text:
    THE STREAMS SPORTS CLUB, LTD., Plaintiff-Appellant, v. DONNA RICHMOND et al., Defendants-Appellees.
    Second District
    No. 81—881
    Opinion filed October 5, 1982.

      Cathleen M. Keating and Thomas B. Cassidy, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellant.
    John C. Bartler and Michael F. Dahlen, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Streams Sports Club, Ltd., an Illinois corporation, claimed a lien which it sought to foreclose against the owner of a condominium unit who refused to pay dues to the sports club. The club appeals from a final order dismissing its amended complaint. In the amended complaint count I sought foreclosure pursuant to the Illinois Mortgage and Foreclosure Act; count II sought foreclosure pursuant to article 15 of the condominium declaration; and count III sought recovery based on breach of contract.

Defendant’s motion to dismiss which was granted by the court alleged that neither the Illinois Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 301 et seq. ) nor the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23) provide for the type of lien which plaintiff claims, and thus that count I fails to state a cause of action. The motion alleged that count II fails because an amendment had been passed by the condominium owners making membership in the Sports Club permissive rather than mandatory, and that count III was defective because no contract ever existed between the parties.

The appeal focuses on the validity and applicability of a clause in the declaration of condominium ownership which requires all owners of condominium units in a particular complex to become members of and to pay annual dues to a recreational club, located adjacent to and owned and operated by the developer of the complex, and which imposes a lien on the condominium unit for failure to pay the annual dues. The club is a successor in interest to Shannon, Inc., the developer of a condominium complex known as “The Streams Condominium No. 3,” and owner of the Streams Sports Club. The defendant Donna Richmond is the beneficial owner of a condominium unit located in “The Streams Condominium No. 3.”

I

The type of lien sought is not provided in either the mortgage or the condominium statutes. This does not appear to have been questioned on appeal. In any event the trial court properly dismissed count I of the amended complaint. Plaintiff does not appeal the dismissal of count I, which sought foreclosure of the lien under the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23). The dismissal of this count was proper as the Act does not provide for this type of lien, which involves no conveyance by defendant. See A. S. S. Wrecking Co. v. Guaranty Bank & Trust Co. (1971), 2 Ill. App. 3d 66, 72, rev’d on other grounds (1972), 53 Ill. 2d 249; 27 Ill. L. & Prac. Mortgages sec. 2 (1956).

II

Under count II the club relies on article 15 of the declaration of condominium ownership. This provides generally that the club will be owned by the developer and operated for profit by the developer, its assignees, vendees or designees; the authority to determine what facilities will exist from time to time are reserved to the title holder, owner and operator of the club; each owner of any condominium unit upon acquisition of title becomes a member of the club without any membership or initiation fee and may exercise and enjoy facilities upon compliance with the regulations of the club and upon payment of annual membership fees; in the event that any condominium unit is transferred the right to club membership of the subsequent owner is subject to the payment of a transfer fee and compliance with the regulations of the club. “The breach, violation or default on the part of any Owner or his invitee or guest of any By-Law, rule or regulation then in effect with respect to such Club, or the failure or refusal of any such Owner to pay the annual membership fee or any other charge which he has voluntarily incurred by the use of the Club’s facilities, shall entitle the Owner of said Club, *** to either suspend, *** or terminate the privilege or license *** but not to exceed one year. *** Notwithstanding such suspension the annual membership dues shall continue to accrue and be a charge and lien against the interest of the Unit owned by the Owner. All unpaid charges shall be a lien against said Unit ***. The Club shall have the right, in addition to any other remedy, to enforce its lien by foreclosure, ***.”

The first question raised under this count is whether a successor in interest to a developer may enforce a lien against a condominium unit owner who fails to pay annual recreation dues. Defendant argues that article 15 of the declaration regarding the Sports Club creates personal covenants which may only bind the original grantor and grantee; thus, that the plaintiff as assignee of the original developer could not assert rights which were personal to the developer. In addition, defendant contends that the type of lien sought to be foreclosed is not expressly provided for in the Condominium Property Act, and the contract set forth in article 15 of the condominium declaration is unconscionable and unenforceable since it provides that services and facilities of the club can be continued, altered, changed or terminated at the sole discretion of the club, allows the club to impose fees in an amount it alone deems reasonable and to suspend, limit, curtail or terminate membership without a hearing and provides that fees shall never be decreased even if the club reduces its services or facilities. Defendant also argues that the contract is unenforceable because its terms are vague and uncertain and lack mutuality. Defendant also argues that it is not binding under any theory of promissory estoppel.

While we agree that the Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, pars. 309, 309.1) does not expressly provide for the type of lien asserted here, it is equally true that the Act does not specifically or impliedly exclude the creation of liens which are not expressly provided. A lien may be created by agreement or by statute. (Kunde v. Biddle (1976), 41 Ill. App. 3d 223, 225; Sullivan v. Sudiak (1975), 30 Ill. App. 3d 899, 902.) “[I]f an express contract sufficiently manifests the intention that some particular property or fund is to be security for a debt, then an equitable lien may be imposed upon the property or fund so identified.” (Bankers Trust Co. v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 1014, 1017-18.) Here the fact that the notice of lien makes specific reference to the Condominium Property Act is not of great import in light of the fact that said notice also indicates that it arises pursuant to the condominium declarations

We also conclude that the contract is not unenforceable for unconscionability. A contract is unconscionable when it is improvident, totally one-sided or oppressive. (Walter E. Heller & Co. v. Convales cent Home (1977), 49 Ill. App. 3d 213, 219.) An absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party is unconscionable. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 419.) Although it appears that some of the provisions of article 15 are unduly favorable to the developer, we are at the pleading stage and there is no showing that, as a matter of law there is fraud, mistake or duress or even disparity of bargaining power. In the absence of fraud, mistake or duress, courts are reluctant to strike down contracts since “ ‘[pjeople should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain.’ ” (Neal v. Lacob (1975), 31 Ill. App. 3d 137, 142.) Moreover, article 15 does not create a separate and independent contract, but is a section of a much broader contract which grants rights and liabilities to both parties, with no indication that the condominium contract, as a whole, is unconscionable.

Nor can we agree that the contract lacks mutuality in that only the plaintiff is given the right to terminate its services and the covenants do not specifically delineate the services to be provided. Again the defendant culls out one portion of the declaration. Article 17 provides, however, that the declaration “may be changed, modified or rescinded by an instrument in writing setting forth such change, modification or rescission, signed by Owners having at least three-fourths (s/4ths) of the total vote ***.”

Defendant does not argue that no services are presently being provided nor that the condominium unit owners are not receiving sufficient value for their annual dues. Thus, the failure to specifically identify the services to be provided does not render the contract void for uncertainty. Where terms of an agreement are in any respect doubtful or uncertain, and parties to it have, by their own conduct, placed upon it a construction which is reasonable, such construction will be adopted by the court. (Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 973; Walgreen Co. v. American National Bank, & Trust Co. (1972), 4 Ill. App. 3d 549, 554.) In any event, given the strong presumption that the provisions of a condominium declaration are valid, the question of unconscionability should not be decided on a motion to dismiss. See Point East Management Corp. v. Point East One Condominium Corp. (Fla. 1973), 282 So. 2d 628; Hidden Harbour Estates v. Basso (Fla. App. 1981), 393 So. 2d 637.

We then consider defendant’s contention that, even if the covenant is held to be enforceable generally, it is a personal covenant which may not be enforced by the successor in interest to the original developer. We cannot agree.

The club as the successor to the interest of the original developer is the real party in interest. It has the apparent duty to pay for the occupancy of the recreational land and is plainly the intended beneficiary of the covenant created by article 15 of the condominium declaration. If a contract is entered into for the direct benefit of a third person he may sue for its breach. (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 258-59. See also Vogeler v. Alwyn Improvement Corp. (1928), 247 N.Y. 131, 134-36, 159 N.E. 886, 887.) In Illinois, a party seeking enforcement of a covenant need not own the property to be benefited by enforcement, nor in fact, any property. (VanSant v. Rose (1913), 260 Ill. 401, 407.) This is so because the right to enjoin the breach of a restrictive covenant does not depend on whether the covenantee’s property will be damaged by the breach; it is the right to specific performance of the bargain which the parties have made between themselves. (VanSant v. Rose (1913), 260 Ill. 401, 407-08.) Even where the holder of a benefited land is the one who may enforce a covenant, a successor to the owner’s interests as the real party in interest may likewise enforce a recreational covenant. Bessemer v. Gersten (Fla. 1980), 381 So. 2d 1344, 1348.

Although our conclusion that the club is entitled to enforce its rights as a third-party beneficiary of the contract between the original developer and the condominium owners makes the question of whether the covenant is one which runs with the land redundant, we will briefly discuss the issue. Initially we conclude from the record, contrary to the argument of the defendant, that the question was fairly raised in the trial court. A covenant to pay fees, giving plaintiff a lien on property for unpaid fees, runs with the land. In Mathis v. Mathis (1948), 402 Ill. 60, 66, the supreme court stated that “[w]here land is conveyed in consideration of a covenant by the grantee to support the grantor, or other persons designated, the covenant runs with the land and is binding upon subsequent owners.” The court held that a covenant, in which the grantee in partial consideration for the transfer agreed to pay a third party a certain sum of money and give the third party a lien against the property for unpaid amounts, ran with the land. Other jurisdictions have likewise held that covenants similar to the one before us which exact charges for the upkeep of property other than the owner’s, run with the land. See e.g., Lincoln-shire Civic Association, