text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD LILLARD, Defendant-Appellant.
    Third District
    No. 82—677
    Opinion filed May 19, 1983.
    Rehearing denied June 17, 1983.

      Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

On March 12, 1982, the defendant, Richard Lillard, was charged by indictment with retail theft. (Ill. Rev. Stat. 1981, ch. 38, par. 16A—3(a).) He entered a plea of not guilty and the cause proceeded to a jury trial in the circuit court of Kankakee County on August 11, 1982. The evidence presented during the trial is briefly summarized as there is no issue of reasonable doubt.

The defendant was observed by a salesperson, Lucille Jensen, in the men’s department of the Carson Pirie Scott store in Kankakee, Illinois, on the afternoon of March 2, 1982. He told Jensen he wanted to buy a gift. The defendant selected a manicure set and a knife, the approximate value of which was $25. He put the items in his pocket and told Jensen he also wanted to look at some shirts. They walked toward the shirts but the defendant did not stop. He walked out the door. Jensen notified the store manager and a co-worker. She testified that the defendant acted strange and nervous, and that there “probably” was an odor of intoxicating beverages coming from the defendant.

Debbie Cain, the store manager, also observed the defendant in the men’s department. She did not see him take the items but saw him walk outside. She said he was not walking correctly and thought he might be drank.

Cain told the maintenance man and the department manager to apprehend the defendant. The three people chased him. The defendant threw the items to the ground and escaped. Cain retrieved the items. She also called the police.

The defendant was apprehended by Kankakee police officer Cleveland Thomas about 10 to 15 minutes later. Thomas said the defendant appeared highly intoxicated but was able to respond to questions and to walk.

Following testimony by defense witness, Dr. Erwin Baukus, the defense rested. The jury subsequently returned a verdict of guilty but mentally ill. The defendant was sentenced to a three-year term of imprisonment for retail theft enhanced by a prior theft conviction.

On appeal, the defendant claims he was denied due process of law when he was tried because there was a bona fide doubt of his mental fitness which was not resolved by means of a full adversarial hearing before trial. He asks that his conviction be reversed and the cause remanded for a fitness hearing.

During the defendant’s arraignment on March 18, 1982, the court questioned the defendant and learned that he had been released from a mental health facility two days before the offense. The court stated that the sheriff was to take some steps to have the defendant examined to determine if he should be recommitted.

The defendant filed a motion for the appointment of expert on April 2, 1982. The motion stated that there was a bona fide doubt as to the defendant’s fitness to stand trial.

The defendant next appeared in court on April 19, 1982. During that hearing, the trial court stated that it received a letter concerning the defendant’s fitness to stand trial. The court said that it was “the considered opinion of the psychiatric community that Richard’s all right.” Then, the following exchange between the court and the defense counsel occurred:

“THE COURT: No. They took Richard to mental health people because that’s where he had been dealing with and the person over there wrote a letter and said Richard was fit to stand trial. If you are not happy with that, we’ll have Dr. Baukus look at him.
MR. BARON: That’s right. I am not happy with that.
THE COURT: I raised the question on my own.”

The court noted the defendant’s motion for appointment of expert. Dr. Erwin Baukus, a registered clinical psychologist, was appointed to examine the defendant for fitness to stand trial and insanity.

On May 18, 1982, the defendant’s case was called for trial. The defense attorney informed the court that he had not received a written report from Dr. Baukus. The State’s Attorney, William Herzog, then asked:

“What issue is this? Fitness or insanity?
MR. BARON: Both.
THE COURT: Both.
MR. HERZOG: Has the bona fide doubt been raised?
THE COURT: I guess I did. Didn’t I raise it? Yeah. I raised it initially.
MR. BARON: I think you did, Judge.
THE COURT: There is a bona fide doubt. It has been raised. It is an issue that Dr. Baukus is suppose to give us a report.”

The case was then continued in order to await Dr. Baukus’ report.

A written report was filed by Dr. Baukus. The doctor diagnosed the defendant as suffering from mixed organic brain syndrome. The defendant had an alcohol dependency and some dependence on a combination of drugs. He also had a diminished intellectual level of functioning. However, Dr. Baukus found the defendant fit to stand trial and that the defendant was not insane at the time he allegedly committed the instant offense.

The defense attorney withdrew a petition to allow election to submit to treatment as an addict on July 14, 1982. The withdrawal was allowed.

The trial commenced on August 11, 1982. The trial court could not find a knowing and intelligent waiver of the right to a jury trial so a jury was sworn. The State presented its evidence and at the close of its case, the defense counsel moved for a mistrial because the defendant was not cooperating with him. In response to this motion, the court asked Dr. Baukus, who was in the courtroom, to come forward.

Dr. Baukus had observed the defendant while he was in the courtroom. The court asked Baukus if this observation made a difference in the earlier report on the defendant’s mental condition. Dr. Baukus told the court that the defendant’s behavior in the courtroom was similar to his behavior during the first three examinations the doctor conducted on the defendant. During the three examinations, the defendant was not interacting with the doctor. However, in the fourth examination, the defendant said he decided to cooperate and then interacted and talked to the doctor. It was Dr. Baukus’ opinion that the defendant was malingering in a creative way, both during the three interviews and in the courtroom. The court then denied the motion for a mistrial.

The defendant then called Dr. Baukus as an expert witness. He testified that although he believed the defendant suffered from mixed organic brain syndrome at the time of the offense, the defendant was able to appreciate the criminality of an act and able to conform his behavior to the requirements of law.

On cross-examination, Dr. Baukus stated the defendant was sane at the time of the offense and at the time of trial. He said the defendant “malingered” in the first three examinations by the doctor. The doctor said that the defendant was actively faking craziness during the first three interviews.

A defendant is unfit to stand trial, if because of a mental or physical condition, he is unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104—10.) Whether a defendant is fit may be raised by the defense, the State or the court before a plea is entered or before, during, or after trial. When a bona fide doubt is raised, the court shall order a determination of the issue before proceeding. Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).

