text:
      In re MARRIAGE OF LYDIA VAN WINKLE, a/k/a Lydia Carpio, Petitioner-Appellee, and COLONEL VAN WINKLE, Respondent-Appellant.
    Third District
    No. 81-440
    Opinion filed June 16, 1982.

      Alexander M. Jarrin, of Moline, for appellant.
    John R. McClean, Jr., of Lousberg and McClean, of Rock Island, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The appellant, Colonel Van Winkle, initiated a petition for modification in the circuit court of Henry County requesting that the court terminate his obligation to pay child support on behalf of his minor child, Gary Van Winkle. This was followed by a petition filed by appellee, Lydia Carpió, the child’s custodial parent, requesting that the court order Colonel to reimburse her for legal and medical expenses paid by her in connection with defending Gary in a juvenile proceeding which resulted in an adjudication of delinquency and placement with the Department of Corrections. The court denied Colonel’s petition for modification and further ordered Colonel to reimburse Lydia for one-half of the extraordinary legal and medical expenses incurred on Gary’s behalf. It is from this order that Colonel appeals. The two issues before us are: (1) whether the trial court erred in denying Colonel’s petition for modification; and (2) whether the trial court erred in ordering him to reimburse Lydia for medical and legal expenses incurred for Gary.

Colonel and Lydia were finally divorced on October 30,1968. Lydia was awarded custody of their minor children and Colonel was ordered to pay child support which, at the time of the instant proceedings, amounted to $30 per week for the one remaining minor child, Gary.

On April 23,1981, Gary was adjudicated a delinquent and committed to the Department of Corrections, Juvenile Division, as a result of juvenile proceedings brought against him in Rock Island County. Custody and guardianship were transferred to the assistant director of the Department accordingly.

Incidental to the juvenile charges, Gary underwent psychological and neurological evaluation. Pursuant to the terms of the original divorce decree, the bills for these services were submitted to the carrier of health insurance provided by Colonel. After the carrier had discharged its obligation under the policy, there remained $481.07 in noncovered medical expenses, and this amount was billed to Lydia. Li addition, counsel retained by Lydia for Gary’s defense charged Lydia $2,000 for his services.

The change in Gary’s custody and the extraordinary expenses incurred on Gary’s behalf prompted the petitions which are the subject of the instant litigation. Upon consideration of the parties’ oral and written arguments, the trial court entered its written findings and determination as hereinbefore indicated. Because we are unable to determine from the record on appeal whether or not the trial court considered reducing the amount of child support to reflect the change in circumstances brought about by Gary’s juvenile placement, we remand this cause to the trial court on this issue. We reverse the order of the trial court respecting reimbursement for medical and legal expenses.

It is well settled that a substantial change in circumstances will warrant modification of child support. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) The transfer of custody of a child has been determined to be such a change in circumstances. See Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31.

The sole substantial change in circumstances alleged by Colonel Van Winkle in support of his petition for modification was the fact that Gary was no longer in the custody of his mother. Evidence was introduced to establish that the Department of Corrections makes no charges to parents for the support of juveniles placed in the care of its juvenile division. Other evidence was admitted which tended to demonstrate that Lydia sustained certain fixed expenses for the maintenance of her home to which, presumably, Gary would return upon his release from the Department of Corrections.

The trial court’s written order contains the foUowing finding respecting Colonel’s petition: “[Bjased on the pleadings, evidence, stipulated facts and law, the order earlier entered on July 21,1980 [fixing the amount of support at $30 per week] as to support of said minor should not be modified, and is therefore in full force and effect.” We agree with the trial court’s finding as a matter of public policy that the placement of a minor child with the Department of Corrections does not relieve the parents of their duty of support. The trial court correctly denied Colonel’s request that his support obligation be terminated. The fact, however, that Gary’s current needs, while in the custody of State juvenile authorities, have substantiaUy decreased cannot be denied. If, in fact, $30 per week represented a proper balance between Gary’s needs and Colonel’s ability to support him prior to his delinquency adjudication, then it would appear that an imbalance may have been achieved upon Gary’s placement with the Department of Corrections. If so, reduction in child support is appropriate. (See Dull v. Dull (1979), 73 Ill. App. 3d 1015, 392 N.E.2d 421.) While we recognize the wide discretion accorded the trial judge in such matters (Sullivan v. Sullivan (1978), 57 Ill. App. 3d 958, 373 N.E.2d 829), we nonetheless must remand this cause because we cannot determine based on the record on review whether the judge in this case did in fact exercise her discretion in denying in toto Colonel’s petition. Although not specifically requested in his prayer for relief, it was unquestionably within the scope of the trial judge’s discretion to reduce child support payments in consideration of the change of circumstances even if termination was not warranted by the facts. The record is silent as to why the trial court chose to deny any form of relief whatsoever for the noncustodial parent. By remanding this cause, we do not intend to imply that continuation of $30 per week child support during the minor child’s placement in the Department of Corrections would be an abuse of discretion in this case. (See Breuer v. Breuer (1972), 4 Ill. App. 3d 179, 280 N.E.2d 518 (noncustodial father required to pay child support to custodial parent for periods when child was absent from home to attend college).) We observe merely that the record does not disclose that a reduction in child support was considered by the trial court in its determination and that we cannot determine on the record before us that such a reduction was not warranted under the circumstances presented.

We next consider whether the trial court’s award of reimbursement to Lydia Carpió for medical expenses and attorney fees was erroneous. It is Colonel’s position that the trial court lacks authority to award any reimbursement for medical and private attorney fees expended on Gary’s behalf in the absence of a specific statutory provision therefor. He relies upon section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510) in asserting that Lydia is barred from recovering reimbursement for expenses incurred prior to the date of filing her petition therefor in the trial court.

Lydia, on the other hand, argues that the public policy of Illinois is to protect minors against whom juvenile proceedings are initiated (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 20) and to require parents to provide, to the extent possible, for the support of their minor children (Ill. Rev. Stat. 1979, ch. 40, par. 506). Therefore, the argument continues, any extraordinary expenses in the nature of necessaries, including reasonable fees incurred by the custodial parent in defending a minor child, should be reimbursable from the noncustodial parent.

The issue presented to us in the instant case appears to be one of first impression in Illinois. The record discloses that the original divorce decree dated October 30,1968, provided that Colonel would pay $20 per week in child support and that he would maintain health and accident insurance on the minor children. No further provisions were made as to extraordinary expenses of the children. On September 8,1972, Lydia filed a petition to modify, requesting an increase in support. This petition was disposed of by the parties’ stipulation increasing the weekly support payment to $40 per week.

A second petition to modify was filed on November 18, 1977, in which Colonel requested a reduction in support because of the emancipation of one minor child. The court, accordingly, modified the weekly payment to $20. On June 23, 1980, Lydia filed a petition to modify, requesting an increase because Colonel’s income had increased and Gary’s needs had increased with age. Pursuant to the parties’ stipulation, the court increased Colonel’s weekly support payment to $30.

Between this last order and the petitions in the instant cause, juvenile proceedings were commenced against Gary on a burglary charge. Private counsel for Gary was retained on January 27, 1981, and the $2,000 paid by Lydia as a retainer on that date was disbursed as fees for services rendered on May 6, 1981. In preparing Gary’s defense, psychological services were required which extended from December 19,1980, through April 7, 1981. Fees for these services totaled $556.07, of which $481.07 was not covered by insurance. On April 30, 1981, Colonel requested abatement or termination because of the adjudication of delinquency against Gary. Lydia’s petition was thereafter filed on May 15, 1981.

The rule in Illinois is well established that one parent may not unilaterally modify a support decree thereby affecting the expectations of the other parent as to support payments. Therefore, any increase or reduction in support must be sought through the circuit court which retains jurisdiction for this purpose. Ill. Rev. Stat. 1979, ch. 40, par. 510; Guest v. Guest (1953), 351 Ill. App. 148, 114 N.E.2d 326 (retroactive modifications not allowed).

In Berg v. Berg (1967), 85 Ill. App. 2d 98, 229 N.E.2d 282, an original divorce decree entered in 1957 made the wife responsible for all medical expenses. In July 1964, the divorce decree was modified to require the husband to pay for extraordinary medical bills. In February 1965, the wife filed a petition alleging that she had incurred certain extraordinary medical expenses in 1963 and that the husband had refused to pay for such expenses. Pursuant to this petition the trial court, in June 1965, ordered the husband to pay one-half of a medical bill incurred in 1963, and the husband appealed from that order. The reviewing court reversed, holding that since the medical bill was for services rendered in a period prior to the time when the original divorce decree had been modified to require the husband to pay medical bills, the husband could not be assessed for one-half of the 1963 medical bill. The modification order of July 1964 applied only to medical expenses which would be incurred thereafter.

The present statutory authority for modifying support provisions permits the trial court to modify the support obligation retroactive to the date of filing of the modification petition. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a).) Although the petition filed by Lydia in the instant case is not entitled a petition for modification, it was clearly advanced as a product of Colonel’s obligation of support for Gary. She argues on appeal that since she was not seeking a permanent modification regarding medical/ legal expenses, the rule precluding retroactive support modification should not operate to defeat her claim. This argument fails to convince. In effect, Lydia’s petition seeks retroactive modification of the divorce decree to require Colonel to contribute towards extraordinary medical/ legal expenses incurred on Gary’s behalf. Were the instant petition to be granted, we perceive of no reason why Lydia should not anticipate similar reimbursement for extraordinary medical/legal expenses in the future as well. Since the original decree lacked such a provision, we cannot escape the conclusion that Lydia’s petition is limited by the statute governing modification.

To circumvent the inherent hardship to the noncustodial parent who (as would appear to be the case herein) has not been consulted about the necessity for professional services prior to the rendering thereof, the statute requires that the parent seeking modification first file a petition with the circuit court. This procedure gives fair notice to the parent whose expectations as to the amount of support would be affected. Since the services for which Lydia presently claims reimbursement were not, in fact, of an emergency nature, we find no basis in law or public policy for carving an exception in the instant case so as to grant her petition.

Lydia suggests that authority for ordering Colonel to pay for extraordinary medical expenses may be found in In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17. In Thompson the trial court’s order required the supporting parent to pay for “any future extraordinary medical, hospital, or dental expenses of the minor children.” (Emphasis added.) (79 Ill. App. 3d 310, 312, 398 N.E.2d 17, 20.) The general rule that retroactive modifications are not allowed in Illinois is, thus, unaffected by Thompson.

Several authorities are also cited in Lydia’s brief for the proposition that attorney fees incurred in defending Gary in the juvenile proceedings, like medical expenses, are “necessary” expenditures for which Colonel, as supporting parent, should be responsible. We have reviewed these authorities and find that they do not alter the fact that reimbursement for expenses incurred prior to the date of filing a petition for modification may not be had in Illinois.

State v. Allen Circuit Court (1960), 241 Ind. 627, 170 N.E.2d 663, Griston v. Stousland (Sup. Ct. 1946), 186 Misc. 201, 60 N.Y.S.2d 118, and In re Rickey H. (1970), 2 Cal. 3d 513, 468 P.2d 204, 86 Cal. Rptr. 76, stand for the policy that in criminal or juvenile proceedings where a minor’s liberty is at stake the right to counsel is of constitutional dimensions and the fees charged therefor are in the nature of necessaries for which parents may be held responsible. None of these cases, however, involved, as here, parents who were divorced at the time the legal expenses were incurred.

While there are no Illinois decisions on point, we are of the opinion that the public policy of Illinois conforms to that expressed in the California, Indiana, and New York cases to the extent that the family expense statute (Ill. Rev. Stat. 1979, ch. 40, par. 1015) requires parents to pay for the necessary expenses of their minor children, including reasonable attorney fees. However, as Colonel correctly points out, this statute does not apply where the parents are divorced. Hess v. Slutsky (1922), 224 Ill. App. 419.

Lydia also refers us to Price v. Perkins (1966), 242 Md. 501, 219 A.2d 557, a case factually analogous to the situation with which we are presently concerned. In Price, the attorney who had been hired by a divorced mother to represent her minor child in proceedings to determine whether the child should be enrolled at a school for mentally disturbed children sued the father at law for attorney fees. In Price, as in the present case, the services were not of a nature contemplated in the original decree, and they were rendered prior to the filing of a petition to recover reimbursement therefor. The court determined that the attorney fees were both reasonable and necessary. The court concluded that the attorney could enforce a suit at law to recover his fees from the father.

Subsequent to Price, the Maryland Court of Special Appeals was asked to rule upon a case in which the custodial mother sought reimbursement from the father for college expenses incurred by her on behalf of the parties’ minor child. (Fainberg v. Rosen (1971), 12 Md. App. 351, 278 A.2d 630.) The trial court, sitting in equity, had granted a retroactive increase in support payments. On review, the court declared that this retroactive increase was in error, and affirmed only the increase in support payments due as of the date of filing of the petition for modification. In a footnote the court observed that the question of whether the retroactive reimbursement would be recoverable by the wife in an action at common law was not before the court; thus, the question was not being decided.

Having reviewed the relevant Maryland statutes respecting child support and having compared them to the laws of Illinois, we conclude that the rationale of Price and Fainberg does not permit retroactive reimbursement of extraordinary expenses in the present case.

In Illinois any common law rights parents may have had to recover for expenses incurred on behalf of their children have been abrogated by the codification of the family expense statute and the Illinois Marriage and Dissolution of Marriage Act — the former applicable prior to divorce and the latter thereafter.

The Illinois rule announced in Hess v. Slutsky (1922), 224 Ill. App. 419, precludes allowance of “necessary” expenses incurred after divorce unless the request for reimbursement is brought to the attention of the trial court prior to or concomitant with the contracting of the expenses. This rule apparently derives from the general principle that a decree determining child support to be paid by the noncustodial parent is final for the period of time it covers and allowance of retroactive modifications would be tantamount to setting aside the decree after obligations thereunder have been performed.

This rule, however, is not, in our opinion, such a hard and fast rule as would operate to deny justice in a different set of facts, e.g., where the expenses arise in the nature of a medical emergency situation in which it would be absurd to expect the custodial parent to pursue a petition for modification prior to meeting exigencies of the emergency. (See In re Marriage of Ford (1972), 24 Cal. App. 3d 62, 100 Cal. Rptr. 817.) Such is not the case before us since it is obvious from the record that the psychological and legal expenses incurred herein extended over a period of time from at least January through April of 1981. In addition, we note that there is no indication of record that Lydia discussed Gary’s need for the professional services with Colonel or ever requested that he contribute toward the expenses prior to May 15,1981, when she petitioned the court for reimbursement. On these facts, we must conclude that Lydia voluntarily incurred the extraordinary expenses. Her voluntary payments are nonreimbursable.

Finally, we have considered appellee’s argument that the trial court’s award of reimbursement in this case was proper under the Illinois Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37). While the Juvenile Court Act requires that a minor be represented by counsel at juvenile proceedings and authorizes the court to order parents, to the extent of their ability, to pay a reasonable fee for such representation, we fail to find anything in the Act which would permit one divorced parent to recover reimbursement from the other after the professional fees have been fully earned and paid for. Whether an attorney might be able to recover from the noncustodial parent reasonable fees for representation of a minor child under the Juvenile Court Act is a question that is not before us. (See In re Nelson (1977), 54 Ill. App. 3d 412, 369 N.E.2d 515 (noncustodial parent ordered to reimburse county for funds expended for support of child during foster home placement)). As indicated earlier in this opinion, the provisions of the Illinois Marriage and Dissolution of Marriage Act control in any action brought between the parents and relating to child support.

In sum we find that the trial court committed reversible error in granting the petition for reimbursement of legal and medical expenses. Accordingly, we vacate the order of reimbursement.

Cause remanded for further proceedings consistent with the views expressed herein.

Reversed in part; remanded.

SCOTT and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MILTON D. BATCHELDER, Defendant-Appellee.
    Third District
    No. 81-577
    Opinion filed June 16, 1982.

      Gary L. Morris, Assistant Corporation Counsel, of Peoria, for appellant.
    No brief filed for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This cause involves the implied consent hearing held to determine whether Milton D. Batchelder’s driver’s license should be suspended for refusing to submit to a breathalyzer test following his arrest for driving while under the influence of alcohol. The trial court granted Batchelder’s motion to dismiss on the grounds that the affidavit of the arresting officer was insufficient to comply with the statutory requirements. The defendant-appellee entered no appearance in the appeal and filed no brief. The appellant did not request oral argument. Accordingly, the appeal was taken for consideration and disposition on the brief of the appellant.

