, all of Chicago (Altheimer & Gray and William J. Harte, Ltd., of counsel), for appellant.
    Alvin E. Rosenbloom, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Rentar Industries, Inc. (Rentar), appeals from an order of the circuit court of Cook County denying its motion to stay arbitration proceedings, commenced by defendant, Harold Rubenstein (Rubenstein) pursuant to section 102(b) of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 102(b)).

In November 1977, Rubenstein entered in to a written contract of employment with Rentar that provided for a five-year term of employment and contained provisions regarding Rubenstein’s position, title, salary, bonus, expense reimbursement, insurance, and vacation and retirement benefits. The contract also provided:

“In the event that a dispute arises over any provision of this Agreement, the parties agree to submit such dispute to arbitration to be conducted in accordance with the rules of, and by, the American Arbitration Association.”

Rubenstein’s claim is that he was improperly discharged by Rentar on August 26, 1980, when Milton Ratner, chairman of the board of Rentar Industries, advised him that his salary was being reduced by half, until such time as was reasonable for him to obtain other employment. Rubenstein then filed a demand for arbitration pursuant to the arbitration clause alleging that:

“Rentar Industries, Inc. has dismissed claimant from its employ and refuses to pay claimant in accordance with the provisions of the Employment Agreement the parties entered into on November 15,1977.”

Rentar moved in the circuit court of Cook County to stay the arbitration proceedings. The trial court denied Rentar’s motion. On Rentar’s motion for reconsideration, the trial court denied the motion and stayed arbitration pending this appeal.

The sole issue presented for review is whether the contract provision which requires the parties to submit to arbitration “disputes over any provision of this Agreement” requires the parties to arbitrate the dispute over Rubenstein’s termination. Rentar argues that the issue of termination is not mentioned in any provision of the contract, and therefore, is not subject to arbitration. Rubenstein, however, maintains that Rentar misstates the issue presented which, he argues, is whether the arbitration clause contained in the contract of employment requires the parties to arbitrate questions of continuing salary and benefits upon termination of his employment by Rentar.

Generally, parties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.) In Flood, however, the court was presented with an arbitration clause that was specific in its designation of issues which were subject to arbitration. The arbitration clause in the case at bar is nonspecific in its designation of arbitrable disputes and has been termed a “generic” arbitration clause. (Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 331 N.E.2d 835.) In determining the scope of such a clause, this court has held that where an arbitration clause in a contract pertains to “all disputes arising in connection with” the contract, the scope of the clause is limited to the specific terms of the contract. Silver Cross Hospital v. S. N. Nielsen Co. (1972), 8 Ill. App. 3d 1000, 291 N.E.2d 247; Blades, Inc. v. Jarman Memorial Fund, Inc. (1969), 109 Ill. App. 2d 224, 248 N.E.2d 289.

Here, the arbitration clause in the contract between Rentar and Rubenstein pertains to disputes arising “over any provision of this agreement.” We find this clause similar to an arbitration clause that pertains to “all disputes arising in connection with” a contract. Accordingly, as in Silver Cross and Blades, the scope of the arbitration clause before us is limited to those disputes involving the specific terms of the contract.

The contract between Rentar and Rubenstein provides in pertinent part:

“TERM.
Employer agrees to hire Employee for a term of 5 years commencing the 1st day of January, 1978, and ending the 31st day of December, 1982.”

Clearly, we have before us a contract of employment whose termination date is December 1982. Rentar, however, terminated Rubenstein in August 1980, when Milton Ratner allegedly advised Rubenstein that he would be paid half salary for a reasonable period during which he could seek new employment. Under such circumstances we believe that the subject matter of the dispute involved the aforementioned contract provision that established a five-year term of employment. We find, therefore, that the dispute between Rentar and Rubenstein was subject to the arbitration clause in their contract. Accordingly, we conclude that the trial court did not err in denying Rentar’s motion to stay arbitration proceedings.

For the aforementioned reasons, we affirm the order of the circuit court of Cook County.

Affirmed.

McNAMARA, RJ., and RIZZI, J., concur.


author: JUSTICE McGILLICUDDY

text:
    MARCUS BATTEAST, a Minor, by His Parents and Next Friends, James Batteast et al., Plaintiff-Appellant, v. ARGONAUT INSURANCE COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—2539
    Opinion filed September 14, 1983.
    Robert A. Holstein, Ltd., of Chicago, for appellant.
    Winston & Strawn and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Chicago (Stanley A. Walton and D. Kendall Griffith, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court;

The plaintiff, Marcus Batteast, filed a declaratory judgment action to determine the maximum amount of coverage available under an insurance policy issued to St. Bernard’s Hospital by Argonaut Insurance Company (Argonaut) covering the period December 31, 1975, to December 31, 1976. The defendants moved to dismiss the complaint, alleging, inter alia, that no actual controversy existed and that the plaintiff did not have standing to bring the action. The trial court granted the motion. The plaintiff appeals. The issues presented for review are: (1) whether the extent of coverage under a liability insurance policy may be determined by declaratory judgment; (2) whether the trial court abused its discretion in denying the plaintiff’s motion for leave to amend the complaint; and (3) whether the plaintiff’s failure to raise the issue of the propriety of his action against defendant, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, in his brief constitutes waiver of that issue.

The plaintiff brought a personal injury action in the circuit court of Cook County which alleged that in February 1976, while in the care of St. Bernard’s Hospital, he suffered permanent brain damage. During settlement negotiations, a dispute arose between the parties as to the amount of coverage available under the applicable insurance policy. The policy includes three areas of coverage: Comprehensive General Liability, Contractual Liability and Hospital Professional Liability. Under each area, Argonaut insured the hospital up to $1 million per occurrence and $1 million in the aggregate. The plaintiff contends that the maximum amount available to satisfy his claim is, therefore, $3 million. Defendant Argonaut’s interpretation of the policy sets the maximum at $1 million.

Because the disagreement hindered negotiations, the plaintiff brought his complaint for declaratory judgment to seek judicial determination of the aggregate coverage provided by the policy and other equitable relief. The trial court granted the defendants’ motion to dismiss the complaint with prejudice, and denied the plaintiff’s motion for leave to amend. This appeal followed.

The plaintiff argues that his complaint seeking determination of the amount of coverage available was a proper action for declaratory judgment. He bases his contention on Reagor v. Travelers Insurance Co. (1980), 92 Ill. App. 3d 99, 415 N.E.2d 512, which involved a personal injury action against Dyer Construction Company (Dyer). Travelers Insurance Company originally assumed defense of the action pursuant to the liability policy it had issued to Dyer. Subsequently, when Dyer agreed with Travelers that the claim was not covered by the policy, the insurance company withdrew from the case. The trial court dismissed the plaintiffs’ subsequent complaint for declaratory judgment. In the appeal which followed, this court held that the plaintiffs were entitled to maintain the declaratory judgment action to determine whether their claim was covered under the insurance policy. 92 Ill. App. 3d 99,103.

In the case at bar, there is no question of coverage. Argonaut has not refused to defend the underlying tort action on behalf of its insured, St. Bernard’s Hospital. Indeed, Argonaut has participated in settlement negotiations with the plaintiff. However, the plaintiff urges us to extend Reagor to the facts of this case and allow judicial determination of the amount of coverage in a declaratory judgment action.

In order to maintain a declaratory judgment action, there must be an actual controversy between parties capable of being affected by a determination of the controversy. (Ill. Rev. Stat. 1979, ch. 110, par. 57.1(1), now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2—701; Reagor v. Travelers Insurance Co.) The controversy here stems from the parties’ differing interpretations of the provisions regarding amount of coverage in the applicable insurance policy. Regardless of their disagreement, the plaintiff’s right to any amount is contingent upon a finding of liability in the underlying tort action. Even if liability is later established, a resolution of the dispute would remain unnecessary unless the damages awarded exceeded $1 million. Moreover, if we were to allow this action, there is no reason why every tort claimant would not, upon filing a personal injury action, concomitantly file a declaratory judgment action to determine the maximum amount of coverage to which he would be entitled in the event that liability was subsequently established. We cannot create the right to such premature litigation. The instant fact situation does not present an actual controversy between the parties. Therefore, the plaintiff does not have standing at this time to maintain the declaratory judgment action.

The plaintiff contends that he should have been given the opportunity to amend his complaint. The decision to allow an amendment is a matter within the sound discretion of the trial court and, absent a manifest abuse of said discretion, we will not disturb the court’s decision. (Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 403 N.E.2d 694.) Since the plaintiff did not have standing to bring the action for declaratory judgment, we do not believe the trial court abused its discretion in this matter.

The plaintiff argues that his failure to raise the issue of the propriety of his action against Hinshaw, Culbertson, Moelmann, Ho-ban & Fuller in his original brief should be overlooked in the interest of justice. While the plaintiff’s omission does not deprive this court of jurisdiction over the matter (see Hux v. Raben (1967) 38 Ill. 2d 223, 230 N.E.2d 831; People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937), the rule is that points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing. (73 Ill. 2d R. 341(e)(7).) As the plaintiff has waived this issue, we will not address it.

Finally, the plaintiff argues that the language of the order of dismissal renders it a final judgment on the merits, which will preclude a declaratory judgment action to determine amount of coverage subsequent to a finding of liability in excess of $1 million in the underlying tort action. Although we have been assured by the defendants that res judicata is inapplicable, we strike the words "with prejudice” in the trial court order of dismissal of the declaratory judgment action.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA, P.J., and RIZZI, J., concur.


text:
    TERRY MIDGETT et al., Plaintiffs-Appellants, v. SACKETT-CHICAGO, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—3040
    Opinion filed September 21, 1983.
    Nicholas T. Kitsos & Associates, of Chicago, for appellants.
    Allen Allred, of Thompson & Mitchell, of St. Louis, Missouri, and Benjamin P. Hyink & Associates, of Chicago, for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Plaintiffs appeal from the dismissal with prejudice of their action in tort for retaliatory discharge for failure to state a cause of action against defendants, Sackett-Chicago, Inc., and David J. Schimp et al. (Sackett).

On January 31, 1979, Terry Midgett (Midgett) suffered an injury in the course of his employment with Sackett. Alleging partial disability, Midgett filed a workers’ compensation claim with the Illinois Industrial Commission which was eventually settled. In January 1980, while the claim was pending, Midgett was discharged by Sackett. Midgett brought an action in tort in his own name and on behalf of his wife and minor children seeking damages for retaliatory discharge.

In the course of the pretrial proceedings, Sackett filed two motions for involuntary dismissal. Sackett’s accompanying affidavits alleged essentially that Midgett was a member of the Production Workers Union of Chicago and Vicinity, Local 707, during his employment with Sackett and at the time of his discharge. Union members were protected by a collective bargaining agreement containing specific grievance procedures regarding discharge other than for “cause.” Sackett maintained that Midgett was bound to pursue the administrative remedies provided by the collective bargaining agreement. Sackett moved to dismiss Midgett’s claim sounding in tort for failure to state a cause of action. Midgett filed cross-motions in opposition to the motions to dismiss-with affidavits generally denying Sackett’s assertions and alleging that because the Union and Sackett were in collusion, the Union had not allowed him to file a grievance for his discharge. The trial court granted Sackett's motion to dismiss. The court stated that since it found that Midgett was a member of a union protected by a collective bargaining agreement and not an employee at will, he had no right to bring a cause of action for retaliatory discharge. Midgett appeals.

The primary issue before this court is whether an employee who is a union member and protected by a collective bargaining agreement has a cause of action in tort for retaliatory discharge.

A recent decision of this court, Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, appeal denied (1982), 92 Ill. 2d 573, addressed this issue. As in the case at bar, the plaintiff in that case, Wyatt, was a union member who brought suit against a former employer for retaliatory discharge, following the filing of a workers’ compensation claim. The suit was dismissed for failure to state a cause of action. This court reversed the decision of the trial court, holding that a union member, such as Wyatt, was entitled to sue in tort for retaliatory discharge regardless of the existence of contractual remedies pursuant to a collective bargaining agreement. In reaching that decision this court emphasized the important public policy embodied in the Workers’ Compensation Act and the need to protect the workers who invoke that policy, citing Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

In Kelsay, the Illinois Supreme Court recognized a cause of action for retaliatory discharge of an employee at will who filed a workers’ compensation claim. The court held that the cause of action arose separately from any action for breach of contract. Additionally, the court held that punitive damages might be awarded for such a discharge occurring after December 1978. This decision was based upon the strong public policy favoring the protection of rights stemming from the Workers’ Compensation Act. (111. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). In Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, this court stated that to allow a cause of action for retaliatory discharge to an employee at will while denying it to a union member, would lead to an absurd result since punitive damages would be available to an employee at will, but would not be available to an employee protected by a union contract, despite the fact that union contracts are specifically designed to protect against discharge other than for cause.

We reject defendants’ contention that such a determination tends to undermine the Federal labor law policy favoring the arbitration of labor disputes covered by a collective bargaining agreement, as expressed in United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347. On the contrary, the recognition of a cause of action in tort merely allows an employee an additional remedy in areas where strong public policies, as opposed to purely private interests, are involved. Such an alternative is especially necessary and desirable in a case such as this where there has been an allegation of collusion between the union and the employer. See Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669.

Defendants rely upon a third district decision, Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, where the court held that Kelsay was not applicable to an employee protected by a collective bargaining agreement, and that such an employee was limited to remedies provided by the union contract, and was required to exhaust such remedies. However, we first point out that plaintiff in the case at bar has alleged collusion between the union and his former employer, effectively precluding his pursuit of administrative remedies, thus in our opinion this case is distinguishable from Cook. Further, we cannot agree with the result reached by the court in Cook because we believe it was inconsistent with the decision of our supreme court in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, which expanded the availability of a cause of action in tort for retaliatory discharge where strong public policies are involved.

In Palmateer, an employee at will filed a claim for retaliatory discharge after he supplied law enforcement officials with information that an International Harvester employee might be violating the law. The trial court dismissed the complaint for failure to state a cause of action and the appellate court affirmed in a divided opinion. Our supreme court granted leave to appeal to “determine the contours of the tort of retaliatory discharge approved in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.” (85 Ill. 2d 124, 127.) The court held that public policy favored Palmateer’s action in reporting illegal activities, and that to state a cause of action for retaliatory discharge “[a]Il that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.” (85 Ill. 2d 124, 134.) Thus, the court reversed the decisions of the appellate court and the trial court, and held that Palmateer had stated a cause of action in tort for retaliatory discharge.

In the case at bar, Midgett has alleged that he was fired by Sackett for filing a workers’ compensation claim, which, if true, contravenes a clearly mandated public policy as defined in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. Thus, under the rule established in Palmateer, we believe Midgett has stated a cause of action in tort.

Defendants assert that regardless of Midgett’s rights, his wife and children have no cause of action against Sackett. We agree with this contention. Therefore, it is ordered that Midgett’s wife and children are dismissed as plaintiffs in this cause.

Reversed and remanded for proceedings consistent with this opinion.

McNAMARA, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    AUDRONE GARBENIS et al., Plaintiffs-Appellees, v. RICHARD J. ELROD, Sheriff of Cook County, et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—699
    Opinion filed September 16, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Susan Condon, Assistant State’s Attorneys, of counsel), for appellants.
    Milton M. Blumenthal & Associates and Larry D. Drury, Ltd., both of Chicago (Milton M. Blumenthal, David W. Dickerson, Michael L. Blumenthal, Larry D. Drury, and Andi C. Goldfine, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This action challenges the authority of the sheriff of Cook County to retain service and mileage fees paid to the sheriff pursuant to section 1 of “An Act to provide for the fees of the sheriff ***” (Ill. Rev. Stat. 1979, ch. 53, par. 71) for writs placed for service which are returned with the endorsement “not found.” Initially, the individual and class action complaint filed by plaintiffs sought declaratory and injunctive relief as well as the refund of the disputed fees paid to the sheriff. Subsequently, plaintiffs filed a motion for summary judgment, which was followed by defendants’ cross-motion for summary judgment. Defendants appeal from the trial court’s order granting plaintiffs’ motion for summary judgment and denying their cross-motion. For the reasons that follow, we reverse the judgment of the trial court.

On January 13, 1976, plaintiff Garbenis filed a civil suit in the circuit court of Cook County and, by her agent, delivered a summons to the sheriff’s office which was to be served on the defendant named in Garbenis’ suit. At that time, Garbenis’ agent paid a $4 service fee to the sheriff and a mileage fee of $1.50. After seven attempts to serve the defendant at the address provided by Garbenis, the summons was returned with the endorsement “not found.”

Similarly, on September 24, 1976, plaintiff Paulauskas filed a civil suit in the circuit court of Cook County and delivered a summons to the sheriff’s office to be served on the named defendants in her suit. Paulauskas paid a service fee of $12 and a mileage fee of $2.70. Subsequently, the summons was returned with the endorsement “not found” as well as the deputy’s written explanation that the defendants had moved from the address provided by plaintiff Paulauskas. No refunds of the service and mileage fees were made to either plaintiff, nor was a demand for a refund made by either plaintiff. Thereafter, plaintiffs filed the present lawsuit on behalf of themselves and all other persons similarly situated.

Opinion

This case arises under section 1 of “An Act to provide for the fees of the sheriff ***” (Ill. Rev. Stat. 1979, ch. 53, par. 71) (section 1), which provides generally for the payment of service and mileage fees to the sheriffs of third class counties for serving writs. For purposes of this appeal, the relevant statutory language provides:

“The officers herein named, in counties of the third class, shall be entitled to receive the fees herein specified, for the services mentioned and such other fees as may be provided by law for such other services not herein designated.
Fees for Sheriff
For serving any summons on each defendant, $8.
* * *
Mileage for service of all process, 16$ per mile each way necessarily traveled in making such service computed from the place of holding court.” Ill. Rev. Stat. 1979, ch. 53, par. 71.

On appeal, defendants maintain that in accordance with long, continued practice, fees provided “for serving” writs may be retained by the sheriff whether or not actual service is effectuated, provided that the sheriff has exercised reasonable diligence in attempting to deliver the writ. Plaintiffs, on the other hand, argue that the language of the statute explicitly states that the sheriff is entitled to retain fees only when actual service has been made. In light of analogous precedent, we cannot accept plaintiffs’ strict construction of the fee provisions of section 1.

Specifically, we find Fried v. Danaher (1970), 46 Ill. 2d 475, 263 N.E.2d 820, and Glenview Credit Union v. Elrod (1983), 112 Ill. App. 3d 842, 445 N.E.2d 1254, dispositive of the issue. In Fried, plaintiff filed a class action lawsuit to recover fees for the services of a jury paid by plaintiff in a previous case which had been settled prior to impaneling a jury. The supreme court found that because the jury fee statute (Ill. Rev. Stat. 1969, ch. 53, par. 51) did not include a refund provision, it was proper to infer that the legislature intended that the fee be used to defray the general costs of the jury system and not just to pay the costs of the particular jury services provided to the party paying the fee. In addition, the Fried court noted that the practice of retaining jury demand fees was consistent, long-continued and reasonable. As a result, the court found retention of the jury fees to be proper even though the right to retain the fees was not explicitly set forth in the statute.

Similarly, in Glenview Credit Union v. Elrod (1983), 112 Ill. App. 3d 842, 445 N.E.2d 1254, plaintiff challenged the authority of the sheriff of Cook County to retain fees charged for mileage “necessarily traveled” to perfect service of an attachment where the sheriff mails a letter to the opposing party rather than physically traveling in order to serve the writ. Relying upon the “reasonableness” standard set forth in Fried, the court stated:

“If the three general prerequisites set out in Fried are satisfied here, we think it would be proper for the sheriff to charge and retain mileage fees even if actual travel was unnecessary to effectuate service. Specifically, it must be established that the statute at issue does not include a refund provision, that the complained of practice is reasonable and that the retained costs are used to defray generally the costs of administrating the court system.” (112 Ill. App. 3d 842, 845.)

Upon finding that all three prerequisites had been satisfied, the Glenview Credit Union court held that the sheriff was entitled to collect and retain fees for miles “necessarily traveled” in serving process even though service was effectuated by mail.

We concur with the analysis of the Fried standard set forth in Glenview Credit Union and, accordingly, find that application of the three-prong Fried standard to the facts at bar compels us to hold that the sheriff was entitled to retain the service and mileage fees even though actual service had not been made.

First, as in Fried and Glenview Credit Union, there is no explicit refund provision incorporated into section 1. Plaintiffs interpret this omission as an unequivocal indication of the legislature’s intent to prohibit retention of the fee, reasoning that if retention were permissible, the statute would have so stated. In contradistinction, defendants claim that if refunds were necessary, the statute would have so indicated. In support of their position, defendants point out that the legislature enacted a specific refund provision for first and second class counties (Ill. Rev. Stat. 1979, ch. 53, par. 37), but avoided imposing that requirement on the more populous third class counties such as Cook. We conclude that the absence of such a mandate for third class counties was not an oversight. Rather, it is indicative of legislative acquiescence to the long-established practice of retaining service and mileage fees for attempted, yet unsuccessful service of process. Further support for this conclusion can be found in the legislative debates which preceded passage of Senate Bill No. 1384, the 1982 amendment to section 1 which explicitly provides that sheriffs in third class counties may collect fees for attempted service as well as actual service. Plaintiffs cite the amendment in support of their position that, prior to its passage, actual service of writs was the statutory condition for retaining service arid mileage fees. In short, plaintiffs allege that there would have been no need to amend section 1 “for serving or attempting to serve” if that had always been the intent of the legislature. We find this argument totally unpersuasive. The transcript of the relevant legislative debate reveals that the legislature was fully aware that the sheriff of Cook County retained the fees for all service of process, effectuated or not, and, furthermore, approved of the practice as a means to offset the economic and administrative burden of attempting to serve. In fact, the debate indicates that it was the trial court’s decision in the case at bar that prompted the amendment by alerting the legislature that there was some ambiguity in the statute. The bill was passed with resounding approval, thereby codifying long-established practice, and, more importantly in our case, confirming legislative intent.

The second and third prongs of the Fried standard require that the complained of practice be reasonable and that the retained fees be used to generally support and defray the cost of administrating the court system. In our opinion, the facts in the record overwhelmingly demonstrate that the practice of retaining service and mileage fees in Cook County is reasonable and has been consistently used to defray the enormous administrative cost burden necessary to run the court system.

The circuit court of Cook County is the largest court of general jurisdiction in the United States. In 1978, for example, statistics kept by the shériff of Cook County reveal that 590,947 writs were accepted for service and that more than 27%, or 161,441 of these writs, were returned with the endorsement “not found.” All writs, whether they are successfully served or not, must be routed, indexed, docketed, assigned to deputies and logged. Further, following attempted or actual service, deputies must record their activities in log books and docket books, and, if relevant, prepare “not found” reports. All of the court personnel involved in performing these tasks must be paid their salaries. Obviously, their paychecks are not dependent upon whether service was completed or not. In our opinion, it is not unreasonable to have those persons who seek the protection of the Cook County court system share the burden of running that system by paying fees for its numerous services. Moreover, we note that parties who feel that the sheriff’s office has abused its function have a cause of action under section 16 of “An Act to revise the law in relation to sheriffs” (Ill. Rev. Stat. 1979, ch. 125, par. 16).

Accordingly, we find that plaintiffs’ reliance on Vannatta v. Brewer (1877), 85 Ill. 114, and Sprinkle v. County of Cass (1930), 340 Ill. 382, 172 N.E. 720, is misplaced. In Vannatta, plaintiffs challenged a mileage fee statute and questioned whether, when a subpoena for several witnesses residing at one place is delivered to the sheriff, and is served by him in one day, on one trip, he is allowed to charge for mileage for each witness so served. In holding that the sheriff could charge for each witness served, the Vannatta court analyzed the service of process function as a whole and concluded that, although in the Vannatta situation the fees might seem larger than they should be because all of the witnesses were together, deputies are not always that fortunate and often make fruitless journeys for which they get no mileage fees. Thus, the court reasoned, it all balances out in the end. In the case at bar, plaintiffs construed the Vannatta court’s statement regarding no fees for fruitless journeys as the holding of the case. This, however, is an erroneous interpretation. That particular statement was nothing more than dicta, stated to support the court’s holding that the sheriff could properly charge a mileage fee for each witness served.

In Sprinkle v. County of Cass (1930), 340 Ill. 382, 172 N.E. 720, a member of the county road and bridge committee sought compensation for inspection work he had performed. The court denied compensation on the ground that compensation to public officials rested wholly upon statutory provision or authority, neither of which existed. We find the Sprinkle case inapplicable to the case at bar principally because of the fundamental difference between fees and a public officer’s compensation. Fees are public funds or revenues collected by an official who has no personal claim or interest in them. Compensation, on the other hand, is money that accrues personally to one who has a private claim thereto, i.e., salary or expense reimbursement. See People v. Atchison, Topeka & Santa Fe Ry. Co. (1945), 389 Ill. 204, 58 N.E.2d 916.

In conclusion, we find that because no explicit refund provision was set forth in section 1 and the practice of retaining fees was reasonable, the sheriff properly retained service and mileage fees for attempted as well as completed service in order to defray generally the costs of administrating the court system. As a caveat, however, we note that section 1 should be read in conjunction with section 15 of “An Act to revise the law in relation to sheriffs” (Ill. Rev. Stat. 1979, ch. 125, par. 15), which implies that reasonable effort be made to effectuate actual service. This is readily verifiable by the record that deputies are required to keep regarding the number of attempts made to serve process and the reason for nonservice.

As a final matter, because we find that the sheriff properly retained service and mileage fees for unsuccessful attempts at service, we need not address defendants’ final argument regarding the necessity for a demand before the fee will be returned.

For the aforementioned reasons, we reverse the judgment of the circuit court of Cook County and remand the cause with instructions that the trial court enter summary judgment for defendants.

Reversed and remanded with instructions.

LORENZ and MEJDA, JJ., concur.