A trial court has discretion in determining whether a bona fide doubt as to the defendant’s fitness has been raised. (People v. Barnard (1981), 95 Ill. App. 3d 1132, 420 N.E.2d 1076.) While the trial court in the instant case stated that there was a bona fide doubt regarding the defendant, the issue was resolved prior to the trial. A court-appointed psychologist found the defendant fit to stand trial, as well as being sane at the time of the offense. According to the psychologist, the defendant was able to understand the nature and purpose of the proceedings against him. He was also able to cooperate with his counsel to assist in his defense. Based on this information, the trial court did not abuse its discretion in failing to order a fitness hearing. No bona fide doubt existed.

The defense attorney, aware of the mental examination report on the defendant and having personal observation of the defendant, did not request a fitness hearing. Nor did the State’s Attorney request a fitness hearing. Since there no longer was a bona fide doubt, the trial court did not abuse its discretion by failing sua sponte to order a hearing. People v. Barnard (1981), 95 Ill. App. 3d 1132, 420 N.E.2d 1076.

The fact that the defense counsel moved for a mistrial because the defendant was not cooperating with him is not sufficient to raise a bona fide doubt. (People v. Jackson (1980), 91 Ill. App. 3d 595, 414 N.E.2d 1175.) The trial court consulted the psychologist who examined the defendant for fitness after the motion was made. The doctor said the defendant was malingering. After observing the defendant throughout the trial and listening to the doctor’s opinion, the court denied the motion. No bona fide doubt of fitness was raised at this point.

The second issue the defendant raised is that his sentence is excessive. Sentencing is within the discretion of the trial court and will not be overruled absent an abuse of that discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Based on the criminal history of the defendant, the need to protect the public, and the medical report that the defendant would benefit from institutionalization to prevent drug abuse, the sentence of three years of imprisonment was proper. There was no abuse of discretion.

Judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    ILLINOIS NATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. ROBERT PALMER et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—829
    Opinion filed July 28, 1983.

      William J. Harte, Ltd., and Richman & Evins, Ltd., both of Chicago (William J. Harte, of counsel), for appellants.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The sole issue in this case is whether before an insured can recover under the hit-and-run provision of the uninsured motorist cover-' age provided an automobile liability policies he or his vehicle must be struck by the whole hit-and-run vehicle rather than by an integral part of that vehicle. The trial court found no coverage where the insured’s vehicle was struck by a lug nut flying off of the hit-and-run vehicle. We reverse and remand for further proceedings.

Plaintiff, Illinois National Insurance Company, filed the instant case for a declaration that it owed no liability for injuries occurring to its insured when an object was propelled by an unidentified motor vehicle through the windshield of the insured vehicle. In their answer, defendants stated that the object was propelled from off the unidentified motor vehicle. Since the trial court granted judgment on the pleadings, we will accept defendants’ version of the accident although, as will appear obvious from subsequent discussion, the cases permit recovery under either version of events.

It is well established in Illinois that an insured cannot recover under the hit-and-run provision of the uninsured motorist coverage unless there is “ '*** a physical contact of the unidentified motor vehicle with the insured or an automobile occupied by the insured.’ ” (Ferega v. State Farm Mutual Automobile Insurance Co. (1974); 58 Ill. 2d 109, 111, 317 N.E.2d 550, 552.) Thus, under Illinois law there can be no recovery when an unidentified vehicle forces the insured off the road but makes no contact of any kind with the insured or his vehicle. (Ferega.) Here there is no dispute that some physical contact occurred. The only question is whether, in the absence of language in the statute or policy so requiring, this court will read in a requirement that the contact be a direct contact by the whole unidentified vehicle. Other courts have refused to do so and so do we.

The purpose of the requirement of contact, either in a statute or policy, is to reduce the potential for fraud in that otherwise an insured might simply lose control of his automobile and blame it on a nonexistent driver. (Adams v. Zajac (1981), 110 Mich. App. 522, 313 N.W.2d 347; Allied Fidelity Insurance Co. v. Lamb (Ind. App. 1977), 361 N.E.2d 174; State Farm Mutual Automobile Insurance Co. v. Spinola (5th Cir. 1967), 374 F.2d 873; 8C Appleman, Insurance Law & Practice sec. 5095 (1981).) Conversely, it is well established that where there is a direct causal connection between the hit-and-run vehicle and the plaintiff’s vehicle, which connection carries through to the plaintiff’s vehicle by a continuous and contemporaneously transmitted force from the hit-and-run vehicle, recovery is allowed. (Kersten v. Detroit Automobile Inter-Insurance Exchange (1978), 82 Mich. App. 459, 267 N.W.2d 425, appeal denied (1978), 403 Mich. 845.) Thus where the unidentified vehicle strikes one vehicle which in turn strikes the insured’s vehicle, coverage is found. (State Farm Mutual Automobile Insurance Co. v. Spinola (5th Cir. 1967), 374 F.2d 873; Inter-Insurance Exchange of Auto Club v. Lopez (1965), 238 Cal. App. 2d 441, 47 Cal. Rptr. 834; Springer v. Government Employees Insurance Co. (La. App. 1975), 311 So. 2d 36, writ denied (La. 1975), 313 So. 2d 598; Lord v. Auto-Owners Insurance Co. (1970), 22 Mich. App. 669, 177 N.W.2d 653; Spaulding v. State Farm Mutual Insurance Co. (1974), 262 S.C. 95, 202 S.E.2d 653; Latham v. Mountain States Mutual Casualty Co. (Tex. Civ. App. 1972), 482 S.W.2d 655, error refused n.r.e.; Johnson v. State Farm Mutual Automobile Insurance Co. (1967), 20 Wash. 2d 587, 424 P.2d 648.) As the court in Lord remarked at 22 Mich. App. 669, 672, 177 N.W.2d 653, 655:

“It is clear that ever since the time of Sir Isaac Newton man has recognized and lived by certain physical laws of impact and motion. Accordingly, we hold *** that an insured party is covered where the impact of the hit-and-run car was transmitted to his car through an intermediate car. We find, as did Sir Isaac, that this acceptance of a fundamental property of natural phenomena is the more sensible and consistent view as regards transfer of impact through intermediate objects.”

Likewise, it has been held that where the unidentified vehicle strikes an object in the road propelling it through the air and causing it to strike plaintiff or plaintiff’s vehicle, coverage is found. (Allied Fidelity Insurance Co. v. Lamb (Ind. App. 1977), 361 N.E.2d 174; Barfield v. Insurance Company of North America (1968), 59 Tenn. App. 631, 443 S.W.2d 482; Gavin v. Motor Vehicle Accident Indemnification Corp. (1968), 57 Misc. 2d 335, 292 N.Y.S.2d 745.) Since following these cases, if the object which hit the insured’s windshield had been a rock kicked up by a tire of the unidentified truck coverage would exist, it would be illogical to deny coverage when the object propelled by the truck was part of the truck itself. After all, as pointed out in Adams v. Zajac (1981), 110 Mich. App. 522, 528, 313 N.W.2d 347, 349:

“*** <phygica] contact’ takes place when a vehicle or an integral part of it comes into physical contact with another vehicle. Whether the part is still attached or comes to rest after being detached from the vehicle makes little difference in principle, although in the latter case it might present some difficulties, as are present here, in carrying the burden of proof. In the final analysis, in every accident it is always a part of the vehicle which comes in contact with another vehicle, never the whole vehicle.”

We are aware that in three cases coverage was denied where the insured vehicle collided with a tire or tire assembly. (Government Employees Insurance Co. v. Goldschlager (1974), 44 App. Div. 2d 715, 355 N.Y.S.2d 9; Kersten v. Detroit Automobile Inter-Insurance Exchange (1978), 82 Mich. App. 459, 267 N.W.2d 425, appeal denied (1978), 403 Mich. 845; Blankenbaker v. Great Central Insurance Co. (1972), 151 Ind. App. 693, 281 N.E.2d 496.) Goldschlager is the only case which apparently involved a tire bounding off of another vehicle. In that case there was no true majority opinion. The court simply ruled there was no coverage on the basis of Smith v. Great American Insurance Co. (1971), 29 N.Y.2d 116, 324 N.Y.S.2d 15, 272 N.E.2d 528, which had held that there was no contact where ice and snow became dislodged from one vehicle hitting another. (Goldschlager has been criticized in 8C Appleman, Insurance Law & Practice sec. 5095.45, at 428 (1981), which pointed out that a bounding wheel just off a vehicle later found abandoned near the scene of the accident is clearly an integral part of a hit-and-run vehicle.) In both Kersten and Blankenbaker the insured vehicle struck a tire assembly lying in the roadway. The courts denied recovery in those cases holding that there was insufficient connection with any unidentified vehicle; at best it could only be inferred that the tire was dropped from a vehicle. Blankenbaker was limited by its facts. (Allied Fidelity Insurance Co. v. Lamb (Ind. App. 1977), 361 N.E.2d 174.) Lamb expressly held that, contrary to Blankenbaker, there need not be a direct physical touching between the hit-and-run automobile and the insured automobile in all instances before the physical contact condition is satisfied. Kersten was disapproved of in Adams v. Zajac (1981), 110 Mich. App. 522, 313 N.W.2d 347, which held under similar factual circumstances that the indirect physical contact satisfied the requirement of the statute.

Curtis v. Birch (1983), 114 Ill. App. 3d 127, 448 N.E.2d 591, relied on by the insurer is not in point. In Curtis, the insured was shot by the driver of an uninsured motor vehicle. The court found no causal connection between the automobile and the injury. As the court pointed out, the assailant could have carried out his intentions from a bicycle or on foot and the fact he was in a car was merely incidental. Indeed, while the court did refer to the necessity of contact in a hit- and-run situation, the reference was purely dictum. Since the driver was known, the insured, had the" accident arisen out of the use of an automobile, could have recovered simply by proving the driver was uninsured. It is only necessary to establish contact when the driver is unknown, thus rendering it impossible to prove that the driver was uninsured. Ward v. Allstate Insurance Co. (Mo. 1974), 514 S.W.2d 576; 8C Appleman, Insurance Law & Practice sec. 5095.65 (1981).

It follows from the foregoing discussion that the trial court erred in ruling that there could be, assuming the facts are as alleged, no coverage under the insurer’s policy. Accordingly, we reverse and remand the cause for further proceedings, including arbitration if not waived by the parties.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.

      On rehearing, the trial court accepted an affidavit from defendants in which they stated it was a lug bolt which flew off the back tire after it hit a bump and flew through the windshield of defendants’ car.


author: JUSTICE GOLDBERG

text:
    VIRGINIA LYONS et al., Plaintiffs-Appellants and Cross-Appellees, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees and Cross-Appellants.
    First District (1st Division)
    No. 82—0961
    Opinion filed August 8, 1983.

      Legal Assistance Foundation of Chicago, of Chicago (John M. Bouman, Debora A. Taylor, and Les Jin, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Paul J. Bargiel, Special Assistant Attorney General, of Doss, Puchalski, Keenan & Bargiel, Ltd., of counsel), for appellées.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Virginia Lyons and Annie Richardson (plaintiffs) filed separate applications with the Illinois Department of Revenue and its director (defendants), for property tax relief grants for the year 1978 under the Senior Citizens and Disabled Persons Property Tax Relief Act (Tax Relief Act). (Ill. Rev. Stat. 1977, ch. 67½, par. 401 et seq.) Plaintiffs’ applications were denied.

Plaintiffs sought review within the Department “on behalf of themselves and all others in the same situation.” The Department upheld the denial of plaintiffs’ applications. The final administrative decision concluded: “Therefore, we deny your appeal on behalf of the subject claimants and all others in the same position.”