The threshold question for consideration is whether this proceeding is appealable by the prosecution. If this proceeding were viewed as an acquittal of criminal charges, it would not be appealable by the State. If, on the other hand, the proceedings are civil in nature, then the State would have a perfect right to appeal. In truth, the proceedings have elements of both a civil and criminal nature. One could call them quasi-criminal or quasi-civil. Our supreme court has ruled, however, that these proceedings are appealable in the same manner as other civil proceedings. People v. Malloy (1979), 76 Ill. 2d 513; see also Park Forest v. Angel (1976), 37 Ill. App. 3d 746.

In this case, the trial judge found that the arresting officer’s affidavit did not comply with the statute because it failed to state facts which showed that Mr. Batchelder was under the influence of intoxicating liquor. An examination of the statute, however, discloses that it merely requires a recitation of the officer’s conclusion that he "* * * had reasonable cause to believe the person was driving * * * while under the influence of intoxicating liquor. * * *" (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1(d).) In short, the statute does not require the setting forth of underlying facts and circumstances which prop up the officer’s conclusions. In fact, the affidavit in this case contained the precise statutory language quoted and more. It went on to state that the defendant was "* * * traveling too fast in alley with pedestrians around, crossed Walnut w/o slowing, maintained speed behind Slipper Club then parked abruptly behind 519 S.W. Adams. * * *”

While we agree with the trial judge that the underlying facts that were stated are insufficient to support the officer’s conclusion, the recitation of such facts are surplusage to the requirements of the statute. Thus, the trial judge reasoned incorrectly in dismissing the proceedings because the affidavit did not comply with the statute. The officer’s affidavit literally complied with the statute. That is to say, since the statute does not require the recital of facts that underlie the officer’s conclusion, the statute is not violated when such underlying facts are not set forth. The statute was complied with.

We agree, however, that the affidavit was insufficient. The insufficiency is not due to its failure to comport with the statute, however. The insufficiency of the affidavit is due to its failure to comport with the United States Constitution, specifically, the fourth and fourteenth amendments thereof.

While it might be argued that the failure of the statute to require the affidavit to set forth underlying facts renders the statute itself unconstitutional, we reject such an interpretation because of the general principle of statutory construction that, if possible, legislation is to be so construed as not to violate the Constitution. An important corollary of this general principle is that a statute need not be treated as unconstitutional or void for not containing a qualification which the law will imply. The operation of a statute in such cases may be interpreted within constitutional limits without necessitating a judgment that the act itself is void. A statute may be constitutional although it lacks provisions which meet constitutional requirements, if it has terms not excluding such requirements. And in this situation, the court is justified in holding that the statute was intended to be subject to such requirements, and that those requirements are to be considered as embodied in the statute. (See 16 Am. Jur. 2d Constitutional Law sec. 225 (1979).) Thus, where the articulation of the officer’s grounds for probable cause are not expressly provided for by statute, yet constitutional guarantees provide for such; we construe the law as requiring the officer’s conclusion that he had probable cause to be bolstered with a recital of the facts upon which his belief is based. Thus, both the statute and the Constitution are served.

The fourth and fourteenth amendments to the United States Constitution pertain to this situation because stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of those amendments, even though the purpose of the stop is limited and the resulting detention quite brief. (Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391.) That the due process clause applies to a State’s suspension or revocation of a driver’s license is clear from the Supreme Court’s decisions in Dixon v. Love (1977), 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723, and Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586. The essential purpose of the constitutional requirements is to impose a standard of reasonableness upon the exercise of discretion by government officials, including police officers, in order to safeguard the privacy and security of individuals against arbitrary invasions. Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816, quoting Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727.

The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s fourth amendment interests against its promotion of legitimate governmental interests. Construed in this manner, the reasonableness usually requires, at a minimum, that the facts upon which the intrusion is based be capable of measurement against “an objective standard” Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.

Applying the balancing test to the instant situation, we believe it reasonable that the arresting officer set out the underlying circumstances which provided him with a reasonable belief that the arrested person was driving under the influence of intoxicating liquor. Within the scope of inquiry at the driver’s license suspension proceeding is the precise issue of whether the arresting officer had reasonable grounds for such belief. His belief must be measured against the objective standard of an impartial member of the judiciary and subject to the confrontation, explanation and rebuttal by the arrested driver. But such a time-honored method cannot be utilized unless the grounds for probable cause are set forth in the police officer’s report or affidavit. We see the requirement that the arresting officer state the underlying facts which support his conclusion as a minimal burden on the government. The citizen is thus protected from unreasonable deprivations of his liberty and loss of driving privileges.

True enough, highway carnage due to drunken driving is a serious problem. True enough, drunken driving should be discouraged and, where possible, prevented altogether. In so proceeding, however, police practices must conform to both statutory and constitutional requirements.

It cannot be doubted that it is a major inconvenience for a driver going about his business to be stopped by a police officer and required to take a breathalyzer test on penalty of losing his license. The interruption, without regard to the urgency of the driver’s mission, could not take less than a full hour of time and, probably, considerably more time than an hour. Without statutory and constitutional direction that the officer detail the underlying facts supporting his conclusion, the police would possess an absolute license to require any driver at any time and under any circumstances to either take a breathalyzer test or lose his license. Such a procedure cannot be tolerated as it would permit and, in some cases, invite active police harassment.

In the instant case the arresting officer did specify in his affidavit and report the grounds for his belief that Mr. Batchelder was driving while under the influence of intoxicating liquor in that Mr. Batchelder was * * * traveling too fast in alley with pedestrians around, crossed Walnut w/o slowing, maintained speed behind Slipper Club then parked abruptly behind 519 S.W. Adams. * * *" Such a recital is insufficient to support the officer’s conclusion that the driver was under the influence of intoxicating liquor. We find, for instance, no allegation of unsteady postural conduct or alcoholic odor emanating from Mr. Batchelder. While his driving conduct might suggest other vehicular violations, it is deficient, standing alone, to support a conclusion that he was driving while under the influence of intoxicating liquor.

For the reasons herein stated, we affirm the dismissal in the case.

Affirmed.

BARRY, P. J., and SCOTT, J., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    RUSSELL DeSUTTER et al., Plaintiffs-Appellees, v. THE SOUTH MOLINE TOWNSHIP BOARD et al., Defendants-Appellants.
    Third District
    No. 81-612
    Opinion filed June 18, 1982.
    HEIPLE, J., dissenting.
    Stuart R. Lefstein, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, and Tom M. Lytton, of East Moline, for appellants.
    Franklin S. Wallace, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff taxpayers filed a suit in the circuit court of Rock Island County challenging the right of South Moline Township to pay lump sum expenses to certain officials of South Moline Township. The case was heard on a stipulation of facts in a nonjury trial. The trial court found the allowance to be unconstitutional, and the individual defendants were ordered to make reimbursement for allowances received in excess of actual expenditures, and this appeal ensued.

The scenario of events which must be considered by this court are set forth in the stipulation of facts, the pertinent part of which provides as follows:

“3. Defendants are the South Moline Township Board of Trustees and its Supervisor, Clerk and Road Commissioner.
4. On March 1,1977, the South Moline Township Board of Trustees, at a regularly called board meeting, set salary and expense allowances to become effective upon the election of the next board. The pertinent salary and expense allowances were set as follows: Supervisor was to receive $12,500.00 a year and $1,000.00 as District Road Treasurer a year salary and an expense account of $200.00 per month; the Clerk was to receive $4,200.00 a year salary and an expense account of $80.00 per month; the Road Commissioner was to receive $13,000.00 a year salary and an expense account of $100.00 per month.
5. Elections for a new Township Board and Officers were held on April 5,1977.
6. The new board and officers were sworn in on April 25,1977.
7. The newly elected officers were: Supervisor, Larry Burns; Clerk, Virginia Ryan; and Road Commissioner, Lester Vande Heyden, who was succeeded upon retirement by John Bernard on April 18, 1978.
8. On April 11,1978, at the South Moline Township Town Meeting, a motion was made and carried that all travel expenses be itemized and reimbursed at the rate of $.17 per mile.
9. On April 18,1978, at the regularly called meeting of the South Moline Township Board, a motion was made and passed that said expenses be turned in every two weeks with payment of expenses once a month.
10. On October 16, 1979, at the regularly called meeting of the South Moline Township Board, a motion was made and carried that the lump sum allowances be reinstated for Supervisor, Town Clerk, Assessor and the Road Commissioner.”

