author: JUSTICE GREEN

text:
    BUFFALO, DAWSON, MECHANICSBURG SEWER COMMISSION, Plaintiff-Appellant, v. DOROTHY M. BOGGS et al., Defendants-Appellees (Laura Marie Davis et al., Defendants).
    Fourth District
    No. 4—84—0156
    Opinion filed November 7, 1984.
    Rehearing denied December 5, 1984.

      Bruce E. Beeman, of Scott, Beeman & Scott, P.C., of Springfield, for appellant.
    John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

The principal question in this case is whether a sewer commission, formed by ordinances of three villages in the manner described in division 136 of article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 136—1 et seq.), has the power to enact an ordinance requiring property owners within each municipality to attach all sewage disposal systems to the drains of the commission. The parties agree that the commission could have acquired power to do so only by (1) grant from each of the villages pursuant to section 10(a) of article VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, sec. 10(a)), or (2) the power conferred upon sewer commissions by division 136 of article 11 of the Code. We hold that (1) such power was conferred by division 136, and (2) the ordinance was valid.

This case began August 11, 1983, when plaintiff, Buffalo, Dawson, Mechanicsburg Sewer Commission (Commission) filed a 42-count complaint in the circuit court of Sangamon County against various defendant property owners in the village of Dawson. It alleged (1) the formation of the Commission in 1971 to construct and operate a joint sewer system for the villages of Buffalo, Dawson, and Mechanicsburg, (2) the purported enactment by the Commission of an ordinance requiring all property owners in the district to connect all sewage disposal systems to those of the commission, and (3) the refusal of the defendant property owners to do so. The complaint sought fines to punish the defendants and mandatory injunctions to require them to connect.

Certain of the defendants filed a motion to dismiss contending, among other reasons, that the Commission had no power to require the connections to its system. On February 9, 1984, the circuit court allowed the motion,-dismissed the challenged counts, and entered a finding, pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), making the order appealable. Plaintiff then appealed, contending that the trial court had improperly dismissed the counts, finding the ordinance requiring connection was void. We agree with plaintiff and reverse and remand for further proceedings.

The record before the trial court when ruling on the motion to dismiss showed that the Commission was formed by separate ordinances, all in the same form, enacted by the villages of Buffalo, Dawson, and Mechanicsburg on March 11, 1971. By ordinances, the villages authorized the creation of the Commission and elected “to operate jointly a common sewer for disposal of waste, water, and sewage” pursuant to “chapter 24, section 11 — 135—1 [sic] et seg., Ill. Rev. Stat. (Ill. Bar Ed.) 1969.” Division 135 of article 11 of the Illinois Municipal Code, to which reference was there made, concerns the joint operation of water supplies and waterworks. Division 136 thereof concerns “Joint Acquisition and Operation of Water and Sewage Systems” and provides for the formation of a commission such as that here. The parties do not dispute that the latter reference was the one intended and have proceeded upon that basis.

Section 8 of article VII of the Illinois Constitution of 1970 provides in part that “[tjownships, school districts, special districts and units, designated by law as units of local government, which exercise limited governmental powers or powers in respect to limited governmental subjects shall have only powers granted by law." (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 8.) The parties agree that commissions organized under division 136 of article 11 of the Code come within the purview of section 8 above. This constitutional provision continues in force for the described entities a doctrine known as “Dillon’s Rule,” which previously applied to all subdivisions of State government. The substance of that rule is that such entities have no inherent powers, but only those powers either expressly granted by the legislature or necessarily incident thereto. Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 224 N.E.2d 793.

Section 10(a) of article VII of the Illinois Constitution of 1970 created an exception to “Dillon’s Rule” which is applicable to commissions formed under division 136. Section 10(a) states in part:

“Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts, and with the United States to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law.” (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 10(a).)

Thus, a commission organized under division 136 can have not only the powers set forth by the legislature, but also any power of the municipalities which formed the district if those powers were transferred to it by the joint action of the municipalities. See Village of Sherman v. Village of Williamsville (1982), 106 Ill. App. 3d 174, 435 N.E.2d 548.

Although the meaning of section 1 — 1—5 of the Illinois Municipal Code is somewhat uncertain, it appears to provide some support for the existence of power in the Commission to exercise some of the powers possessed by the villages. Section 1 — 1—5 has, at all times relevant here, stated:

“The corporate authorities of each municipality may exercise jointly, with one or more other municipal corporations or governmental subdivisions or districts, all of the powers set forth in this Code unless expressly provided otherwise. In this section ‘municipal corporations or governmental subdivisions or districts’ includes, but is not limited to, municipalities, townships, counties, school districts, park districts, sanitary districts, and fire protection districts.” (Emphasis added.) Ill. Rev. Stat. 1969, ch. 24, par. 1 — 1—5.

The Commission contends that the foregoing constitutional and statutory provisions were conduits by which it acquired authority to enact the ordinance requiring connection. The defendants agree that the villages themselves had power to require those within their respective boundaries to connect. (City of Nokomis v. Sullivan (1958), 14 Ill. 2d 417, 153 N.E.2d 48; Village of Riverwoods v. Untermyer (1977), 54 Ill. App. 3d 816, 369 N.E.2d 1385.) The record indicates that Buffalo and Mechanicsburg had enacted such ordinances, but Dawson had not done so. However, the difficulty with the Commission’s position is that one can find no indication that any of the villages ever took any action (1) to transfer its power to order connection to the Commission, or (2) to act jointly to require connection.

The villages’ ordinances of March 11, 1971, authorized the creation of the Commission pursuant to the provisions of the Municipal Code, but said nothing about the transfer of any specific power. Thus, the only powers which could be conferred on the Commission by those enactments were the statutory powers set forth in division 136. Subsequently, each village passed an ordinance authorizing the Commission to use village-owned property, including its streets and rights of way, “as necessary to construct, operate and maintain” the system. Both of the above ordinances were enacted before July 1, 1971, the stated generally effective date for the Illinois Constitution of 1970. No other ordinances that might have transferred powers to the Commission or indicated an intention of the village to act jointly to require connection have been called to our attention. Accordingly, we agree with the defendants and the trial court that neither the constitutional nor the statutory matter cited supports the contention of the Commission.

Our conclusion that the Commission did have the authority to require the landowners to make connection is based upon the theory that the power to do so is necessarily incident to the powers expressly conferred by division 136 of article 11 of the Code. The Commission “has full and complete supervision, management, and control” of the sewer systems and “their maintenance, operation, and extension” and has power to purchase the sewers of the villages. (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 136—3.) It is also authorized to incur indebtedness by issuing revenue bonds for acquiring or improving the sewer system. These bonds are not to be an obligation of the constituent municipalities. (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 136—4.) Most importantly, when a commission created under division 136 is for the purpose of furnishing sewer services, the power to fix rates rests exclusively with the Commission. Ill. Rev. Stat. 1969, ch. 24, par. 11-136-5.

Determination as to which powers are necessarily incident to the powers expressly granted to a governmental unit is difficult. In People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, 173 N.E.2d 485, a county’s authority to construct a sewage treatment plant was implied from a general legislative grant to counties to regulate the disposal of sewage and to construct sewers. In Strub v. Village of Deerfield (1960), 19 Ill. 2d 401, 167 N.E.2d 178, legislative authorization to cities to make regulations concerning health and the suppression of disease, together with the grant of police power, was held to be sufficient to authorize a village to limit the number of scavengers licensed to collect and remove garbage within the limits of the municipality. In Rauland Division, Zenith Radio Corp. v. Metropolitan Sanitary District (1971), 2 Ill. App. 3d 35, 275 N.E.2d 756, the court found a sanitary district had the power to hold administrative hearings and to issue cease and desist orders concerning discharge of pollutants into the sewers of the district. The court stated this power was incident to the district’s statutory power to (1) hold similar proceedings concerning discharge of pollutants into the waterways of the district, and (2) construct and maintain outlets for drainage and sewage, so as to treat sewage in such a manner that the effluent is not injurious to the public.

In City of Nokomis and Village of Riverwoods, the court’s determination that municipalities had the implied power to require property owners to connect their sewage disposal systems to public sewers was based primarily upon the theory that this power was necessarily incident to legislative grants to municipalities to protect the public health and to abate nuisances. The direct focus was on the health hazards that would result from citizens using other methods to dispose of sewage. No such broad legislative grant of powers have been given to division 136 sewer commissions. However, in Village of Riverwoods, the court noted that if property owners were permitted to refrain from connecting to the municipal sewer, serious problems would arise, not only in terms of health but also as to “the municipal financing of” a sewer system. Village of Riverwoods v. Untermyer (1977), 54 Ill. App. 3d 816, 821, 369 N.E.2d 1385, 1389.

Section 10(c) of article VII of the Illinois Constitution of 1970 states that “[t]he State shall encourage intergovernmental cooperation and use its technical and financial resources to assist in intergovernmental activities.” (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 10(c).) A division 136 sewer commission is a creature of intergovernmental cooperation. Such a commission has a stated mandate to maintain and operate a viable sewer system. Such a commission is entrusted with the responsibility for. borrowing money to construct, acquire, and operate the sewer facilities and to devise a schedule of paying for the facilities and their operation through setting and collecting fees. Each municipality enters into the cooperative venture dependent upon the participation of each of the other municipalities. (See People ex rel. Morgan v. Village of Berkeley (1951), 409 Ill. 160, 98 N.E.2d 743.) While a constituent municipality can require its own landowners to attach to the drains of the commission, that municipality cannot require landowners in other municipalities to do so. As indicated in Village of Riverwoods, an ability of the landowners in one constituent municipality to refuse to connect would create a serious problem as to the financing of the sewer system.

Because of the statutory responsibility placed upon division 136 sewer commissions to handle the financing of a sewer system, we hold that the power to require landowners within the member municipalities to attach to the commission’s system is a power necessarily incident to the powers specified in division 136. Such power is also related, to some degree, with the general power to operate the system. We consider our interpretation of the statutory provision to be consistent with the constitutional objective of encouraging intergovernmental cooperation to fully utilize the combined financial resources made available by such cooperation. We recognize that the question of whether the power of these commissions extends as far as we have held is a close one. However, we must reject defendants’ contention that such power is not so expansive and hold that the trial court was in error in concluding that the ordinance in question was beyond the statutory power of the Commission.

Defendants assert two other points in support of their contention that the ordinance requiring connection is void.

Section 8 of article VII of the Illinois Constitution of 1970 states that “the General Assembly should provide by law for the selection of officers” of entities such as the Commission, but that the officers shall not be appointed by any person in the judicial branch. After the enactment of the present Illinois Constitution, the legislature failed to amend section 11 — 136—2 of the Code (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 136—2), which provided that, upon formation of the commission, each municipality shall appoint one commissioner and a majority of the circuit judges in the circuit where the largest of the constituent localities is located shall select an additional commissioner. At the time the ordinance requiring connection was enacted, each municipality was represented on the commission by one commissioner, and a commissioner purportedly selected by the court was also serving. The ordinance passed by a 4-0 vote.

Defendants maintain that section 11 — 136—2 would not have been enacted by the legislature absent the provision for judicial appointment of one of the commissioners. They point to the fact that in article 11 of the Illinois Municipal Code, provisions for similar commissions provide that one commissioner be appointed by some person or group outside the governments of the municipalities involved. (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 135—2.) We agree that the legislature apparently deemed the existence of a commissioner whose appointment did not come from one of the municipalities to be desirable, but we cannot agree that division 136 would not have been passed without the provision for the additional method of appointment for one commissioner. That aspect of the legislative scheme is too minor to be given such importance. The appointment of the additional commissioner is not necessary, as the desired function of the commission can be performed without the additional commissioner. Under these circumstances, the unconstitutional portion can be severed without invalidating the entire division. City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19.

The vote on the ordinance requiring the connection was four to zero, and it would have carried regardless of the vote of the improperly appointed commissioner. The validity of the ordinance is not negated by the invalidity of the unconstitutional appointment of the commissioner.

Defendants also maintain that the penalty provisions of the ordinance requiring connection are invalid, because they provide that each day’s failure to conform is a separate offense and fix the amount of the fine in a mandatory amount of $200. They maintain that the flat fine violates “the inherent and constitutional power of the court to proportion penalties to the seriousness of the offense” and the requirement of section 11 of article I of the Illinois Constitution of 1970 that the restoration of an offender to useful citizenship be considered in determining penalties. No authority is cited in support of the contention, inherent in the argument, that provisions (1) for flat penalties, or (2) permitting each day’s failure to conform to the ordinance to constitute a separate offense create a constitutional violation per se. We do not agree with that argument. We do not now pass upon the validity of particular sanctions that may be applied pursuant to those penal provisions, but we do not find those provisions to invalidate the ordinance.

For the reasons stated, the judgment dismissing the various counts of the complaint is reversed, and the case is remanded to the circuit court of Sangamon County for further proceedings.

Reversed and remanded.

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


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellant, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Defendant and Counterplaintiff and CounterdefendantCross-Appellee (Victoria Cookson, Defendant and Counterdefendant and Counterplaintiff-Appellee; Martina Mertens, Defendant and Counterdefendant-Appellee and Cross-Appellant).
    Fifth District
    No. 83—202
    Opinion filed October 17, 1984.
    Rehearing denied November 14, 1984.

      Burton C. Bernard and Mark M. Silverintz, both of Bernard and Davidson, of Granite City, for appellant.
    C. E. Heiligenstein and Brad L. Badgley, both of Belleville, for appellee Martina Mertens.
    Robert D. Francis, of Dunham, Boman & Leskera, of East St. Louis, for appellee State Farm Mutual Automobile Insurance Company.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Universal Underwriters Insurance Company (Universal), filed a declaratory judgment action against State Farm Automobile Insurance Company (State Farm), Victoria Cookson, and Martina Mertens, in which it sought to determine whether a certain insurance policy which it issued covered Victoria Cookson and Martina Mertens. State Farm filed a counterclaim against Universal and Victoria Cookson and Martina Mertens, alleging that Victoria Cookson and Martina Mertens were excluded from coverage under an insurance policy which State Farm had issued to Allen Cookson and Jewell Cookson, Victoria’s parents. Victoria Cookson subsequently filed a complaint seeking insurance payments from both Universal and State Farm.

The issues presented for review concern the interpretation to be given several provisions of insurance policies issued by Universal and State Farm.

The basic facts giving rise to this dispute are as follows: Wayne E. Mertens and his wife Marsha, in the capacity of Belleville Honda, purchased automobile insurance from Universal. Subsequently, the Mertens requested that their daughter, Martina, drive a pickup truck used by Belleville Honda to Chicago to obtain some motorcycles for the business. Martina asked for and was given permission to permit Victoria Cookson to travel with her on this trip. Victoria had been staying with the Mertens for approximately two months following the death of her boyfriend, the Mertens’ son Chris, who had died as the result of an automobile collision. On September 13, 1978, while Victoria Cookson was driving the pickup truck to Chicago, she and Martina Mertens were involved in a one-vehicle collision which resulted in personal injuries to both of the girls. Universal paid the collision claim on the pickup truck, but both Universal and State Farm denied that their insurance policies gave rise to a duty to defend or indemnify Victoria Cookson against claims or judgments arising out of such collision or to make any medical payments under either of their policies.

The relevant portions of the Universal policy stated:

“UNICOVER COVERAGE PART NO. 010
OWNED AUTOMOBILES - DEALERS PHYSICAL DAMAGE
* * *
I. The Company will pay for LOSS to COVERED AUTOMOBILES *** caused by COLLISIONS or upset.
* * *
UNICOVER COVERAGE PART NO. 400 GARAGE INSURANCE
* * *
II. GARAGE LIABILITY
* * *
EXCLUSIONS
This insurance does not apply, under the Garage Liability Coverages:
* * *
(c) to any obligation for which the INSURED or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law; (d) to BODILY INJURY to any employee of the INSURED arising out of and in the course of his employment by the INSURED; ***.
* * *
IV. PERSONS INSURED
Each of the following is an INSURED under this insurance to the extent set forth below:
Under the GARAGE BODILY INJURY and PROPERTY DAMAGE LIABILITY Coverages:
(3) with respect to the AUTOMOBILE HAZARD;
(a) any partner, or paid employee or director or stockholder thereof or a member of the household of the NAMED INSURED or such partner or paid employee or director or stockholder while using an AUTOMOBILE covered by this Coverage Part or when legally responsible for the use thereof, provided the actual use of the AUTOMOBILE is by the NAMED INSURED or with his permission, ***.”

After hearing the evidence, the trial court ruled that the Universal policy covered the collision in the instant case and that, consequently, State Farm had no liability. The court concluded: (1) that at the time of the collision, Victoria Cookson was a member of the household of Mr. and Mrs. Mertens and therefore was covered by Universal’s policy, requiring Universal to defend and indemnify Victoria under such policy; (2) that Martina Mertens was not acting as an employee of Belleville Honda when the collision occurred but rather was running an errand outside the scope of any employment, which did not preclude her recovery on Universal’s policy; and (3) that Victoria Cookson was not covered by the insurance policy issued to her parents, Allen and Jewell Cookson, by State Farm, which covered relatives living with them.

The first issue presented on appeal is whether Universal’s payment pursuant to “UNICOVER COVERAGE NO. 010,” the portion of its policy relating to physical damage of the insured’s automobile, constitutes a waiver by Universal of its contention that Victoria Cookson was not an insured covered by its policy. It is urged that because Universal paid the Mertens for the damage to their pickup truck under its policy, it has waived the right to contest Victoria Cookson’s status as a member of the household of the insured. We reject this argument. The fact that Universal made payment for the physical damage to the Mertens’ pickup truck under separate coverage does not waive the argument that Victoria Cookson was not covered by the personal injury portion of the policy. See Western Casualty & Surety Co. v. Walker (1980), 84 Ill. App. 3d 129, 404 N.E.2d 1119, 1121.

Universal also contends that the trial court erred by finding that Victoria Cookson was a “member of the household of the named insured” under section IV(3)(a) of “UNICOVER COVERAGE PART NO. 400” of its insurance policy. Universal urges that the trial court’s finding was against the manifest weight of the evidence. We disagree and find that the trial court’s determination that Victoria Cookson was a “member of the household” of the Mertens family was supported by the evidence.

The word “household” is commonly defined as “those who dwell under the same roof and compose a family: a domestic establishment.” (Webster’s Third New International Dictionary 1096 (1971).) Courts that have considered the meaning of the term “household” in automobile contracts have concluded that a household includes all those who dwell together as a family under the same roof. E.g., Allstate Insurance Co. v. Neumann (1982) _ Ind. App. _, _, 435 N.E.2d 591, 593-94; Van Overbeke v. State Farm Mutual Automobile Insurance Co. (1975), 303 Minn. 387, 392, 227 N.W.2d 807, 810; Andrews v. Commercial Casualty Insurance Co. (1935), 128 Neb. 496, 500, 259 N.W. 653, 655.

In the instant case the evidence warrants the conclusion that Victoria Cookson was a member of the Mertens household at the time of the collision giving rise to this litigation. Victoria Cookson was living with the Mertens for an indefinite period of time and was generally treated by the Mertens as a member of the family. Victoria Cookson enjoyed a very close relationship with the Mertens’ son Chris and moved in with the Mertens, apparently to be close to the family, after Chris’ tragic death as the result of an automobile collision. Indeed, Martina Mertens testified that she thought of Victoria Cookson as a sister. There was obviously a close relationship between Victoria Cookson and the Mertens family, and the evidence is undisputed that Victoria Cookson dwelled with the Mertens under the same roof with no intention of living elsewhere. We determine that the trial court’s decision that Victoria Cookson was a member of the Mertens household was not against the manifest weight of the evidence.

Universal’s reliance on Country Mutual Insurance Co. v. Mooney (1978), 59 Ill. App. 3d 946, 376 N.E.2d 439, is misplaced. In Mooney the court was concerned with determining whether a certain party was a “relative,” which was defined as a “resident of the Named Insured’s household ***” in the automobile insurance policy involved in that case. (59 Ill. App. 3d 946, 947, 376 N.E.2d 439, 440.) The language in the automobile insurance contract construed in Mooney renders that case distinguishable from the case at bar. Here, the operative language in the automobile insurance policy was “member of the household” and, as we have already indicated, we find nothing erroneous in the trial court’s application of such terminology to the facts in this case.

Universal also maintains that the trial court’s finding that Martina Mertens was not an employee of her parents’ business was erroneous. It is Universal’s contention that Martina Mertens was an employee of Belleville Honda at the time of the automobile collision and that section 11(c) or (d) of “UNICOVER COVERAGE PART NO. 400,” the employee exclusion provision of its policy, is applicable to the instant case. Again we do not agree.

This court has addressed the issue of whether a party is an “employee” when the term is used in an insurance contract and has determined that the question is one of fact and that the trial court’s decision will not be disturbed unless it is against the manifest weight of the evidence. (See General Accident Fire & Life Assurance Corp. v. Professional Golfers Association of America (1976), 40 Ill. App. 3d 592, 595, 352 N.E.2d 441, 443.) We conclude that the facts before us do not warrant a reversal of the trial court’s determination.

Universal relies upon the workers’ compensation case of Byrne v. Stern (1981), 103 Ill. App. 3d 601, 431 N.E.2d 1073, which held that the performance of work by a person for another is prima facie evidence of employment and, in the absence of contrary evidence, supports a presumption that the person performing the service is a servant.

However, a contrary result would be obtained if the rationale of other types of cases were considered. For example, under the Scaffolding Act, in determining whether a worker is an employee, it has been held that no one factor is determinative, but the single most important factor is the right of the alleged employer to control the manner of doing the work, though not the exercise of that right. (Cf. Taber v. Defenbaugh (1956), 9 Ill. App. 2d 169, 173, 132 N.E.2d 454, 456.) Other factors include the right to discharge and the furnishing of materials, equipment or tools. (State Farm Mutual Automobile Insurance Co. v. Staff (1975), 26 Ill. App. 3d 217, 221, 325 N.E.2d 1, 4.) Also to be considered regarding whether an employer-employee relationship exists is regularity or continuity (not length) of service and whether the service is performed for financial consideration. Daub v. Maryland Casualty Co. (Mo. App. 1941), 148 S.W.2d 58, 60, cert. quashed (1942), 349 Mo. 1142, 164 S.W.2d 274.

The evidence in the case at bar establishes that Mr. Mertens asked his daughter, Martina, to pick up some motorcycles for Belle-ville Honda in Chicago. Martina was not to be paid for this trip but was to be reimbursed for the expenses incurred by her on the trip. Martina was not on Belleville Honda’s payroll, and there was no withholding of income or social security taxes when she was paid by her parents for occasional work relating to the motorcycle business. It is true, as Universal points out, that Martina previously had been paid by her parents for making inventory cards for Belleville Honda. However, we are of the opinion that the evidence refutes the existence of an employer-employee relationship and would seem to suggest that Martina would have been paid a salary for the Chicago trip if she were in fact an employee of Belleville Honda.

For these reasons, we conclude that the evidence adduced at trial supports the trial court’s determination that Martina was not serving as an employee when the collision occurred and that hér trip to Chicago was in response “to the request of her father, as a member of the immediate family, to run an errand.”

Finally, coverage under State Farm’s policy issued to Allen Cookson and Jewell Cookson, Victoria Cookson’s parents, for the operation of vehicles which they did not own was limited, inter alia, to relatives who “live with” the insureds. We conclude that Victoria did not live with her parents within the terms of such policy. Therefore, it necessarily follows that State Farm owed no duty to defend or indemnify her for suits arising out of the collision which is the basis of the instant appeal.

Because of our conclusion that the judgment of the trial court should not be reversed, we need not consider a number of alternative arguments raised by the parties on appeal. ■

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

Affirmed.

WELCH, P.J., and JONES, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARTH DUSTIN YAGER, Defendant-Appellant.
    Fourth District
    No. 4—83—0092
    Opinion filed November 15, 1984.
    Rehearing denied December 13, 1984.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

We have withheld our decision in this case pending the decision of the supreme court in the case of People v. Dace (1984), 104 Ill. 2d 96. That decision is the latest in the evolving doctrine whereby an accused is entitled, under certain circumstances, to have the question of the accused’s guilt as to an uncharged lesser offense submitted to the jury. There, in two consolidated cases, defendants were charged with residential burglary with the intent to commit theft. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) The evidence in each was sufficient to support a conviction of both theft and residential burglary. The supreme court held that the trial courts erred in refusing (1) to submit to the jury the question of whether the accuseds had committed the offense of theft, and (2) to instruct the jury accordingly.

In the instant case, after a trial by jury in the circuit court of Coles County, defendant, Garth Dustin Yager, was convicted on November 16, 1982, of the offense of residential burglary. On January 26, 1983, he was sentenced to a term of four years’ imprisonment and ordered to pay the sum of $1,235 as restitution to the victims of the burglary. Defendant has appealed, contending that (1) as in Dace, the trial court erred in refusing to submit the issue of his guilt of the offense of theft to the jury, and (2) the court erred in entering the order for restitution.

Prior to Dace, the law had been uncertain with reference to the right of an accused to have submitted to the trier of fact the question of the guilt of the accused to an uncharged offense which carries a lesser punishment than the charged offense. The various theories applied or suggested have been thoroughly explained in Dace and in People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633. Three tests for determining whether the submission should be made were discussed in Mays. They are (1) whether in the abstract the uncharged offense is statutorily defined as an included offense of the charged offense as so defined (see Ill. Rev. Stat. 1983, ch. 38, par. 2 — 9); (2) whether the uncharged offense is an included offense of the charged offense as that offense is set forth in the charging instrument; and (3) the so-called “inherent relationship” test. The supreme court approved the second test in People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189. Thus, under the precedent existing at the time of the trial in the case before us, the trial court ruled properly.

The supreme court refrained from passing on the “inherent relationship” test in Mays and then rejected it in Dace. However, although rejecting that test, the Dace opinion nevertheless stated:

“The proof of the offense charged requires proof of the specific intent (People v. Toolate (1984), 101 Ill. 2d 301), and the evidence adduced in each case would support a conviction of theft (People v. Housby (1981), 84 Ill. 2d 415). We hold that under these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant’s tendered instructions was error.” People v. Dace (1984), 104 Ill. 2d 96, 103.

Here, as in Dace, the residential burglary offense charged “requires proof of specific intent” and “the evidence adduced” would clearly “support a conviction of theft.” Thus, under the precedent of Dace, it would appear that the issue of defendant’s guilt of theft should have been submitted to the jury. We need not decide that question, however, because, under the evidence, we find any error in the trial court’s ruling was harmless beyond a reasonable doubt due to the overwhelming weight of the evidence of defendant’s guilt of residential burglary.

The evidence was undisputed that during the early morning hours of September 5, 1982, someone entered the rural residence of the John Farrar family located near Humboldt in Coles County and removed various items of personal property. The evidence was also undisputed that defendant had made various oral and written admissions to law enforcement officers that (1) he and another person agreed to go to the Farrar residence, to enter it, to take items of property from the residence and to take those items to Chicago and sell them, and (2) he, with the' other’s help, did do these things. A law enforcement officer testified that defendant said that he had no authority to either enter the house or to take the items. A written statement introduced into evidence and testified to as bearing defendant’s signature stated merely that he “did not have authority to remove or sell any of the items taken.” The defendant introduced no evidence of substance.

The defense argued at trial that defendant had authority to enter the Farrar residence and thus the unauthorized-entry element of residential burglary was not proved beyond a reasonable doubt. The defense argued that an inference of authority arose from the admitted fact that from mid-January 1982 until mid-May 1982, defendant lived with the Farrars as a foster child. The evidence also showed that during this time he had been permitted to return to the residence and enter late in the evenings. Both Ron Farrar and Marianne Farrar, his wife, testified that no one had authority to enter the residence that evening and take the items which had been removed. Neither testified that defendant did not have authority to merely enter the house. However, no evidence was presented that defendant had ever entered the Farrar house at night after the termination of the foster parent-foster child relationship. Under this undisputed evidence, no reasonable juror could have had a reasonable doubt that defendant had no express or implied authority to enter the Farrar house.

Defendant has also complained of the court’s requirement that he make restitution to the victims in the sum of $1,235. We do not deem that order to have been a breach of discretion. The defendant was shown to be 17 years old at the time of conviction, was not shown to have dependents and was shown to have some work record. The defendant should be able to make the payment during his period of mandatory supervisory release and if unable to do so then, he could apply for relief under section 5 — 5—6 of the Unified Code of Corrections. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6.

For the reasons stated, the conviction and sentence, including the order of restitution, are affirmed.

Affirmed.

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


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDOLPH L. LUCIEN, Defendant-Appellant.
    Second District
    No. 2—84—0030
    Opinion filed November 9, 1984.
    Stephen J. Culliton, of Bloomingdale, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Rudolph Lucien, was convicted of rape, armed robbery, intimidation, aggravated kidnaping and various forms of armed violence at a bench trial in Du Page County. Counts XV and XVI charged the defendant with armed violence predicated on intimidation. However, the court did not impose sentence on these counts. On appeal, the Second District Appellate Court reversed most of the convictions as either duplicative or illegal double enhancement. However, the court elected to treat counts XV and XVI as unsentenced and unappealed convictions. Thus, the case was remanded for sentencing on these counts. (People v. Lucien (1982), 109 Ill. App. 3d 412, 440 N.E.2d 899.) On remand, the trial court imposed sentence on these two counts over defendant’s objection.

Defendant’s principal contention is that the enhancement of intimidation to a Class X felony under the armed-violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A— 2) constitutes a sentence which is unconstitutionally disproportionate to the offense charged. (Ill. Const. 1970, art. I, secs. 2, 11.) The recent case of People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E. 512, provides the basis for this challenge. Wisslead holds that if a less serious offense is enhanced to a greater offense than the enhancement of a more serious offense from the same category of offenses, then the penalty imposed for the enhancement of the less serious offense is unconstitutionally disproportionate to the offense charged. Specifically, the court held that armed violence predicated on unlawful restraint, the lesser included offense of kidnaping, could not be a Class X felony where aggravated kidnaping is only a Class 1 felony. The defendant in the instant case argues that among the offenses contained in article 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12), intimidation is less serious than either assault or battery. However, the latter offenses can only be enhanced to aggravated assault and aggravated battery. (People v. Haron (1981), 85 Ill. 2d 261, 442 N.E.2d 627.) Therefore, he argues, enhancement of intimidation to a Class X felony runs afoul of the Illinois Constitution as interpreted by Wisslead.

Before addressing the merits of the defendant’s argument, we must first discuss the People’s contention that the Second District’s opinion bars consideration of the constitutional challenge. The People argue that the opinion is res judicata to all issues that were or could have been raised in the original appeal. It is also claimed that a challenge to the constitutionality of these charges goes beyond the mandate issued by the Second District. We disagree for several reasons. At the time of the first appeal, the convictions on counts XV and XVI stood as unsentenced. It is the general rule that a conviction without a sentence is not appealable. (People v. Dixon (1982), 91 Ill. 2d 346, 352, 438 N.E.2d 180, 183.) While cases such as People v. Lilly (1974), 56 Ill. 2d 493, 409 N.E.2d 1, stand for the proposition that defendant's constitutional challenge could have been heard by the Second District, thus triggering the res judicata defense, we believe that the questions raised by defendant are properly before this court. The strict doctrine of res judicata may be relaxed where fundamental fairness so requires. (People v. Somerville (1969), 42 Ill. 2d 1, 245 N.E.2d 461.) Here, the principal case relied upon by defendant had not been decided at the time of the original trial and subsequent appeal. Moreover, an issue of constitutional dimension is involved. Supreme Court Rule 615(a) provides that “defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (87 Ill. 2d R. 615.) As to the mandate issued by the Second District, the constitutional ramifications of sentencing on these counts were not considered. In fact, a new sentencing hearing was ordered upon rehearing. (People v. Lucien (1982), 109 Ill. App. 3d 412, 422, 440 N.E.2d 899, 907.) While this does not necessarily mean that authority to hear constitutional challenges was granted, it does lead to the conclusion that this possibility was not foreclosed by the limited mandate. Accordingly, we turn to the merits of the defendant’s argument.

Defendant premises his theory on a comparison of the elements of the offenses contained in article 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12). Battery, the defendant claims, is clearly a more serious offense than intimidation, since it involves actual physical harm to the victim rather than merely a threat of harm. Assault is considered by the defendant to be a more serious crime than intimidation, based on an analysis of the respective elements of the offenses. Taking the case of a verbal threat, a charge of assault can only be sustained if the accompanying circumstances place the victim in reasonable apprehension of receiving a battery. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 1.) Intimidation, however, can be performed merely by communicating a threat to another of a specified kind with the intent to force the victim to perform or omit to perform any act. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 6.) Since the victim need not apprehend immediate harm, the defendant contends, the offense of intimidation should be considered less serious than assault. Defendant bolsters this argument by reference to the list of unlawful threats in the intimidation statute. Taking the example of a threat to inflict harm to property, the defendant points out that an unlawful threat by telephone to break a pencil if the victim does not turn off his television could constitute intimidation. Thus, it is argued, it is obvious that assault is a more serious crime than intimidation.

The short answer to the above example is that no such case is presented to this court. Were we presented with this situation in an actual case, we would be compelled to determine that an enhancement by armed violence would be unconstitutional. But that is not at issue here. The indictment charged the defendant with threatening to inflict physical harm on the victim by use of a deadly weapon with the intent to compel performance and omission of certain acts. It is against these facts that we compare the relative seriousness of the offenses.

It is evident from a comparison of the elements of assault, battery and intimidation that each statute protects individuals from interference with different interests. Battery serves to protect the bodily integrity of the individual. Assault is designed to protect the bodily interest, as well as the right of the individual to be free from immediate fear of such intrusions. Intimidation safeguards the individual’s right to be free from undue coercive forces and the fear that is engendered thereby, regardless of the form of this coercion. We believe that a rational legislature could conclude that a threat of physical harm communicated with the intent to overcome the will of another is a more serious offense than an assault or battery. Given this deference to legislative judgment, we hold that the intimidation statute as enhanced in this case by the armed-violence statute is constitutional. People v. Dixon (1948), 400 Ill. 449, 81 N.E.2d 257.

Defendant also challenges the constitutionality of the intimidation statute under the first amendment. (U.S. Const., amend. I.) Reliance is placed on a recent case holding a similar Montana statute unconstitutional. (Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438.) However, the Illinois Supreme Court has already upheld the constitutionality of the intimidation statute in People v. Holder (1983), 96 Ill. 2d 444, 451 N.E.2d 831. Up and until the Holder holding is modified by the court, we are bound to follow it.

For these, and the foregoing reasons, we affirm the sentences as imposed by the circuit court of Du Page County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE NASH

text:
    SHARON SCHMOLKE et al., Plaintiffs-Appellees, v. HIGHLAND BUTTERFIELD, INC., et al., Defendants-Appellants (Cemetery Management Corporation et al., Defendants).
    Second District
    No. 2—83—0961
    Opinion filed November 9, 1984.
    Mary E. Rosen, of William J. Harte, Ltd., of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz and James C. Spoeri, Assistant Attorneys General, of counsel), for appellee Tyrone C. Fahner.
    Rodney W. Equi, of Donovan & Roberts, P.C., of Wheaton, for other appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendants, Highland Butterfield, Inc., Michael Fumo, George Savoy and Ed Rose, appeal from a summary judgment which enjoined them from interfering with the graves in Allerton Ridge Cemetery and use of the property for other than cemetery purposes. Defendants also appeal from the denial of their motion for summary judgment against plaintiffs, who are 125 individuals alleged to have an interest in plots contained in the cemetery or related to persons buried therein, and the Illinois Attorney General.

The dispositive issue of this case is whether the corporate authorities of a village are authorized to cause the remains of persons buried in a cemetery to be removed pursuant to “An Act to provide for the removal of cemeteries” (Cemetery Act) (Ill. Rev. Stat. 1979, ch. 21, par. 2). That act provides as follows:

“Whenever any cemetery is within the limits of any town, the corporate authorities thereof may, if, in their opinion, any good cause exists why such cemetery should be removed, cause the remains of all persons interred therein to be removed to some other suitable place. Such corporate authorities shall first obtain the assent of the trustees or other persons having the control or ownership of the cemetery, or a majority thereof. When such cemetery is owned by one or more private parties, or private corporation or chartered society, the corporate authorities of such town may require the removal of such cemetery to be done at the expense of such private parties, or private corporations or chartered society, if such removal is based upon their application.”

This action was precipitated by plans of defendant owners of Allerton Ridge Cemetery to convert it, in part, to a planned unit development with shopping district, multiple dwellings and commercial uses. The cemetery has been used for burial purposes for many years and was located adjacent to the village of Lombard in the town of York in Du Page County; it is comprised of approximately 50 acres, 38 of which defendants wish to develop for the other uses. Under the proposed plan, the central 12 acres of the property would be retained for cemetery purposes and the land surrounding that area would be developed. In order to do so, however, it would become necessary to disinter more than 150 bodies for reburial in the central 12-acre area.

In furtherance of its plan, defendants requested annexation of the 50-acre cemetery tract to the village of Lombard, together with a change in zoning from cemetery use to B-3, Community Shopping District, which permitted business and residential use. Defendants entered into an annexation agreement with the village board of trustees in which it was found that development of the property would be beneficial to the village by increasing its tax base and that the commercial uses would generate additional revenues and promote development of the village. The agreement also provided for dedication of part of the cemetery property to the village as a well site and for a contribution of $25,000 to the village by defendants for cost of an exit ramp from the nearby East-West Tollway. It further stipulated that annexation and zoning ordinances to be adopted would incorporate the provisions of the Cemetery Act. In May 1980, the village board of trustees adopted the annexation and rezoning ordinances of the cemetery property.

This action was commenced in October 1981 by the plaintiffs, who are friends or relatives of persons buried in the cemetery. Their complaint for injunctive relief alleged that agents of the owners were removing caskets of deceased persons without first obtaining the consent of relatives and without compliance with section 1 of the Cemetery Act (Ill. Rev. Stat. 1981, ch. 21, par. 2). A temporary restraining order was issued against defendants, and the trial court sua sponte appointed the Illinois Attorney General to represent those persons buried in the cemetery whose interests were not represented and whose next of kin were not ascertained. The Attorney General accepted the appointment and filed a separate complaint for the same relief.

Defendants answered the complaints and both sides ultimately presented motions for summary judgment. The plaintiffs’ motion was supported by affidavits of four 'village trustees in which they essentially stated that the board of trustees had not been requested to make a finding of good cause why the cemetery should be vacated and had not done so. Also, that the matters voted upon and discussed regarding the cemetery related only to the annexation and rezoning of the property. Defendants supported their motion with the annexation and rezoning documents, including the annexation agreement. They also submitted affidavits to the effect that their development plans for the cemetery were submitted to and understood by the village board of trustees and it was the owners’ intent to comply with the Cemetery Act.

In granting summary judgment to plaintiffs and denying defendants’ motion, the trial court found there was no genuine issue of fact remaining for determination as to the essential issue before it of whether defendant owners of the cemetery and the village of Lombard had complied with the provisions of the Cemetery Act. The court determined the “good cause” requirements of the Act had not been met and plaintiffs were entitled to judgment as a matter of law. Defendants appeal.

Summary judgment is properly entered when the pleadings, depositions and admissions on file, together -with any affidavits submitted, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings and other appropriate documents before it strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397.) The function of a reviewing court is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised and, if not, whether judgment was correctly entered as a matter of law. In reviewing a trial court’s entry of summary judgment, we are not limited to the precise reasons cited by that court in entering summary judgment. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 21, 414 N.E.2d 865, appeal denied (1981), 83 Ill. 2d 569; Murphy v. Rochford (1977), 55 Ill. App. 3d 695, 698, 701, 371 N.E.2d 260.

In this court, as in the trial court, the arguments of the parties focus upon whether the requirements of the Cemetery Act have been met. Defendants contend that the village of Lombard implicitly determined that “good cause exists why such cemetery should be removed” (Ill. Rev. Stat. 1979, ch. 21, par. 2) by finding it was in the best interests of the village to annex the property and rezone it for development purposes. Plaintiffs assert that under the standards set forth in Smith v. Ladage (1947), 397 Ill. 336, 74 N.E.2d 497, the village could not and did not make the requisite “good cause” determination of the Cemetery Act.

We agree that the trial court correctly entered summary judgment for plaintiffs, and denied defendants’ similar motion, but do so on the grounds that the village had no authority to cause removal of the cemetery.

The Cemetery Act (Ill. Rev. Stat. 1979, ch. 21, par. 2) provides in pertinent part: “Whenever any cemetery is within the limits of any town, the corporate authorities thereof may, if, in their opinion, any good cause exists why such cemetery should be removed, cause the remains of all persons interred therein to be removed to some other suitable place.” (Emphasis added.)

The Act relied upon by, the parties gives only a town, not a village, the power to remove' a cemetery. The term “town” has been held to denote a township organized under the Township Act (Ill. Rev. Stat. 1979, ch. 139, par. 1 et seq.), and not a chartered or incorporated municipality such as a village. (Phillips v. Town of Scales Mound (1902), 195 Ill. 353, 357, 63 N.E. 180; In re Town of Lisbon Election (1982), 104 Ill. App. 3d 115, 117, 432 N.E.2d 641.) No evidence is shown in the record that the corporate authorities of the town of York, in which the cemetery is located, have considered or acted upon the question of removal of the cemetery. The defendants’ annexation and zoning transactions with the village of Lombard, regardless of the question whether that constituted an implied finding of good cause under the Cemetery Act, cannot establish compliance with the Act as it does not authorize a village to remove cemeteries.

There is a provision of the Illinois Municipal Code which authorizes the corporate authorities of a city to remove a cemetery on the same basis as may a town under the Cemetery Act. (See Ill. Rev. Stat. 1979, ch. 24, par. 11 — 51—1.) As villages are not included in the provision, however, that statute may not be considered as authority for a village to exercise the power. (See Village of DePue v. Banschbach (1916), 273 Ill. 574, 580, 113 N.E. 156.) While the Illinois Municipal Code generally applies to all incorporated municipalities, the Code also provides that if a particular section is limited to cities, and does not include villages, then that intention shall prevail (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 1— 4). See also Ill. Rev. Stat. 1979, ch. 24, par. 11 — 52.1—1, whereby villages are authorized, in circumstances not relevant to this case, to control or vacate certain public graveyards.

We conclude that plaintiffs were entitled to summary judgment, as it is apparent on the record before us that compliance with the Cemetery Act is not shown.

Accordingly, the judgment of the circuit court will be affirmed.

Affirmed.

LINDBERG and UNVERZAGT, JJ., concur.


author: JUSTICE SCHNAKE

text:
    BONANZA INTERNATIONAL, INC., Plaintiff-Appellee, v. MAR-FIL, INC., et al., Defendants-Appellants.
    Second District
    No. 83—994
    Opinion filed November 9, 1984.

      Kenneth A. Abraham & Associates, of Darien, for appellants.
    John R. Wienold, of Puckett, Barnett, Larson, Mickey & Wilson, of Aurora, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This appeal by the defendants, Mario Luperini and Mar-Fil, Inc. (hereinafter Mar-Fil), is from an order of the circuit court of Du Page County denying their petition to vacate a default judgment entered against them and in favor of the plaintiff, Bonanza International, Inc. (hereinafter Bonanza).

Bonanza brought this action originally by complaint filed December 21, 1982. According to the complaint, on November 10, 1977, Luperini and Mar-Fil entered into a franchise agreement with Bonanza regarding the operation of a Bonanza Sirloin Pit restaurant in Darien. The agreement required Luperini and Mar-Fil to pay Bonanza a “royalty/service fee” equal to 4.8% of the restaurant’s gross weekly receipts in return for, among other things, the right to use Bonanza’s trademarks and service marks. The complaint alleged that such fees had not been paid from February 1, 1981, through December 31, 1981, resulting in a total deficiency of $32,062.71, and that an account had been stated in that amount which, in a letter dated December 28, 1981, Luperini and Mar-Fil had agreed to pay. Judgment was sought in that amount for breach of contract and account stated.

Luperini and Mar-Fil were both served with the complaint and a summons on January 4, 1983. Neither defendant filed an appearance or other pleading, however, and on March 1, 1983, Bonanza, without notice to the defendants, filed a motion for default judgment in the amount of $32,062.71 plus costs. On March 14, 1983, the court entered an order of default and continued the case for a hearing on the amount of damages. The defendants were not given notice of said hearing which was held on April 18, 1983.

At the hearing Bonanza presented the court with an affidavit of Gregg Simmons, director of credit and collections for Bonanza. In the affidavit Simmons stated that he was “personally familiar with the [franchise] agreement and all correspondences between [Bonanza] and Mar-Fil, Inc. and Mario Luperini and that all sums due under said agreement as of January 6, 1982, are $32,062.71.” The affidavit further stated that the account stated in that amount “is accurate to this date [April 14, 1983].” Based on this affidavit, the court entered judgment against the defendants in the amount requested plus costs.

Two days later a notice of default judgment was prepared. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1302.) The space for the address of the defendants was left blank, and it appears that the notice was never sent.

On June 30, 1983, Bonanza served Luperini and Mar-Fil with citations to discover assets in order to satisfy the judgment previously entered. The citations were returnable August 1, 1983. On that date an attorney appeared on the defendants’ behalf and filed a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401) to vacate the default judgment, accompanied by an affidavit of Mario Luperini. The petition alleged that the defendants had a meritorious defense “in that the complaint was based on an affidavit which was inaccurate, if not fraudulent and that the amount due and owing was inaccurate due to setoffs which were omitted.” The petition also alleged that the default judgment was entered without any lack of diligence on the defendants’ part. In the accompanying affidavit, Luperini stated that he had been informed by John Boylan, president of Bonanza, that the debt had been cut in half because of consulting work done by Luperini and Mar-Fil for Bonanza. More specifically, the affidavit stated that Luperini and Mar-Fil assisted Bonanza in a study which was to have led to the development of a prototype restaurant based on the concept used by Maximillian’s Restaurant in Darien. Bonanza allegedly spent hours reviewing architectural plans, menus, employee training programs, and food preparation techniques, and taking photographs and measurements of Maximillian’s Restaurant. Luperini also averred that he failed to respond to the complaint and summons because Boylan told him, during a telephone conversation shortly after the suit was filed, that Bonanza would not pursue the case, and that Luperini did not need to file a defense or even consult an attorney. According to the affidavit, Luperini did not realize there was a judgment in the case until he was served with the citation to discover assets.

The court entered an order on August 1, 1983, staying the proceedings under the citations to discover assets, granting Bonanza 21 days to respond to the petition to vacate, and setting a hearing on said petition for August 29,1983.

Bonanza did not file an answer or other pleading directed to the petition to vacate, but did file a counteraffidavit of John Boylan. In the affidavit Boylan admitted that he and Don Thomson of the board of directors of Bonanza went to visit Luperini and to see Maximillian’s Restaurant on June 14, 1982. Maximillian’s had previously been operated by Luperini and Mar-Fil as the Bonanza restaurant which was the subject of the lawsuit. The purpose of the trip was to observe the concept of Maximillian’s Restaurant because Bonanza was in the process of developing an Italian restaurant at that time. Boylan also stated that Thomson and he agreed that, because of Luperini’s cooperation in showing them the concept, that the debt owed to Bonanza “would be reduced *** to the sum of $20,000 if the payment was forthcoming.” According to Boylan, he instructed Gregg Simmons to confirm this arrangement with Luperini by letter.

Finally, Boylan denied that he ever told Luperini that the subsequent lawsuit would not be pursued, that Luperini did not have to file a defense, or that it was unnecessary for him to consult with an attorney.

At the hearing on the petition, no other evidence was introduced; only arguments were heard. The matter was taken under advisement, and the court subsequently entered an order denying the petition to vacate the default judgment. The court found that the petition to vacate and the Luperini affidavit failed to disclose, factually, fraud on the part of Bonanza; failed to set forth, factually, a meritorious defense; and failed to disclose, factually, diligence on the part of Luperini or Mar-Fil. The court also found that Bonanza had not acted unfairly or unreasonably.

A petition under section 2 — 1401 to vacate a default judgment generally must set forth facts showing the existence of a meritorious defense and the exercise of due diligence on the part of the petitioner in presenting both a defense to the lawsuit and the petition to vacate. (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 400 N.E.2d 102.) The petition generally must show that through no fault or negligence of the petitioner, a meritorious defense was not presented to the trial court. (Brunswick v. Mandel (1974), 59 Ill. 2d 502, 322 N.E.2d 25.) One of the guiding principles, however, in the administration of section 2 — 1401 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment when it would be unfair, unjust or unconscionable. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253; Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348.) Under such circumstances, just and good conscience may require that a judgment be vacated even though there may be a lack of due diligence. Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062, 425 N.E.2d 1344; Manny Cab Co. v. McNeil Teaming Co. (1975), 28 Ill. App. 3d 1014, 329 N.E.2d 376.

Although a section 2 — 1401 petition is filed in the same action in which the judgment it seeks to vacate was entered, it is not a continuation thereof. The petition is, in fact, a new action and is subject to the usual rules of civil practice. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) Accordingly, where the respondent fails to file a responsive pleading, the facts properly alleged in the petitioner’s affidavit are not contradicted and must be taken as true. (Windmon v. Banks (1975), 31 Ill. App. 3d 870, 335 N.E.2d 116.) Where a response is made to the section 2 — 1401 petition which raises a genuine dispute as to a material issue of fact, an evidentiary hearing is ordinarily required. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253; McKinnon v. Yellow Cab Co. (1975), 31 Ill. App. 3d 316, 333 N.E.2d 659.

Finally, it should be noted that a section 2 — 1401 petition is initially addressed to the sound discretion of the trial court, and that its decision on the matter should be reversed only in the case of an abuse of discretion. Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 449 N.E.2d 1021.

In the instant case, we believe that the petition to vacate the default judgment and the accompanying affidavit adequately set forth a meritorious defense in the nature of a partial accord and satisfaction. The petition alleges that the amount of the debt stated in the complaint was inaccurate because setoffs were omitted. The Luperini affidavit stated that John Boylan, the president of Bonanza, had informed Luperini that the debt had been cut in half because of consulting work performed for Bonanza by Mar-Fil and Luperini. The affidavit detailed the nature of that consulting work and explained that it was done to help Bonanza develop a prototype restaurant similar to Maximillian’s Restaurant. These averments adequately pleaded a defense in the nature of a partial accord and satisfaction. (See A. & H. Lithoprint, Inc. v. Bernard Dunn Advertising Co. (1967), 82 Ill. App. 2d 409, 226 N.E.2d 483. Compare Graf’s Beverages of Illinois, Inc. v. Tauber (1977), 50 Ill. App. 3d 1047, 366 N.E.2d 150 (mere allegation that the debt was not the defendant’s obligation, but the obligation of others, without any further factual development, too conclusory to show meritorious defense).) Whether the defense of Luperini and MarFil would ultimately prevail at trial is not at issue in the section 2— 1401 proceedings. Yorke v. Stineway Drug Co., Inc. (1982), 110 Ill. App. 3d 1009, 443 N.E.2d 644.

In any event, the counteraffidavit filed by Bonanza substantially supported the section 2 — 1401 petition in this regard. In the affidavit, Boylan admitted that he and a member of Bonanza’s board of directors traveled to visit Luperini and to visit Maximillian’s Restaurant on June 14, 1982. The purpose of the trip was to observe the concept of the restaurant, since Bonanza was in the process of developing an Italian restaurant at that time. According to the affidavit, Boylan agreed that, because of Luperini’s cooperation in showing the concept, the debt would be reduced to $20,000 if the payment was forthcoming. According to Boylan’s affidavit, he informed Gregg Simmons of the arrangement.

The question of due diligence on the part of Luperini and Mar-Fil in presenting a defense to the lawsuit cannot be determined from this record. The petition and accompanying affidavit alleged facts which, if true, might have provided a reasonable excuse for the defendants’ failure to answer or otherwise plead. The affidavit alleges that Boylan told Luperini that the lawsuit would not be pursued and that Luperini did not need to file a defense or even consult an attorney. In the counteraffidavit filed by Bonanza, however, Boylan averred that he did not tell Luperini those things. An evidentiary hearing would be required to resolve this disputed question of fact. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253; McKinnon v. Yellow Cab Co. (1975), 31 Ill. App. 3d 316, 333 N.E.2d 659.

It appears that there was due diligence in filing the petition, since it was filed on the return date of the citations to discover assets, and it is undisputed that Luperini was not informed of the default judgment until he was served with the citations about a month before their return date.

Even though one of the elements of the section 2 — 1401 petition is in dispute, the question of due diligence in presenting a defense to the lawsuit, this cause will not be remanded for an evidentiary hearing. It is our opinion that, even in the absence of due diligence in responding to the complaint, equity, justice and good conscience would require that the default judgment be vacated. As noted above, the petition adequately showed a meritorious defense to the original lawsuit in the nature of a partial accord and satisfaction. If this defense would be vindicated at trial, the conduct of Bonanza in the original lawsuit would be called into question. At the hearing on the question of damages, Bonanza presented an affidavit of Gregg Simmons to the effect that the account stated of $32,062.71 was “accurate to this date [April 14, 1983].” Yet, if the defense would prevail at trial, Bonanza would have known that the account stated had been substantially reduced. Such conduct on the part of Bonanza would impugn the integrity of the original lawsuit. See Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348.

Moreover, it is undisputed that Bonanza waited more than 30 days after the default judgment to commence citation proceedings. Such conduct, although not enough in itself to render a default judgment unfair or unconscionable, has been held to cast a cloud on the proceedings because the standards for vacating a default judgment within 30 days of its entry are less stringent than after that period has elapsed. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Sidenstricker v. Dobbs (1982), 110 Ill. App. 3d 620, 442 N.E.2d 924.

As stated in Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 386 N.E.2d 291, in ruling on a petition to vacate a default judgment, courts should proceed within the framework of the legal philosophy that litigation should be determined on its merits, if possible, and according to the substantive rights of the parties. Rights should be determined by default only as a last resort. In cases such as this, the law, if overcharged with technical severity, can but lead to oppression, and an ultimate defeat of the law itself.

Under the circumstances of this case, considering the showing of a meritorious defense to the original lawsuit, and the conduct of the plaintiff discussed above, we believe justice and good conscience require that the default judgment be vacated. The decision to the contrary by the trial court amounted to an abuse of discretion. Accordingly, the order of the circuit court denying the defendants’ petition to vacate the default judgment is reversed, and this cause is remanded with directions that an order be entered granting the defendants a reasonable period of time in which to answer or otherwise plead with respect to the original complaint.

Reversed and remanded with directions.

UNVERZAGT and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD Y. ROWE, Defendant-Appellee.
    Fourth District
    No. 4—84—0279
    Opinion filed November 13, 1984.

      Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    David B. Woodruff, of Jacksonville, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On January 15, 1984, defendant, Richard Y. Rowe, was charged in the circuit court of Morgan County by separate complaints with the offenses of driving while under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501(a)) and improper lane usage (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 709). He subsequently filed a motion requesting that his arrest be quashed and that all evidence obtained during and following the arrest be suppressed. After a hearing, the court suppressed (1) the results of a breathalyzer test given by police to defendant and evidence of the test having been given, and (2) statements made by defendant to and in the presence of Officers Aydelott and Vanniter of the South Jacksonville police department. The State has appealed pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)).

The motion to suppress asserted that the evidence sought to be suppressed was obtained in violation of defendant’s rights under section 6 (concerning searches, seizures, privacy and interceptions) and section 10 (concerning self-incrimination and double jeopardy) of article I of the Illinois Constitution of 1970. The major thrust of defendant’s contentions was that the evidence was the fruit of his unlawful arrest by the two previously mentioned police officers. He contended that the arrest was illegal because they were police officers of the city of South Jacksonville and the arrest took place in the city of Jackson ville for conduct alleged to have occurred in the latter city. The trial court agreed, and suppressed the evidence for that reason.

The trial court concluded that the police officers had no authority to arrest defendant while acting in their official capacities. At common law, peace officers generally had no authority to make arrests outside the territorial limits of the entity that employed them unless they were in hot pursuit of a suspected felon who was fleeing from that territory. (People v. Marino (1980), 80 Ill. App. 3d 657, 661, 400 N.E.2d 491, 494.) Sections 7 — 4—7 and 7 — 4—8 of the Illinois Municipal Code provide:

“The territory which is embraced within the corporate limits of adjoining municipalities within any county of this State shall be a police district.” Ill. Rev. Stat. 1983, ch. 24, par. 7 — 4—7.
“The police of any municipality in such a police district may go into any part of the district to suppress a riot, to preserve the peace, and to protect the lives, rights, and property of citizens. For these purposes the mayor of any municipality in the district, and the chiefs of police therein, shall use the police forces under their control any where in the district.” Ill. Rev. Stat. 1983, ch. 24, par. 7 — 4—8.

The evidence at the suppression hearing indicated that the two arresting officers had been called to Jacksonville at the request of its police department but had performed their mission and were returning to South Jacksonville at the time of the arrest. Defendant argues that they were not then under the control of the mayor or chief of police of Jacksonville and, thus, were not clothed with the authority provided by the foregoing provisions of the Municipal Code. People v. Marino (1980), 80 Ill. App. 3d 657, 400 N.E.2d 491; People v. Clark (1977), 46 Ill. App. 3d 240, 360 N.E.2d 1160. But see People v. Durham (1979), 71 Ill. App. 3d 725, 390 N.E.2d 517; People v. Lawson (1976), 36 Ill. App. 3d 767, 345 N.E.2d 41; People v. Carnivale (1974), 21 Ill. App. 3d 780, 315 N.E.2d 609, aff’d in part and rev’d in part on other grounds (1975), 61 Ill. 2d 57, 329 N.E.2d 193.

Section 107 — 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 107 — 5(c)) states that “[a]n arrest may be made anywhere within the jurisdiction of this State.” Whether this provision would have given the arresting officers power to make the instant arrest as peace officers is also not entirely clear. (See People v. Weaver (1981), 100 Ill. App. 3d 512, 426 N.E.2d 1227; but see People v. Marino (1980), 80 Ill. App. 3d 657, 400 N.E.2d 491.) The trial court did not deem this legislation to have done so.

We need not decide whether the officers were empowered to make an arrest as peace officers at the time. Such an officer has authority to make arrests when he has a warrant for an individual’s arrest, reasonable belief of the existence of such a warrant or “reasonable grounds to believe that the person is committing or has committed an offense.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 107 — 2.) However, when, as contended here, a crime is committed in the presence of the person making the arrest, a private citizen has virtually the same authority to make the arrest as does a peace officer. Section 107 — 3 of the Code of Criminal Procedure of 1963 states:

“Arrest by Private Person. Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.” (Ill. Rev. Stat. 1983, ch. 38, par. 107 — 3.)

Thus, if the officers had “reasonable grounds” to believe that defendant was committing a crime, they were authorized to arrest him. The validity of the arrest would not have been negated because they believed they were making the arrest as peace officers. People v. Marino (1980), 80 Ill. App. 3d 657, 400 N.E.2d 491.

The trial court was in general agreement with the foregoing analysis of the power of the officers when acting as private citizens, but believed that it was improper and unfair for them, if they actually lacked the authority of peace officers, (1) to have the defendant submit to a breathalyzer test, or (2) to obtain statements from him. Accordingly, the court concluded that the results of the test and any statements taken should be suppressed. We recognize the lack of precedent on the question, but we do not agree with the conclusion reached by the court.

Section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501.2) provides for the use in evidence of the results of a breathalyzer test in a proceeding where, as here, an individual is charged with a violation of section 11 — 501(a). Section 11— 501.2 makes no reference to the relationship of the person making the arrest to (1) the manner in which the test is given, or (2) the admissibility of the results of the test. That section is to be distinguished from section 11 — 501.1 of that code (Ill. Rev. Stat. 1983, ch. 95^2, par. 11 — 501.1), which sets forth the proceedings for the termination of driving privileges upon refusal of a person to submit to a test.

We hold that even if the South Jacksonville officers were beyond their authority in purporting to act as peace officers, that would not taint the breathalyzer test given to defendant, nor would that fact in itself taint any statements given by defendant to or in the presence of the officers. However, the questions of the voluntariness of any such statements and the need for Miranda warnings would be the same as if the officers actually had authority as peace officers. See People v. Seybold (1981), 98 Ill. App. 3d 236, 423 N.E.2d 1132.

Accordingly, we reverse the order of suppression and remand to the circuit court of Morgan County for rehearing on the suppression motion. Upon concluding that the arrest of defendant had tainted his interrogation and the breathalyzer test which he took, the trial court limited the further evidence it would receive. Upon rehearing, the court should receive such further evidence as will be necessary to determine the remaining questions, including the issues of (1) whether the South Jacksonville officers had a reasonable belief that defendant was committing an offense at the time of his arrest, and (2) whether defendant’s rights against self-incrimination were violated.

Reversed and remanded, with directions.

MILLS, P.J., and TRAPP, J., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD G. ADAMS, Defendant-Appellant.
    Fourth District
    No. 4—84—0051
    Opinion filed November 13, 1984.

      James W. Ziegweid, of Quincy, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and Peter C. Drummond, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Donald G. Adams, was arrested and issued a traffic citation on April 27, 1982, for “driving under the influence.” He was requested to submit to a chemical test and refused to do so. On April 28, 1982, the arresting officer completed a “Report of a Refusal to Submit to a Chemical Test” which was filed in the office of the circuit clerk of Adams County on April 29, 1982. Also on this latter date the clerk issued a “Notice to Driver of a Right for a Hearing.” On June 16, 1983, the circuit court dismissed the uniform traffic ticket issued to the defendant on the grounds that it was deficient in that it failed to specifically allege that the defendant had been driving under the influence of alcohol or any other drug or combination of drugs. The case was dismissed, but the State was granted leave to refile. On June 21, 1983, the State filed an information against the defendant charging him with driving under the influence of intoxicating liquor in violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501). On June 24, 1983, the defendant appeared in court, was found guilty as charged and placed on supervision for one year, with the defendant paying a fine of $250 and court costs and being ordered to participate in the program of the Western Illinois Council on Alcoholism.

The record in this case is scant; however, from a nunc pro tunc order dated November 22, 1983, which reflects the action taken by the trial court on June 16, 1983, it is apparent that counsel for the defendant at an implied-consent hearing filed a motion to quash the implied-consent hearing for failure to comply with constitutional requirements. The court made no ruling on the motion, but it was at this time that the trial court dismissed the traffic ticket and granted the State leave to refile.

On November 2, 1983, approximately 18 months after defendant’s arrest and approximately 6 months after the State charged the defendant by information, he (the defendant) made a motion to dismiss the implied-consent hearing. The trial court denied this motion and by order entered December 13, 1983, found the defendant had refused to take a breathalyzer examination as required by section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1), and that his license should be suspended. This appeal ensued from this order.

The sole issue presented in this appeal is whether the trial court erred in denying the defendant’s motion to dismiss the implied-consent hearing.

The defendant argues that section 11 — 501.1(c) (Ill. Rev. Stat. 1981, eh. 951/2, par. 11 — 501.1(c)) provides a jurisdictional condition precedent to an implied-consent hearing by virtue of the following language of the statute:

“*** Such hearing shall proceed in the court in the same manner as other civil proceedings, shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Code or a similar provision of a local ordinance as evidenced by the issuance of a uniform traffic ticket; ***.”

It is defendant’s contention that the foregoing language requires that his arrest must be evidenced by the issuance of a valid uniform traffic ticket and that the ticket issued to him was void because it merely charged him as “driving under the influence.” The State, on the other hand, argues that even if the ticket was insufficient for the purpose of serving as a complaint, it is a sufficient means of proving an arrest for the purpose of an implied-consent hearing. We agree with the State.

Justice Webber of the Fourth District Appellate Court has authored two well-reasoned opinions which are dispositive of this appeal. (See People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 454 N.E.2d 1166; and People v. Horberg (1984), 123 Ill. App. 3d 456, 462 N.E.2d 831.) In Ellerbusch, it was determined that the issuance of a ticket is directory and not mandatory, “it is only one way in which the fact of arrest may be established.” (118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.) The defendant in the instant case does not argue that he was not arrested but in his brief admits that he was. The issuance of a traffic ticket need hot precede an officer’s request that a driver of a motor vehicle take a breath test. (People v. Wierman (1982), 107 Ill. App. 3d 7, 436 N.E.2d 1081.) The defendant’s argument that to effect an arrest there must be an issuance of .a valid traffic ticket is without merit. In the case of Horberg, a traffic ticket issued to a driver was found to be invalid for the identical reason as that present in the instant case. The State in Horberg did not refile a charge as was done in the instant case, yet the Fourth District Appellate Court held that the invalid ticket was evidence of an arrest and would satisfy the statutory requirements for an implied-consent hearing. People v. Horberg (1984), 123 Ill. App. 3d 456, 462 N.E.2d 831.

The defendant attempts to attach importance to the fact that, after the State filed the information which correctly charged him, the State had ample opportunity to file a refusal to take a chemical test upon the charge contained in the information, but, having failed to do so, the defendant was prejudiced, as he was required to be subjected to an implied-consent hearing on a charge for which he could have never been convicted. Stated more concisely, the defendant in another manner again raises his claim that an implied-consent hearing must be supported by the issuance of a charge against him. As heretofore noted, such is not the law.

The defendant overlooks the nature of an implied-consent hearing. The court does not suspend the drivers license. Rather, that is an administrative function of the Secretary of State and is not penal in nature. (People v. Finley (1974), 21 Ill. App. 3d 335, 315 N.E.2d 229.) An implied-consent hearing covers only the issues of (1) whether the person was placed under arrest for an offense described in section 11 — 501; (2) whether the arresting officer had reasonable grounds to believe that such person was driving under the influence of alcohol; and (3) whether such person refused to submit to the test upon the request of the law enforcement officer. See People v. Horberg (1984), 123 Ill. App. 3d 456, 459, 462 N.E.2d 831, 833.

The circuit court was correct in finding that the defendant was arrested for an offense described in section 11 — 501(a)(2), and hence was correct in denying the motion to dismiss the implied-consent hearing.

It is unfortunate that there was such a long passage of time between defendant’s arrest and the implied-consent hearing. However, we fail to find that the delay in any way prejudiced the defendant. He was plainly aware of his right to the implied-consent hearing. It can be assumed that the delay is attributable to the defendant. If he had taken no action, his license would by operation of law have been suspended after 28 days had expired from the time he received notice of his right to a hearing.

We have alluded to the fact that the record in this appeal is scant. Any doubts arising from an incomplete record on appeal must be resolved against the defendant, whose responsibility it is to provide a complete record for review. People v. Hefley (1982), 109 Ill. App. 3d 74, 440 N.E.2d 173.

For the reasons set forth the judgment of the circuit court of Adams County is affirmed.

Affirmed.

HEIPLE and BARRY, JJ., concur.