Plaintiffs sought judicial review in the circuit court. Plaintiffs characterized the proceedings as “a class action *** to review defendants’ final administrative decision which denied to plaintiffs and members of the plaintiff class grants for the year 1978 under the [Tax Relief Act].” The trial court granted defendants’ motion to strike all class aspects of plaintiffs’ complaint. However, the tax division of the trial court reversed the. administrative determination and held that the named plaintiffs were entitled to grants under the Tax Relief Act. Plaintiffs appealed from the refusal of the trial court to define and certify a class as described in plaintiffs’ complaint. Defendants have cross-appealed from the judicial reversal of the administrative ruling denying tax relief to the named plaintiffs.

I

During 1978, plaintiffs each received approximately $20 monthly from the Illinois Department of Public Aid. The grants were State Supplemental Payments (SSP) pursuant to article III (Aid to the Aged, Blind or Disabled) of the Illinois Public Aid Code. Ill. Rev. Stat. 1977, ch. 23, par. 3—1 et seq.

Article III of the Illinois Public Aid Code provides in part: “The eligibility of any applicant for or recipient of public aid under this Article is not affected by the payment of any grant under the ‘Senior Citizens and Disabled Persons Property Tax Relief Act.’ ” Ill. Rev. Stat. 1977, ch. 23, par. 3—1.2.

Article III of the Illinois Public Aid Code also provides (Ill. Rev. Stat. 1977, ch. 23, par. 3—5): “*** the amount and nature of any financial aid is not affected by the payment of any grant under the ‘Senior Citizens and Disabled Persons Property Tax Relief Act.’ ”

During 1978, the year here involved, the Tax Relief Act provided (Ill. Rev. Stat. 1977, ch. 67½, par. 404(c)):

“Public aid recipients. If household income in one or more months during a year includes cash assistance from the Department of Public Aid which was determined under regulations of that Department on a measure of need that included an allowance for actual rent or property taxes paid by the recipient of that assistance, the amount of grant to which that household is entitled, exclusive of any amount to which it is entitled under the provisions of subsection (f) of this Section, shall be the product of (1) the maximum amount computed as specified in subsection (b) of this Section and (2) the ratio of the number of months in which household income did not include such cash assistance to the number twelve. If household income did not include such cash assistance for any months during the year, the amount of the grant to which the household is entitled shall be the maximum amount computed as specified in subsection (b) of this Section. For purposes of this paragraph (c), ‘cash assistance’ does not include any amount received under the federal Supplemental Security Income (SSI) program.”

The Tax Relief Act as above set forth has been amended. Presently, the Act provides that grants or cash assistance thereunder are affected only by the receipt of public aid grants “in excess of $55 per month.” (Ill. Rev. Stat. 1981, ch. 67½, par. 404(c).) However, this amendment, not effective until 1981, is not pertinent to the instant case. We find no provision making this amendment retroactive. Consequently the amended statute may not be retroactively applied. Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 18, 426 N.E.2d 824.

Plaintiffs urge that the policy of defendants in administering the Tax Relief Act directly contradicts the plain language of the Act. Plaintiffs quote the legislative purpose as set forth in the Tax Relief Act as being “*** to provide incentives to the senior citizens and disabled persons of the State to acquire and retain private housing of their choice ***.” (Ill. Rev. Stat. 1977, ch. 67½, par. 402.) Plaintiffs also urge that therefore the statute should be liberally construed to effectuate its purposes. These arguments are undoubtedly true and valid as a general matter. However, it is our task to examine and to evaluate the pertinent statutory framework so that we may determine the validity of plaintiffs’ contentions as applied to the instant case.

After most careful study of the pertinent statutes, we find no ambiguity in either one. As the Tax Relief Act was originally drafted as applicable to the plaintiffs, in the present controversy, it states simply and clearly that where the income of plaintiffs includes cash assistance from the Department of Public Aid (referring to Ill. Rev. Stat. 1977, ch. 23, as above quoted), the amount of the grant to which the household is entitled is directly affected. This portion of the pertinent statute is not ambiguous. It is clear and. definite. If the household income includes assistance, certain consequences follow directly.

In this situation we must apply the established principle that the language of the statute itself is of the utmost importance and “affords the best means of its exposition.” In order to attain this end, “words employed in the statute should be given their plain and ordinary or commonly accepted meaning, unless to do so would defeat the legislative intent.” Illinois Telephone Association v. Illinois Commerce Com. (1977), 67 Ill. 2d 15, 20, 364 N.E.2d 63, and cases there cited.

Stated in a slightly different manner, it is a basic rule, which must necessarily be applied in this case, that “in the absence of statutory definitions indicating a different legislative intention, the courts will assume that words have their ordinary and popularly understood meanings.” (People v. Dednam (1973), 55 Ill. 2d 565, 568, 304 N.E.2d 627, and cases there cited.) We are therefore necessarily bound to conclude that this statute is directly contrary to plaintiffs’ interpretation. Since plaintiffs did receive some monthly cash assistance from the Department of Public Aid for 1978, the right of plaintiffs to benefits under the Tax Relief Act is directly affected.

The two amendments to article III of the Illinois Public Aid Code (Ill. Rev. Stat. 1977. ch. 23, pars. 3—1.2, 3—5) do not alter this conelusion. These amendments patently deal with the converse of the situation at bar. They provide simply that assistance under article III is not affected by any grant under the Tax Relief Act.

Reading the Tax Relief Act and the amendment, not effective in 1981, it seems to us that the amendment is an amelioration of the statute. It provides that in order to be precluded from receiving a grant under the Tax Relief Act, the cash assistance from the Department of Public Aid must be “in excess of $55 per month.” However, as shown, as a matter of law, we are unable to conclude that this amendment is retroactive so as to be applicable in the present controversy.

II

Defendants next urge that the Tax Relief Act, if construed as above, is contrary to the equal protection requirements of Federal law (U.S. Const., amend. XIV) and the State of Illinois (Ill. Const. 1970, art. I, sec. 2). A brief analysis will show these theories inapplicable here.