We deem the pleadings filed in this case to be significant in that the amended complaint of the plaintiff, the answer filed in the same and an undenied affirmative defense all proceeded and were predicated upon the assumption that the so-called expense allowances were to be paid and in fact were paid regardless of whether or not expenses were actually incurred. The affirmative defense recited that the additional money received by the township officials was “intended * * * ” to be an increase in compensation.” The amended complaint stated that the “flat rate” expense accounts amounted to a raising of salaries. The pleadings clearly establish that the township board’s resolution of March 1, 1977, was intended to increase the compensation of the township officers. The trial court in its memorandum opinion found that the additional money awarded to the town officers and entitled “lump sum expense allowances” were in fact an increase in compensation.

Agreeing with the parties in this case and the trial court we are presented with the narrow issue as to whether the raise in compensation provided for on March 1, 1977, by the township board of trustees is violative of our State Constitution of 1970.

In addressing the issue we first note that on or before the last Tuesday of March immediately preceding the election of township officers, the board of town auditors shall establish the compensation to be paid each township officer elected at the forthcoming election. (Ill. Rev. Stat. 1975, ch. 139, par. 126.7.) Our township code provides that the term “town auditors” means and refers to “board of township trustees.” (Ill. Rev. Stat. 1975, ch. 139, par. 117.) Though not presented as an issue, these statutory provisions clearly establish that if action is taken in a timely manner the “board of township trustees” is empowered to establish the compensation to be paid to each township officer.

Our. State Constitution of 1970, in regard to salaries of elected officers, provides:

“An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” Ill. Const. 1970, art. VII, sec. 9(b).

Both the statutory and constitutional provisions regarding an increase in compensation were complied with by the “board of township trustees” as to the action taken on March 1, 1977. The action was taken prior to the last Tuesday of March preceding the election of township officers which was held on April 5, 1977, and prior to their installation on April 25, 1977. Regardless of the terminology used, the increased compensation to be received by the township officers constituted “a raising of the salaries” of the elected officials. This in fact was asserted by the plaintiffs in their complaint. The defendants affirmatively pleaded that an increase in compensation was the board’s intention, and this pleading was not denied. The plaintiffs classified the board’s action as increased salaries and adhered to that position. We agree, but in doing so find that there was no constitutional violation as determined by the trial court.

The trial court held that the attempt to increase compensation under the guise of calling it expenses was an unconstitutional legislative act. In a memorandum opinion the trial judge cites the constitutional provision which provides that neither an increase or decrease in the salary of an elected officer shall take effect during the term for which the officer is elected. (Ill. Const. 1970, art. VII, sec. 9(b).) A reading of the memorandum opinion fails to disclose the trial court’s reasoning which compelled his conclusion that a violation had occurred. Surmising that the court was concerned with the abolition of the lump sum allowances in April 1978, and the reinstatement of the same by the board on October 16, 1979, we still fail to find that such actions supported a conclusion that a constitutional violation had occurred. The constitutional provision allegedly violated prevents not only an increase in salaries during an officer’s term of office but also prohibits a decrease. The abolition of the lump sum allowances was void and of no effect. The same did not require the board’s action reinstating the same on October 16, 1979. The “absolutely void” doctrine was applicable, and the April 1978 efforts to reduce the compensation in question were null and void. (See Dalton v. City of Moline (1977), 48 Ill. App. 3d 494, 359 N.E.2d 500; People ex rel. Northrup v. City of Chicago (1941), 308 Ill. App. 284, 31 N.E.2d 337.) The latter cited case was decided pursuant to the provisions of our State constitution of 1870 which prohibited an increase or decrease in fees, salary or compensation of a municipal officer during that officer’s term of office. Ill. Const. 1870, art. IX, sec. 11.

Lastly, the trial court relied heavily on the case of Cullom v. Dolloff (1880), 94 Ill. 330, in determining that the March 1, 1977, resolution only permitted the township officers to be reimbursed for expenses actually incurred. We believe this reliance to be misplaced since the case involved the salary of a county officer who prior to his term of office had his salary established by the county board with the additional grant of $4,500 for necessary clerk hire. Our supreme court concluded that the word “necessary” limited the amounts which could be paid to the county officer to the amounts which were actually expended for clerk hire. The defendants in the instant case argue that because the word “necessary” is absent in the March 1, 1977, resolution, the Cullom case is inapplicable and with this argument we agree.

For the reasons set forth the judgment of the circuit court of Rock Island County is reversed.

Reversed.

ALLOY, J., concurs.

JUSTICE HEIPLE,

dissenting:

This is a taxpayer’s suit. Plaintiffs, Illinois citizens of Rock Island County, challenge the authority of the South Moline Township Eoard, the defendant, to pay its government officers lump-sum expense allowances regardless of the amount of actual expenditures incurred in connection with their official duties. A constitutional question is involved. My colleagues validate the board’s power to make such remittances, thereby reversing the trial court. I dissent.

On March 1, 1977, the board determined the following salaries and expense accounts for each of its officers:

Elections were held on April 5, 1977. The new officers were sworn in on April 25, 1977. A year later the board passed two resolutions. The first required its officers to itemize their automobile expenses at $.17 per mile. The second motion authorized payment of such expenses monthly with itemizations to be submitted every two weeks. On October 16, 1979, the lump-sum allowances, without itemization for actual expenses, were reinstated by board resolution.

Plaintiffs contend the payment of lump-sum or flat-rate expenses without an accounting violates the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, sec. 9(b), which says: “An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” The trial judge concluded the board was merely increasing its officers salaries by means of unaudited expense accounts, thereby violating such provision. The officers were ordered to reimburse the township for those amounts not actually incurred for expenses but allocated by the board to such accounts.

My colleagues conclude the March 1, 1977, board resolution authorizing lump-sum expense accounts was constitutional since the Board intended the accounts to serve as compensation. And, since the allotments for such “compensation” were made prior to their election, no constitutional violation occurred. This reasoning ignores basic business accounting principles, as well as Illinois common law.

An expense is an outlay or disbursement for costs incurred in connection with an employee’s trade or business. It is actually incurred when the employee is indebted for its cost from his own individual funds. An expense is not actually incurred unless money is paid by, or credit is extended to, the debtor. A salary, on the other hand, is a fixed amount payable at specified intervals for personal services rendered. An account for expenses is not a salary. Nor is the opposite true. They are separate accounts on any business ledger. If an employee need not account for his expenses, that amount of money allocated to his expenses is nothing more than additional remuneration for his personal services. Otherwise, it is a gift. To conclude differently is merely artifice. The board’s March 1, 1977, resolution fixed the officers’ salaries and their individual expense accounts. These are separate, identifiable accounts. The resolution says, or intimates, nothing whereby such accounts are to be deemed interchangeable. Nor should we infer such a result as defendant insists we should. To say both accounts are to be deemed compensation reads into the board’s resolution something which is not there.

This constitutional proviso does not directly address the salaries or expenses of local government officials. Its concern is the compensation of such an officer. The compensation of such a township officer may or may not include the expenses of his office. (See Jennings v. Fayette County (1881), 97 Ill. 419, 422.) Accordingly, a township board may fix one of its officials’ compensation so it will include the expenses of his office as well as the personal services of the officer. (E.g., Kilgore v. People (1875), 76 Ill. 548.) The constitution only prohibits compensation from being increased or diminished during the official’s term of office. Expenses may be changed from time to time by a county or township board since the necessities of the official’s office rarely remain constant. Briscoe v. Clark County (1880), 95 Ill. 309, 311-12.

But none of these cases stand for the proposition that expenses which are not actually incurred by a local government officer can be paid as a salary, where no board resolution allowing this exists. Such are not expenses at all. Our Illinois Supreme Court so indicated 80 years ago:

“If the compensation, including the expenses, is fixed at one sum, the officer is entitled to retain that amount, if it is paid by the fees of his office. If it is fixed in separate sums — one sum for the compensation of the officer and another sum for the expenses — the officer can only retain out of the fees collected a sufficient sum to reimburse him for moneys actually paid out for reasonable and necessary expenses of his office. He may retain the whole compensation, but cannot retain what is either unnecessary for expenses or what is not actually paid out for services rendered.” (Coles County v. Messer (1901), 195 Ill. 540, 545.)

The board could not pay out sums to township officials for expenses not actually incurred. But it did. When it did, it increased the compensation of each officer above the amount of his or her previously determined salary. The board had no authority to subsidize its officers’ salaries in such a fashion. Thus, it ran afoul of the constitutional proscription. Those moneys for expenses not actually incurred merely increased each officer’s salary and therein his compensation. If expenses were not actually incurred they should have been returned to the township’s treasury. They could not be paid as salaries without increasing each official’s salary. Therefore, those amounts which were paid for expenses not incurred by Board officers after they took office must be accounted for and remitted to the township treasury.

For the reasons stated, I would affirm the trial court.


author: JUSTICE HEIPLE JUSTICE ALLOY,

text:
    LAURA L. BURKART, Plaintiff-Appellee, v. MARY LOU TORAASON, Defendant.—(THE MEDICAL PROTECTIVE COMPANY OF FORT WAYNE, INDIANA, Garnishee-Appellant.)
    Third District
    No. 81-738
    Opinion filed June 18, 1982.
    ALLOY, J., dissenting.
    James S. Mills and Gates W. Clancy, both of Geneva, for appellant.
    James D. Skaar, Donald J. Fabian, and Charles J. Myler, all of Ruddy, Myler, Ruddy & Fabian, of Aurora, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal of a garnishment judgment in favor of the garnisher. In a previous and underlying proceeding, plaintiff, Laura Bur kart, who is the garnisher in this proceeding, obtained a $350,000 judgment against Mary Toraason, defendant. That judgment debt was insured to the extent of $100,000 by the garnishee, the Medical Protective Company of Fort Wayne, Indiana (“Medical Protective”). Medical Protective attempted to dismiss the garnishment action. A La Salle County Circuit Judge ruled for plaintiff. The garnishee appeals. Ill. Rev. Stat. 1979, ch. 62, par. 52.

The facts are undisputed. On November 9, 1979, the plaintiff sued Mary Toraason for medical malpractice. The defendant had a liability insurance contract with the garnishee which required the latter to defend her against plaintiff’s claim. The policy limit was $100,000. Medical Protective undertook the defense, but did so unsuccessfully. On July 10,1981, the circuit court entered judgment against defendant for $350,000. On October 9, 1981, Mary Toraason filed a timely notice of appeal of that judgment. No appeal bond was posted. Prior thereto, on September 23, 1981, plaintiff filed an affidavit of garnishment in the circuit court, reciting the aforementioned judgment as a debt, that it remained unpaid, and her belief the garnishee was indebted to defendant. Medical Protective moved to dismiss the action. It said it was not then liable to the plaintiff and based its defense on the insurance contract between it and the defendant, which stated:

"* * *
No action shall be maintained against the Company to recover a loss covered by this policy unless brought after the amount of such loss shall have been fixed either by a final judgment against the insured by a court of last resort after trial of the issue or by agreement of the parties with the written consent of the Company and unless brought within two years and one day after such judgment or written agreement, except that, if such period is in conflict with the statutes of the state wherein this policy is issued, it is hereby amended to conform with such statutes.
* * *”

The garnishee advised the trial judge, at the time of the hearing on the motion to dismiss, that a notice of appeal was filed on the medical malpractice judgment entered against its insured. Medical Protective contended plaintiff’s garnishment action was premature, or contingent upon a final judgment entered against Toraason by a court of last resort in the Illinois court system. The trial judge disagreed, and entered judgment for plaintiff for $100,000, the policy limit. This appeal followed.

We are now advised the underlying medical malpractice judgment has been affirmed on appeal. Undaunted, garnishee persists, maintaining the appellate court’s judgment is not a final one until the Illinois Supreme Court acts one way or the other on its application for leave to appeal.

The issue before us is whether the aforementioned contractual provision of garnishee’s insurance policy precludes recovery by a judgment creditor in a garnishment proceeding until appellate review of the underlying judgment has been exhausted. The answer is yes.

Plaintiff says her garnishment action was timely since Medical Protective did not file an appeal bond in the tort action, which supposedly violated Supreme Court Rule 305 (81 Ill. 2d R. 305). Thus, she concludes, since the underlying judgment was not stayed, it was final. (Cuttone v. Peters (1966), 67 Ill. App. 2d 1; Colon v. Marzec (1969), 116 Ill. App. 2d 278.) We disagree. For the reasons which follow, we reverse the judgment of the trial court.

In Ancateau v. Commercial. Casualty Insurance Co. (1943), 318 Ill. App. 553, the underlying judgment of liability exceeded the limit of the policy of insurance. That policy provided:

“ ‘No action shall lie against the Company unless, as a condition precedent thereto, * * * the amount of the Insured’s obligation to pay shall have been finally determined by either judgment against the Insured after actual trial or by written agreement of the Insured, the claimant, and the Company.’ ” (318 Ill. App. 553, 559.)

The court concluded this no action clause deferred the insurer’s duty to pay a judgment against the insured until that judgment became final beyond the possibility of reversal or modification on appeal. In other words, the proceeds of the insurance contract were not subject to garnishment during an appeal of the underlying judgment. The policy language in the instant case is more limiting and more specific than the policy language in Ancateau. Going beyond the language of Ancateau, the policy language in the case at hand clearly spells out that no action shall be maintained until the judgment has been finally fixed by a court of last resort.

The cases of Cuttone v. Peters and Colon v. Marzec which are relied on by plaintiff both depart from the ruling and rationale of the earlier case of Ancateau v. Commercial Casualty. While we prefer the rationale of Ancateau which is supportive of our ruling in the case at hand, reliance on Ancateau is not an indispensible underpinning to our ruling. And, while we disagree with the pronouncements of Cuttone and Colon, the results in those cases are not necessarily inconsistent with the result we reach in the case at hand.

In Cuttone, the underlying tort judgment was within the limits of the insurance contract. Consequently, obtaining an appeal bond presented no problem for the insurer. It could have simply filed the insurance policy as collateral for the appeal bond while the underlying judgment was reviewed. But the insurer did not do that. Why it did not is unexplained in the reported opinion. Furthermore, in Cuttone, the insurer did not argue that plaintiff’s garnishment of the contractual debt was contingent on any provision in its insurance contract with the insured. Thus, the issue of interpretation of the insurance contract was neither raised nor decided in that case. In the case of Colon v. Marzec, plaintiff obtained a tort judgment from defendant Marzec for $53,000. An appeal was taken and a $75,000 appeal bond set. The bond was not posted. Hence, no supersedeas, issued. The amount of the insurance contract was $20,000. Plaintiff sought to garnish the policy before an appeal of the underlying personal injury suit was decided. The insurer argued that justice would not be served if the amount of the insurance proceeds were collected while an appeal pended on the underlying judgment. This argument was rejected. As in Cuttone, the issue of interpretation of the insurance contract was neither raised nor decided in Colon.

In Colon, as in the cause at bar, the insurer is thrust into a knotty predicament. The underlying judgment exceeds the contractual obligation the insurer potentially owes. Thus, the policy is an unsatisfactory surety for an appeal bond. Of course, the insurer could file a financial guarantee for the entire judgment. In so doing it would compensate for the difference between the policy limit and the entire judgment or what the court determines is a reasonable amount. (81 Ill. 2d R. 305(a).) But the insurer has no duty to post such additional collateral. Indeed, if it did it might broaden its potential liability beyond the policy limit and its original obligation under the contract with its insured.

In Colon the insurer did not rely on any specific contractual provision to buttress its appeal, but essentially asked the court to rewrite its insurance contract by “balancing the equities.” This invitation was declined. In the present cause, however, the garnishee argues that the specific no-action clause of its contract makes its liability under such policy contingent upon a final judgment entered by a court of last resort of this State. Such a contract proviso makes this cause distinctly different than that presented in Colon.

On the general proposition, various jurisdictions have reached different results. (Annot., 31 A.L.R.3d 899 (1970).) Many of these cases are based on different statutory schemes pertaining to garnishment proceedings. Moreover, we observe that some of these opinions which allow a garnishment action prior to an appellate decision on the underlying suit do so because of the insurer’s failure to state specifically in the insurance contract that its liability will not accrue until after judgment rendered against the insured is affirmed on appeal. (E.g., Conley v. Singleton (Fla. App. 1965), 171 So. 2d 65.) As stated, Medical Protective explicitly provided in its contract that its liability to pay under the policy was contingent upon a final judgment by a court of last resort. The court of last resort in this State is the Illinois Supreme Court.

Several vital reasons exist for holding that plaintiff’s garnishment action is unavailable. First, she could not recover against the garnishee unless the defendant could recover. Unless a debt arose from Medical Protective to the defendant, the plaintiff had no chose-in-action to proceed against. (Schneider v. Autoist Mutual Insurance Co. (1931), 346 Ill. 137, 139.) The insurer’s liability arose only from the contract of insurance. Next, the Illinois “direct action” statute (Ill. Rev. Stat. 1979, ch. 73, par. 1000 et seq.) provides a remedy for the judgment creditor which is limited to the express terms of any insurance coverage. Thus, it would be anomalous for us to ignore the insurer’s contract merely because this is a garnishment action. If we did, we would not only ignore the specific language of the contract, but also, in essence, subvert the legislative method devised for a creditor to collect a judgment. Cf. Holloway, Insurer Liability on Appeal of the Excess Judgment, 61 Ill. B.J. 472 (1973).

As we have indicated above, the contractual clause in the insurance contract is clear. The reference to a court of last resort is unambiguous. That means the Illinois Supreme Court. And, as we cannot misinterpret that language, neither should we ignore it. Plaintiff in this case, as a third-party beneficiary of the insurance contract, has no higher standing than the insured herself and is in no position to enforce a contract unless the contracting party could, herself, do so. That is the entire point. So-called equitable considerations are insufficient to justify the rewriting of a contract of insurance in favor of an unnamed third-party beneficiary where that insurance contract was bargained for and entered into at arms length between the contracting parties.

For the reasons stated, the garnishment judgment of the La Salle County Circuit Court is hereby reversed.

Reversed.

STOUDER, J., concurs.

JUSTICE ALLOY,

dissenting:

I respectfully dissent from the majority opinion. I would affirm on the basis of the conclusion and reasoning of the court in Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1060-61, 399 N.E.2d 216. In that case, the court again expressly rejected Ancateau even where a contract defense was presented. There the court correctly, I believe, put the interests of a plaintiff in a sure and speedy remedy ahead of the interests of the insurance company. As noted therein, the insurance company has a remedy should the judgment ultimately be reversed on appeal.

In view of the fact that Kooyenga is the most recent case of precedential value in this State concerning this issue and the majority opinion in the instant case will be making a contrary change in the applicable rule of law, the issue should be considered by the Illinois Supreme Court.


author: PRESIDING JUSTICE GREEN

text:
    JEFFERSON LEWIS, Trustee of the Laura Marie Warnsing Trust, Plaintiff-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellant.
    Fourth District
    No. 17642
    Opinion filed June 15, 1982.
    Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, of Springfield, for appellant.
    Nolan Lipsky, of Petersburg, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the right to possession of an area extending from north to south of approximately one-half mile in length and three feet underground where defendant, Illinois Bell Telephone Company, had laid a cable to be used for the transmission of messages for its customers and those of two other utilities. The cable was laid under a ditch which was some five to 10 feet east of the east edge of the paved portion of a highway. The fee interest in the east half of the paved portion of the highway, the ditch area and the adjoining land to the east, was in plaintiff as trustee. Many years prior to the laying of the cable, plaintiff’s predecessors had granted the State of Illinois an easement for highway purposes over the area covered by the highway and the ditch. An easement for the laying of a telephone cable in an area near defendant’s cable had earlier been granted to another utility but no easement had been granted to defendant.

On September 14, 1981, plaintiff brought suit in the circuit court of Menard County in forcible entry and detainer (Ill. Rev. Stat. 1979, ch. 57, par. 1 et seq.) against defendant seeking possession of the area where the cable had been placed. On November 6,1981, the court entered judgment for plaintiff. The judgment awarded plaintiff possession but its effect was stayed for 60 days. The judgment further provided that it would be vacated if within that time either the parties agreed as to the compensation to be paid plaintiff for an easement or defendant initiated proceedings to take the easement by eminent domain. Defendant has appealed. We affirm.

An understanding of the case before us requires knowledge of section 9 — 113 of the Hlinois Highway Code (Ill. Rev. Stat. 1979,. ch. 121, par. 9 — 113) which provides that “[n]o ditches, drains, track, rails, poles, wires, pipe line or other equipment * * * shall be located, placed or constructed upon or along” any road or highway of a governmental unit, other than a road or highway within a municipality, without the written consent of “the appropriate highway authority.” The section further provides that upon receiving the foregoing authority:

“The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law plat all damages the owners may sustain by reason of such use of the highway, such damages to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain.” Ill. Rev. Stat. 1979, ch. 121, par. 9 — 113.

The evidence at trial showed that defendant had obtained consent of the State of Illinois to lay its cables under the ditch. The evidence also showed that the parties had been unable to agree as to compensation to be paid to plaintiff. Apparently defendant installed the cable on the assumption that section 9 — 113 gave it authority to do so whenever consent of the State was obtained and that compensation due the plaintiff, if any, would be determined later.

The facts of this case are almost exactly the same as those in Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App. 3d 1047, 425 N.E.2d 55. That case involved a similar dispute which arose when, after being unable to agree with another owner of the adjacent land and of the fee subject to a highway easement, defendant obtained consent of the State to lay another segment of the same telephone cable line involved in the present case under the highway easement and proceeded to do so without the fee owner’s consent. The fee owner then obtained a judgment in forcible entry and detainer against the defendant. On appeal, we affirmed. We held that section 9 — 113 was not a delegation of the power of eminent domain to those required to obtain consent under section 9 — 113 but a limitation on their power of eminent domain. We stated that the entity seeking to further encumber land subject to an easement for highway or road purposes is required not only to obtain the consent of the governmental unit having the easement but also to bring an action in eminent domain against the fee owner. Although affirming, we directed the trial court to enter a supplementary order requiring that the stay previously granted by-the trial court pending the appeal be extended and the defendant be required, within 60 days, either to agree with plaintiff as to compensation or to initiate proceedings in eminent domain to obtain the easement being used. The trial court order in the case on review was patterned after the order we directed in that case.

Despite the factual similarity between the foregoing case and the instant one, defendant maintains the precedent is not controlling for two reasons. First, defendant correctly asserts that in order to prove a cause of action in forcible entry and detainer as pleaded by plaintiff, he was required to prove that he was in possession of the real estate interest, in which possession was sought, at the time of the claimed forcible entry by the defendant. (Ill. Rev. Stat. 1979, ch. 57, par. 2; Thompson v. Sornberger (1871), 59 Ill. 326; Davis v. Robinson (1939), 302 Ill. App. 365, 23 N.E.2d 816.) That issue was not raised in Lewis I but has been raised here, and defendant asserts that the possession in plaintiff prior to the forcible entry was not proved. Secondly, defendant relies upon dictum in Gammers v. Marion Cablevision (1976), 64 Ill. 2d 97, 354 N.E.2d 353, to the effect that underground installations which, as those here, benefit the public and do not impair the use of the highway, are part of the highway easement and not an additional burden on the fee. The statement in Gammers distinguished underground installations from above ground installations which admittedly were an additional burden of the fee and entitled the entity owning the fee and adjacent land to compensation for the additional burden. The question of whether underground installations such as that involved here fall within the highway easement was apparently not raised in Lewis I either because the opinion indicated the defendant agreed that some compensation was due the plaintiff.

We address the second issue first because, if the placement of the cables underground was a part of the use of the highway easement, then plaintiff would not have been in possession of the property interest involved when defendant installed the cables.

Illinois precedent for defendant’s theory begins with Barrows v. City of Sycamore (1894), 150 Ill. 588, 37 N.E. 1096. There, a city erected a water tower in the center of a city street. An adjoining owner’s complaint for damages resulting from the presence of the water tower was held to have been properly dismissed as to most counts. The supreme court stated that the placement of the tower in the street was in violation of the trust under which the city held the fee title to the area of the streets but held that the obstruction of the street created no right to damages in a particular individual. The court found that one count seeking damages for obstruction of light to the plaintiff’s lot did state a cause of action.

In Chicago Title & Trust Co. v. Village of Burr Ridge (1976), 41 Ill. App. 3d 112, 354 N.E.2d 61, the appellate court affirmed a circuit court judgment dismissing a suit brought by an adjoining landowner who owned the fee interest in the area covered by a street, seeking to enjoin a city from constructing a water main under the street. The land had been annexed to the city after the highway easement had been given by the adjoining owner’s predecessor in title. The appellate court recognized a distinction between the use of streets in incorporated municipalities for sewers, gas, and water pipes and similar use of the roads and highways. The court then said:

“But it is generally assumed that underground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. Barrows v. City of Sycamore (1894), 15[0] Ill. 588, 593; Cammers v. Marion Cablevision [(1976)], 64 Ill. 2d 97.” 41 Ill. App. 3d 112, 114, 354 N.E.2d 61, 62.

We do not interpret anything stated in Barrows to indicate that underground installations for public use which do not impair the highway easement are a part of the highway easement. Certainly such a conclusion was no part of the decision. There the use in issue was an above-ground structure, and the city held not merely an easement but a fee interest in the street, albeit one which was subject to a trust. Subsequent to Barrows, in Springer v. City of Chicago (1923), 308 Ill. 356, 139 N.E. 414, the supreme court held that the fee owners of a lot which extended into a street were entitled to compensation from a city that placed a sewer under the portion of the lot that extended into the street. Cammers concerned a private as distinguished from a public use of an easement under a highway.

We interpret the rationale of Burr Ridge to be that when the highway became incorporated into the municipality, the highway became subject to being treated as a street laid out by the municipality. The opinion cited Town of Palatine v. Kreuger (1887), 121 Ill. 72, 12 N.E. 75, as espousing that rule and also mentioned that roads and highways within municipalities do not come within the purview of the previously mentioned section 9 — 113 of the Illinois Highway Code which mentions the right of adjoining owners to damages.

We recognize that many States have adopted defendant’s theory. (See 29A C.J.S. Eminent Domain sec. 133 (1965); 26 Am. Jur. 2d Eminent Domain sec. 225 (1966 and 1981 Supp.).) However, some have not. (Frederick Gas Co. v. Abrams (1972), 264 Md. 135, 286 A.2d 766; Koch v. Louisiana Power & Light Co. (La. App. 1974), 298 So. 2d 124.) We do not find the theory to have been adopted in Illinois, at least where, as here, the land subject to the highway easement is not in an incorporated area. Defendant recognizes that in laying the underground conduit, it subjected itself to section 9 — 113 of the Highway Code, the language of which recognizes that owners of the fee are entitled to damages when additional public use is made of the land. The section makes no distinction between underground, surface, or above ground installations. The fee owner was held to have suffered an additional burden upon his interest when a city placed an underground installation below the street in Springer. We, accordingly, hold the conduit installed by defendant not to have been a use of the highway easement but to have constituted an additional burden upon plaintiff’s fee interest.

We now turn to the question of whether, just prior to the time defendant installed the underground conduit, plaintiff was in possession of the fee interest of the land subject to the highway easement. We are aware of no case dealing with possession under these circumstances. Cases cited by defendant concern the question of possession of the surface and turn on whether the plaintiff had fenced the land (Allen v. Tobias (1875), 77 Ill. 169), cultivated it (Thompson v. Sornberger (1875), 78 Ill. 353), or was in physical occupation of it (Huftalin v. Misner (1873), 70 Ill. 205).

Defendant correctly points out that by the deed of dedication the prior owners of the underlying fee had agreed to completely vacate the surface of the land covered by the easement. However, when a person enters a tract with fee title thereto, the individual’s entry upon or improvement of a portion of the tract is deemed a possession of the entire tract. (Fairman v. Beal (1852), 14 Ill. 244.) Here, plaintiff’s predecessors had possession of an entire tract which included the land upon which the highway easement was later imposed. Upon granting the easement, plaintiff’s predecessors gave up right of possession of the surface, but their continued possession in all respects of the adjoining land would indicate a continuing possession of the rights not part of the easement. The evidence showed plaintiff and those holding title before him had paid taxes on the portion of the tract covered by the highway easement. Ordinarily, payment of taxes on a tract is insufficient to prove possession. Here, where it is accompanied by full possession of the land adjacent and no indication of an intent upon the part of the fee holders to give up possession of the rights not a part of the highway easement, we deem the evidence sufficient for the court to have found plaintiff to have been in possession of the rights invaded by the laying of the conduit.

Defendant also complains that the judgment of the trial court found defendant’s entry upon the premises to have been “wilful” and that defendant “wilfully” installed the cables. It deems the findings not to be germane to the sole issue of who was entitled to possession of the real property interest in question. The findings were pertinent, however, to showing the forcible nature of defendant’s conduct.

We affirm.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON ELY, Defendant-Appellant.
    Fourth District
    No. 17645
    Opinion filed June 15, 1982.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant was charged with two counts of home invasion, two counts of armed robbery, three counts of armed violence, and one count of burglary. These charges arose from an incident which occurred on June 30, 1981, in Quincy. At his arraignment on August 5, 1981, defendant entered pleas of not guilty on all counts.

At a hearing held on September 4, 1981, the trial court was advised that the defendant would, as part of a plea agreement with the State’s Attorney’s office, enter pleas of guilty to one count of armed robbery and one count of armed violence in exchange for the State’s agreement to dismiss the remaining six counts. The court was told that the plea agreement did not involve any promises regarding the sentence to be imposed. The trial court admonished the defendant pursuant to the requirements of Supreme Court Rule 402 (85 Ill. 2d R. 402) before accepting the defendant’s offer to plead guilty to the two counts in question.

The trial court was provided with a factual basis for the pleas which tended to establish that the defendant and Carl Griggsby forced their way into the home of the victims, a doctor and his wife, at gunpoint on the evening of June 30, 1981, and proceeded to tie up the victims and loot their residence. In summarizing the testimony that would have been presented, the State’s Attorney stated that the wife would testify that she was sexually assaulted by the defendant before he left her residence. The State’s Attorney also noted that defendant had not been charged with committing rape in connection with this occurrence. Defendant’s attorney objected to the reference to the alleged sexual assault of the wife because “there is no charge of that nature having been made at any time with reference to the facts we are here about.” The trial court overruled defendant’s objection. The defendant persisted in his request to change his plea from not guilty to guilty. The trial court entered judgments of conviction on those two counts.

The sentencing hearing was held on October 16, 1981. A presentence report was prepared prior to the hearing. When the court inquired as to whether there were any alterations or corrections that should be made in the report, defendant’s counsel objected to summaries of police department reports of the incident that were contained in the presentence report. Those summaries contain statements of the wife describing the incident; it also included her references to a sexual assault having been committed by the defendant upon her. Defendant objected on the grounds that rape was never charged and that to consider evidence of that offense at the sentencing hearing would be to punish the defendant for an offense with which he has never been charged.

The trial court overruled defendant’s objection, stating that it considered it important in sentencing to know “as many of the facts and circumstances as possible.”

The prosecution then began presenting its evidence in aggravation, which consisted primarily of the testimony of the victims. The wife testified that she and her husband had a late dinner on the evening of June 30, 1981. After dinner she went into the backyard to feed the dog. She stated that two masked black intruders jumped her outside her home and subdued her by covering her mouth and nose. They told her repeatedly that they would kill her if she failed to cooperate. Defendant and Griggsby beat her over the head and marched her into the house with a knife at her back and a gun at her head. Inside the house, defendant bound the doctor with electrical wire. The doctor asked defendant to keep the bonds loose because damage would result to his hands if the bonds were kept tight. He told defendant that he needed his hands because he was a surgeon. Defendant responded by tightening the bonds. The doctor also asked defendant to be careful with his wife because she had viral meningitis and a head injury would be especially dangerous to her. Defendant responded by striking the wife repeatedly in the head until she dropped to the floor.

After defendant and Griggsby went through the house searching for valuables, they returned to where the doctor lay bound and then tied up the wife. Defendant demanded to know the location of the victims’ safe. When the doctor stated that they had no safe, defendant repeatedly struck the wife in the head and face and stepped on the doctor’s throat. Defendant then announced that he would rape the wife. He had Griggsby cut the wire which had tied her legs together. Defendant removed her underpants and engaged in forcible sexual intercourse with her. During the assault, defendant said to the doctor, “Nothing you can do about it. How does it feel?” and, “You are really going to have a heart attack.” When he finished sexually assaulting the wife, defendant wiped his penis on the doctor’s head and struck him. At the time of the offenses, the doctor was 65 years old and his wife was approximately the same age.

As a result of the sexual assault, the wife sustained a tear in her vagina which bled for a week after the offense. She also suffered nerve damage to her nose and experienced continuing headaches as a result of the blows she received about the face and head. The doctor suffers an apparent permanent numbness in the top half of his index finger as a result of his hands having been bound too tightly. Although the damage does not preclude his work as a surgeon, he stated that he is handicapped as a result.

Both the doctor and his wife came to this country as refugees. They fled the Soviet Union in the early 1920s and fled Europe after World War II. Both viewed this incident as the most horrible experience of their lives. The doctor testified, “The physical pain is nothing to the emotional and mental devastation to all of us. I really feel I would be better off dead.”

No evidence in mitigation was presented in behalf of the defendant. After hearing arguments of counsel, the trial court reviewed the statutory factors in mitigation and aggravation. The court found that the offenses were accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The court further observed that the armed robbery “is probably the most repulsive, diabolic, cruel and inhumane armed robbery that has been committed in this country.” The court noted that not only were these offenses ones that qualified for an extended term based on the brutal and heinous behavior accompanying the offense, but that the court could imagine no more heinous and brutal behavior associated with an. armed robbery than that which was present in the instant case. The court sentenced the defendant to two concurrent extended terms of 60 years’ imprisonment for the convictions of armed robbery and armed violence.

Defendant moved to vacate the guilty pleas on November 12, 1981. The defendant alleged that his sentence was improper because the trial court was influenced by evidence presented at the sentencing hearing regarding the sexual assault of the wife. The trial court denied the motion on December 2,1981. The court stated that it did not consider the rape as such in sentencing the defendant, but considered it only from the standpoint of the force that had been used in the commission of the offenses charged.

Defendant presents one issue on appeal: whether the trial court erred in relying upon the characteristics of an offense not charged for the requisite finding that the offenses to which the defendant pleaded guilty were brutal and heinous.

Since the defendant’s claim revolves around the factors used by the trial judge in sentencing the defendant to an extended term, we consider it important that the judge’s comments regarding the nature of the offenses be set forth. Judge Dittmeyer stated:

“We get to the question of does — do the circumstances surrounding these offenses amount to exceptionally brutal or heinous behavior indicative of wanton cruelty, because if I make a finding that those circumstances are such, then Mr. Ely is subject to an extended term of between 30 and 60 years in the penitentiary, some fixed, definite, determinated term within that range.
I have reviewed the presentence investigation report on several occasions; I have given a lot of thought to this case. This is the type of a case where a Judge must make up his own mind. He cannot look for help anywhere else. It is entirely up to him as to what his decision should be, as to what a penalty should be, keeping in mind society’s best interests, the defendant’s best interests, and what the impact has been on the victims.
I am well aware that the theory behind sentencing in our state is two-fold, one is rehabilitation of the defendant, the other is punishment of the defendant.
As I review the facts surrounding the offenses in this case there was extreme brutality. [The wife] was struck with a pistol by a healthy 23 year old young man struck up on her forehead, struck up on her face, struck up on her nose, and not just once, but pursuant to the testimony at least four or maybe five or six times during the entire course of this event. They were shackled, the two of them, with cords, both their legs and their arms, and I am not considering Mr. Ely’s conduct as rape as such, but only considering it from the standpoint of force, and it obviously was a very forcible procedure that he performed. The vagina of [the wife’s] was torn; it bled; it necessitated medical attention. That is force. The doctor, due to the force and the tightness of the restraints that were applied to his right hand caused him some numbness that still persists in his right index finger. He’s a skilled surgeon and although he is performing surgery he says that still causes him some problems, and since three and a half months have elapsed since the date of that trauma he and his consulting neurologist are now concerned as to whether or not that will not be a residual or permanent disability.
[The wife], due to the blows on her head, and she had had severe meningitis which had substantially receded, but due to the blows on her head has headaches, and as her doctor says in his report the prognosis is guarded, that not enough time has elapsed to determine whether there will be permanent injury to her as a result of those blows that aggravated her pre-existing condition.
I have been associated with the law in one form or another for perhaps 35 years — almost that long — either as a practicing lawyer or as a Judge, and I have some acquaintanceship or familiarity with many cases that have occurred here in Adams County, and to me this is probably the most repulsive, diabolic, cruel and inhumane armed robbery that has been committed in this county. There was a viciousness displayed in this case, great brutality displayed in this case, and the Court for this record is going to specifically find that both of these felonies were accompanied by exceptionally brutal and not or, but and heinous behavior indicative of wanton cruelty.
And, therefore, Mr. Ely, you are subject to the extended term.”

Section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2) allows the trial judge to sentence a defendant to an extended term if one of the aggravating factors set forth in section 5 — 5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)) is present. Section 5 — 5—3.2(b) provides that an adult offender is eligible for an extended term under section 5 — 8—2 if he was convicted of a felony and the offense “was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

Our supreme court recently considered the issue of whether a trial judge may, in imposing an extended term sentence, consider evidence of misconduct by the defendant which did not result in prosecution and conviction in People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344. In LaPointe, defendant pleaded guilty to murder and was sentenced to life in prison without parole. On appeal, defendant contended that the trial court, in sentencing him, erred by considering testimony that the defendant had solicited another to commit a crime, since no prosecution or conviction resulted from the alleged solicitation.

The court rejected defendant’s argument. The court distinguished the types of evidence that can be considered by a judge in passing sentence from the evidence which is admissible at trial. A trial judge, in determining the nature and degree of punishment, is not confined to the evidence presented at trial. He may search anywhere, within reasonable bounds, for facts which aid him in crafting a proper sentence. Evidence of criminal conduct which has not been the subject of prosecution and conviction is admissible at the sentencing hearing; however, the trial judge must exercise care to insure that the information is relevant and accurate. See People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.) The testimony of the victims regarding the sexual assault which accompanied the offenses charged was relevant to the question of whether the offense was accompanied by extremely brutal and heinous behavior indicative of wanton cruelty. We reject defendant’s claim that the sexual assault of the wife occurred after the offenses with which defendant was charged had been completed. The sexual assault occurred at the same place and time as the offenses charged. It was but one violent act in a series of violent acts committed by the defendant in the course of his armed robbery of the victims.

Defendant relies on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, for the proposition that wanton cruelty associated with one of the defendant’s convictions may not serve as the basis for an extended term for another conviction which does not demonstrate the same character. Defendant’s reading of Evans is not quite correct. Evans held that an extended term is permissible only if the most serious offense of which the defendant is convicted is accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. In any event, Evans is inapplicable to the case at bar because the brutal and heinous behavior necessary for the imposition of an extended term accompanied both the armed robbery and armed violence offenses.

Moreover, even if we were to agree with the defendant’s position that the trial court erred in considering the sexual assault in determining whether the offenses were accompanied by brutal and heinous conduct, any error was harmless. In addition to sexually assaulting the wife in front of her husband, defendant and his partner beat her about the head and face even after they were informed that she had viral meningitis and that a head injury could be extremely dangerous. When the doctor asked that the electrical wire binding his hands be loosened because he was a surgeon and feared injury to his hands, defendant responded by tightening the bonds. Throughout the robbery, defendant shouted vulgarities at the victims and seemingly took a great deal of satisfaction in terrorizing them.

The entire incident on the night of June 30, 1981, was characterized by great brutality and cruelty by the defendant towards his victims. These acts were despicable and reflect a complete lack of humanity and common decency. Even without the sexual assault, the record fully supports Judge Dittmeyer’s decision to impose an extended term upon the defendant. The sentence imposed by the trial court did not amount to an abuse of discretion.

The judgment of the circuit court of Adams County is affirmed.

Affirmed.

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