As regards the Federal requirements, the present doctrine of equal protection of the laws requires that legislative classifications must have some substantial relation to an important State interest in order to pass constitutional scrutiny. This is well set forth in Fullilove v. Klutznick (1980), 448 U.S. 448, 65 L. Ed. 2d 902, 100 S. Ct. 2758. There, racial and ethnic standards were held acceptable as a condition to a Federal grant for voluntary affirmative action programs.

The requirements of the Illinois Constitution are admirably set out in Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 414 N.E.2d 458. There the supreme court made a clear distinction between equal protection and special legislation. The opinion summarizes the duty of the courts in either respect “to decide whether the classification is unreasonable in that it preferentially and arbitrarily includes a class (special legislation) to the exclusion of all others, or improperly denies a benefit to a class (equal protection).” 83 Ill. 2d 130,138.

In view of the fact that the statute before us is the Tax Relief Act as it existed in 1977, prior to the 1981 amendment, we find that the Act is uniformly applicable to all persons without favor or distinction regardless of the amount of monthly stipend which they may have received under the provisions of the statute.

Furthermore, the classification, as between public aid recipients and non-public-aid recipients, is rationally related to a legitimate governmental interest. Through the exclusion in the Act, as enacted in 1977, the legislature simply prohibited recipients from receiving similar benefits from separate sources. Plaintiffs argue the provision is irrational because in their case acceptance of article III aid, to the exclusion of tax relief grants, actually made them poorer. However, it is clear that under our interpretation of the statutes plaintiffs could elect which benefits to accept. It therefore follows that the statute presents no viable issue of equal protection of the law under Illinois or Federal standards.

On the cross-appeal of defendants, we therefore reverse the judgment of March 23, 1982, which allowed plaintiffs relief under the Tax Relief Act, and remand the cause with directions to enter an order denying the rélief.

Ill

As regards creation of a class suit, plaintiffs urge that defendants’ denial of plaintiffs' claim as it pertained to “all Others in the same situation” effectively established a plaintiff class. In the alternative, plaintiffs argue the trial court should have certified a plaintiff class regardless of the administrative denial.

“The law is well established that an administrative agency has no inherent or common law powers, but is empowered to act only according to authority properly conferred upon the agency by law.” (Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 347, 365 N.E.2d 667, appeal denied (1977), 66 Ill. 2d 631, citing Fahey v. Cook County Police Department Merit Board (1974), 21 Ill. App. 3d 579, 582, 315 N.E.2d 573. See also Oak Liquors, Inc. v. Zagel (1980), 90 Ill. App. 3d 379, 380-81, 413 N.E.2d 56.) The “authority of an agency to act need not be express, but may be implied from the terms of the enabling provision of law.” Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 347.

In the case at bar, we find neither express nor implied delegation of authority to defendants to certify a plaintiff class. The section regarding the administration of the Tax Relief Act specifies (Ill. Rev. Stat. 1977, ch. 67½, par. 406(a)): “Upon receipt of a timely filed claim, the Department [of Revenue] shall determine whether the claimant is a person entitled to a grant under this Act and the amount of grant to which he is entitled under this Act.” The language quoted above suggests that the defendants, as administrative officials, can only determine the substantive rights of “a person” who has filed a “timely claim.” Therefore, there is no implied authority for the defendants to create and adjudicate the rights of an alleged plaintiff class comprised of persons who have not filed timely claims.

In addition the class action statute (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)) provides: “An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds ***.” According to the practice notes accompanying the statute, “While the language refers to ‘any court’ it is obviously intended to refer to trial courts of general jurisdiction. There is no intention — and there would be no power to confer jurisdiction by this amendment on an appellate court.” Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes, at 145 (Smith-Hurd Supp. 1983-84).

In Williams v. Department of Labor (1979), 76 Ill. 2d 72, 389 N.E.2d 1177, the supreme court considered the authority of the Department as an administrative agency to limit the fee charged by the attorney for the claimant. The court held “that the right to review such administrative decisions is limited to parties of record before the administrative agency whose rights, duties or privileges were adversely affected by the decision.” (76 Ill. 2d 72, 78.) The court therefore held that the attorney as a claimant lacked standing to seek administrative review of the Board’s decision.

We conclude defendants had no legal authority to certify a plaintiff class in the administrative proceedings.

We also find unpersuasive plaintiffs’ argument that the trial court should have certified a class in connection with its review of defendants’ ruling. The Illinois Constitution provides for judicial review of administrative decisions “as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.) The Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 265) provides: “Unless review is sought of an administrative decision within the time and in the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decisions.”

In Stirniman v. County Board of School Trustees (1960), 26 Ill. App. 2d 245, 250-51, 167 N.E.2d 829, the court described the Administrative Review Act as allowing an appeal of administrative decisions only by a:

“ ‘party of record to the proceeding’ at which the administrative hearing took place. He must be a party of record either in person or by counsel. *** the requirement that this appearance must be of record is reasonably necessary when it is considered that judicial review under the Administrative Review Act is a review of the record and findings by the agency and not a de novo review.”

Plaintiffs cite and depend upon Caterpillar Tractor Co. v. Lenchos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167. That case was affirmed by the Supreme Court of Illinois in 1981. (84 Ill. 2d 102, 417 N.E.2d 1343 (U.S. appeal pending).) The case deals with the provision of the Civil Practice Act providing for intervention by interested parties. (Ill. Rev. Stat. 1979, ch. 110, par. 26.1.) We see no materiality in Caterpillar. The litigation there was extremely complicated. The case holds parties may be permitted to intervene where the intervenor has a greater interest than the general public and stands “to gain or lose by the direct legal operation and effect of a judgment in the suit.” 84 Ill. 2d 102, 112.

Intervention is a totally different concept and remedy from a class action. In the case at bar, there is no attempt by any interested parties to intervene either in the administrative proceedings or during the judicial review thereof. We therefore find this authority not applicable here.

Plaintiffs also cite People ex rel. Thompson v. Property Tax Appeal Board (1974), 22 Ill. App. 3d 316, 317 N.E.2d 121, appeal denied (1975), 57 Ill. 2d 610, appeal dismissed (1975), 422 U.S. 1002, 45 L. Ed. 2d 666, 95 S. Ct. 2623. There, this court affirmed the refusal of the trial court to maintain a class action upon judicial administrative review. We stated (22 Ill. App. 3d 316, 319): “Plaintiff improperly seeks to make a class action out of her complaint for administrative review. It is fundamental that the right to administrative review is limited to the parties in the original administrative proceeding.”

In Thompson the court stated “plaintiff’s complaint *** wholly fails to meet the test commonly applied in determining the propriety of a class action ***.” (22 Ill. App. 3d 316, 320.) However, the opinion clearly shows that the fact the plaintiff class was not a “party of record” to the administrative hearing was a sufficient basis to sustain the dismissal of the class action.

We find the trial court acted properly in dismissing the class action aspects of plaintiffs’ complaint. On the appeal of plaintiffs this order is affirmed.

Judgments affirmed in part and reversed in part and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    FREDERICK G. ACKER et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (5th Division)
    No. 81—2001
    Opinion filed August 5, 1983.

      David J. Hardy, Crane C. Hauser, and Calvin Sawyier, all of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Paul J. Bargiel, of Doss, Puehalski, Keenan, Bargiel and Dicks, Ltd., and Fred H. Montgomery, Special Assistant Attorneys General, of counsel), for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an appeal by the partners of the Chicago law firm of Winston, Strawn, Smith and Patterson (Winston, Strawn) a law partnership, from an order of the circuit court of Cook County which affirmed the Department of Revenue’s denial of plaintiffs’ claim for a refund of certain State income taxes.

Winston, Strawn files its tax returns using a fiscal year basis ending January 31. On its Illinois partnership return for fiscal year February 1, 1969, to January 31, 1970, Winston, Strawn reported net income in the amount of $3,061,284.04. Of this total, $2,095,480.76 was reported as net income from February 1, 1969, to July 31, 1969, and was distributed to plaintiffs on or before July 31, 1969. The balance of $965,803.28 was reported as net income for the period from August 1, 1969, to January 31, 1970. Winston, Strawn claimed a subtraction modification for its February to July income and explained that the money “*** [was] excluded from Illinois modified partnership ordinary income pursuant to [the] specific election hereby claimed under section 2 — 202(b)(2) of the Illinois Income Tax Act ***.” Section 2— 202(b)(2) provides that:

“If the taxpayer so elects, in the case of a taxable year beginning before August 1, 1969 and ending after July 31, 1969, there shall be taken into account in computing base income only those items earned, received, paid, incurred or accrued after July 31, 1969 ***. The election provided by this paragraph shall be made in such manner and at such time as the Department may by forms or regulations prescribe ***.” Ill. Rev. Stat. 1981, ch. 120, par. 2—202(b)(2).

Plaintiffs report their Federal as well as State income on a calendar year basis which ends December 31. Each partner reported on his Illinois return his distributive share of the firm’s net income for the entire fiscal year from February 1, 1969, to January 31, 1970. Each also claimed a subtraction modification equal to his share of the firm’s income modification of $2,095,480.76. The effect of the subtraction modification was to exclude all of the income that a partner earned between February 1 and July 31, 1969. Thus, in reporting their Illinois income for the 1969 fiscal year, Winston, Strawn as well as each partner excluded income received between February 1, 1969, and July 31,1969.

The Department of Revenue disallowed the deduction and assessed each partner a tax deficiency. It ruled that section 2—202(b)(2) does not'apply to the 1970 tax year; (2) a law firm is not a taxpayer under the Illinois Income Tax Act; and (3) Administrative Regulation section 2—202—2(e)(1) is constitutional. Section 2 — 202—2(e)(1) provides that:

“Partnerships are not subject to the Illinois income tax and are not taxpayers within the meaning of the Act. [See Section 205(b) and 1501(a)(23).] Accordingly, Section 202(b)[2], which provides taxpayers with alternative methods of computing net income for taxable years which begin before and include August 1, 1969, is not applicable to partnerships.” Administrative Regulation sec. 2 — 202—2(e)(1).

The department’s ruling was affirmed by the circuit court. This appeal followed. The issues presented for review are: (1) whether Administrative Regulation section 2 — 202—2(e)(1) is valid; (2) whether a partnership can exercise the income tax election as stated in section 2 — 202(b)(2); and (3) whether, pursuant to section 2 — 202(b)(2), an individual partner can elect to exclude his distributive share of partnership income earned before August 1, 1969. For the reasons that follow, we affirm.

Opinion

Plaintiffs contend that Administrative Regulation 2 — 202—2(e)(1) is unreasonable because it denies a partnership the same rights as an individual taxpayer yet the partnership must compute base income (for reporting purposes) as though it were an individual. Plaintiffs assert that a partnership should therefore have the same right as an individual to make an exclusion of its pre-August 1 income. Section 2— 202 — 2(e)(1) specifically refers to section 2 — 205(b) of the Income Tax Act, which in 1969 provided that:

“A partnership as such shall not be subject to the tax imposed by this Act, but shall compute base income as it if were an individual, and shall file such returns and other information at such time and in such manner as may be required ***.” Ill. Rev. Stat. 1969, ch. 120, par. 2-205(b).

We find plaintiffs’ reasoning unpersuasive. A partnership is not a taxpayer. A partnership serves as an entity for the purpose of calculating and filing informational returns and as a conduit through which the taxpaying obligation passes to the individual partners. The fact that a partnership computes base income as if it were an individual cannot, therefore, be construed to mean that it should have the correlative rights of an individual (nonpartner) taxpayer. To treat a partnership in this manner would be in contravention of the Income Tax Act which carefully provides for the allocation of partnership business and nonbusiness income (Ill. Rev. Stat. 1981, ch. 120, pars. 3—305(a), (b)), and it would be contrary to Illinois case law which recognizes a partnership as a contractual relationship of mutual agency which is formed to carry on a business purpose of a particular kind. (Ramacciotti v. Simpkins (1970), 130 Ill. App. 2d 733, 266 N.E.2d 700; Urban v. Brady (1967), 86 Ill. App. 2d 158, 230 N.E.2d 65.) Similar language portraying this issue is found in United States v. Basye (1973), 410 U.S. 441, 35 L. Ed. 2d 412, 93 S. Ct. 1080, where the Supreme Court held that “the partnership is regarded as an independently recognizable entity apart from the aggregate of its partners. Once its income is ascertained and reported, its existence may be disregarded since each partner must pay a tax on a portion of the total income as if the partnership were merely an agent or conduit through which the income passed.” (410 U.S. 441, 448, 35 L. Ed. 2d 412, 419, 93 S. Ct. 1080, 1085.) Additionally, we note that an administrative regulation enjoys a presumption of validity. (People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354, 358, 201 N.E.2d 390.) When promulgated pursuant to legislative authority, rules and regulations of administrative agencies have the force and effect of statutes (Du-Mont Ventilating Co. v. Department of Revenue (1977), 52 Ill. App. 3d 59, 367 N.E.2d 532) and should be set aside only when clearly arbitrary, capricious or unreasonable. Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 959-60, 364 N.E.2d 631.

In our opinion, for the reasons previously set forth, plaintiffs failed to sustain their burden of showing that section 2 — 202—2(e)(1) is unreasonable or arbitrary. We therefore hold that the regulation is valid and that it does not entitle a partnership to the same rights and privileges as an individual taxpayer. Because of the conclusion reached on this issue, we need not consider plaintiffs’ argument regarding the retroactive effect of section 202(b)(2) on Winston, Strawn.

Plaintiffs further assert that section 2 — 202—2(e)(1) is unconstitutional because it affords diverse treatment to individuals receiving income from proprietorships, estates, trusts and other sources and those receiving income from partnerships. We disagree. In Thorpe v. Mahin (1969), 43 Ill. 2d 36, 250 N.E.2d 633, the Illinois Supreme Court rejected the taxpayers’ contention that the Income Tax Act unconstitutionally creates multiple classes of taxpayers (corporations, individuals, trusts and estates) and discriminates among them. In reaching its decision, the court pointed out that its earlier decisions had affirmatively acknowledged the broad power of the State legislature to create various classifications, particularly in the field of taxation. The reasons justifying the classification need not appear on the face of the statute. The classification must be upheld, therefore, if any state of facts reasonably can be conceived that would sustain it. Thus, in order to prevail on an allegation that a statute is unconstitutional, petitioner has the burden of showing that the classification is unreasonable and that the legislature has violated the constitution. (43 Ill. 2d 36, 45.) We note that these rules of statutory construction were affirmed by the supreme court in Continental Illinois National Bank & Trust Co. v. Zagel (1979), 78 Ill. 2d 387, 401 N.E.2d 491, which held that the presumption favoring the constitutional validity of a State’s scheme of taxation may be overcome only by a clear showing that it is arbitrary and unsupportable by any set of facts. (78 Ill. 2d 387, 409.) In the case at bar, petitioners merely assert that the statute is unreasonable because it constitutes an arbitrary classification, denies uniformity and singles out individuals who derive income from partnerships and treats them differently from other individuals. This allegation, without more, cannot overcome the strong presumption of validity that the statute carries. Moreover, as the trial court properly noted, individuals who receive income from partnerships are treated in the same manner as individuals who receive income from trusts and Subchapter S corporations. In our opinion, therefore, plaintiffs’ allegation is without merit. Accordingly, they have failed to sustain their burden of proof that the challenged classification is unreasonable.

We next consider whether section 202(b)(2) entitles an individual partner to exclude from his taxable income his distributive share of partnership income earned prior to August 1, 1969. Plaintiffs contend that there is a distinction between when income is earned and when it is reportable and that the court’s holding in Stewart v. United States (S.D. N.Y. 1967), 263 F. Supp. 451, refutes the erroneous equation of the two.

Stewart involved the calculation of a partner’s quarterly estimated tax payments on his distributive share of partnership income pursuant to Internal Revenue Code section 6654. The court held that a partner must pay an estimated tax on his share of partnership income regardless of whether he had the right to receive that income when the tax installment was due and further, that a partner cannot escape taxation on partnership earnings accrued at the end of the partnership year even if the earnings were undistributed. (263 F. Supp. 451, 455.) In rejecting the taxpayers’ argument that the requirements of section 706(a) should be read into section 6654, the court reasoned that section 706(a) refers to the taxable income of a partner for a taxable year, while the applicable sections of section 6654 deal with the taxable income of a partner for the months in the year in which the installment is required to be paid. Section 706(a) provides that:

“In computing the taxable income of a partner for a taxable year, the inclusions *** shall be based on the income, gain, loss, deduction, or credit of the partnership for any taxable year of the partnership ending within or with the taxable year of the partner.” I.R.C. sec. 706(a) (1983). (Emphasis added.)

Stewart is clearly distinguishable from the case at bar. There, the partners made quarterly estimated income tax payments on the basis of a reasonable expectation of their share of partnership income. In the instant case, plaintiffs report their share of partnership income once a year, on a calendar basis. That case, therefore, cannot be used to discredit the applicability of section 706(a) to the facts before us. Section 706(a) determines that a partner who reports income on a calendar year basis must report his distributive share of the partnership income in his individual return for his taxable year within or with which the partnership’s taxable year ends. It does not matter when, if ever, the partner actually receives his share of the partnership income for that year (United States v. Basye (1973), 410 U.S. 441, 35 L. Ed. 2d 412, 93 S. Ct. 1080; Bell v. Commissioner of Internal Revenue (5th Cir. 1955), 219 F.2d 442), nor does it matter that the partner and the partnership are not on the same accounting basis (Truman v. United States (N.D. Ill. 1933), 4 F. Supp. 447). The fact that Winston, Strawn distributed income to plaintiffs prior to August 1, 1969, is therefore irrelevant.

Plaintiffs contend further that they should be permitted to take advantage of the income election of section 2 — 202(b)(2) because the legislature did not intend to retroactively tax income earned or realized prior to August 1, 1969. A literal reading of section 2 — 202(b)(2) would, at least initially, appear to support plaintiffs’ argument. That section provides that “*** in the case of a taxable year beginning before August 1, 1969, and ending after July 31, 1969, there shall be taken into account in computing base income only those items earned, received, paid, incurred or accrued after July 31, 1969 ***.” The principle difficulty with plaintiffs’ construction, however, is that it disregards the fact that the legislature intended to follow the concepts of Federal income tax statutes. The official commentary of the Illinois Income Tax Act states:

“The Illinois Income Tax Act is designed to impose a constitutional flat rate tax in respect of income earned or received in or by a resident of the State of Illinois.
* * *
In. the interest of simplicity and understanding, the computation of the tax base begins with certain amounts which are required to be developed and set forth in the preparation of the taxpayer’s federal income tax return, and then goes on to provide for such additions, subtractions, exemptions and allocations as are deemed necessary or appropriate in order to arrive at an amount properly taxable by the State of Illinois.
A tax premised on the Internal Revenue Code concepts will greatly facilitate economical administration of the Act, as well as its comprehension, by providing an instant and highly developed body of law for the characterization of the items to be taken into account in the computation of the tax base, and by providing the State with access to meaningful audit information gathered by the federal government in its review of federal income tax returns. ***
The tax imposed by the Act falls on every individual, corporation, trust and estate deriving income in or from Illinois for each taxable year ending after July 31, 1969. In order to avoid retroactive taxation of income earned or received prior to the August 1, 1969 effective date, provision is made for prorating income for any taxable year which begins before August 1, 1969 but ends on or after such date.” (Emphasis added.) 1 CCH State Tax Reporter, Illinois, at 1901.

The official commentary is persuasive evidence that the legislature intended to follow the Federal scheme in taxing partners and computing a partnership’s base income. A discussion of the rationale and method for doing this is contained in Appeals of Mills (1926), 3 B.T.A. 1245, where the court reasoned that:

“In enacting the provisions of the [statute], Congress gave recognition to the situation where the accounting periods of the partners do not coincide with that of the partnership, and it was necessary to specify the time as of which the partners should account for their distributive shares in the net income of the partnership. ***
*** In recognizing a partnership for accounting purposes, Congress realized that until the close of the partnership’s accounting period it cannot be determined whether or not the partnership has any net income. The earnings of the earlier months may be entirely eliminated by losses sustained in the closing months of the partnership’s accounting period, even to the extent of showing a net loss for the entire accounting period. Under such circumstances, it could not be said that distributions during the first months of the partnership’s accounting period constitute income to the partners when the operations of the entire accounting period show that the partnership sustained a loss. *** [The statute] conveys but one meaning, and that is that a partner must report as income his proportion of the net income of the partnership for its accounting period which Congress has recognized for 12 months ending within his fiscal or calendar year. Under the language of this section it is immaterial when and how the partner’s share of the net income of the partnership is reduced to his possession. ” (Emphasis added.) 3 B.T.A. 1245, 1250-51.

The court’s reasoning in Mills was followed in Girard Trust Co. v. United States (3d Cir. 1950), 182 F.2d 921, where the court stated that:

“[W]e have not overlooked the argument stressed by the government that partners earn income as it comes into the partnership business. That is beside the point. ‘Circumstances wholly fortuitous may determine the year in which income, whenever earned, is taxable.’ [Citations.] Congress has not seen fit to tax partnership income as earned but rather as if each partner’s earningfs] occurred periodically at the end of each taxable year of the partnership.” (Emphasis added.) (182 F.2d 921, 925.)

Our research has failed to disclose any cases that rebut the holdings that are enunciated in either of the foregoing decisions. We therefore find that each plaintiff’s distributive share of partnership income is considered to have been earned at the end of the partnership’s taxable year. Accordingly, an individual partner who reports his income on a calendar year basis is taxable on his share of the net profits of the partnership for the entire fiscal year ending within his calendar year, without regard to the time the income was distributed. Plaintiffs are therefore obligated to pay Illinois State income tax on their distributive share of income for the entire calendar year, including income earned between February 1 and July 31,1969.

Finally, we note that our ruling today is limited to the facts of this case, particularly because plaintiffs are members of an entity (partnership) which is expressly excepted from the exemption found in section 2 — 202(b)(2). Moreover, because section 2 — 202(b)(2) pertains to taxable income for 1969, the passage of time will serve to lessen the likelihood that future actions will be filed pursuant to this statute.

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

      Plaintiffs’ wives are parties in this proceeding solely because they joined with their husbands in the filing of joint returns.

      Although a partnership files a Federal as well as a State return of its income, these returns are merely informational and do not show any amount of tax liability. Instead, the returns set forth taxable income. Each partner reports his distributive share of the partnership’s income, gains, losses, deductions and credits on his individual return and is taxed on the aggregate of his partnership and nonpartnership income. I.R.C. sec. 701 (1983); Ill. Rev. Stat. 1981, ch. 120, par. 2—205(b).

      This amount was the same adjusted gross income that each partner reported on his Federal tax return.

      Section 2 — 205(b) of the 1981 Income Tax Act does not state that a partnership “shall compute base income as it if were an individual.” Rather, it provides that the partnership “shall compute its base income as described in subsection (d) of Section 203 of this Act.” Section 203(d) provides that base income for a partnership is equal to the partners’ taxable income. Ill. Rev. Stat. 1981, ch. 120, pars. 2—205(b), 2—203(d).

      I.R.C. sec. 6654 (1983), “Failure by Individual to Pay Estimated Income Tax.” We discuss the general applicability of the Internal Revenue Code to the Illinois Income Tax Act in the ensuing portion of this opinion.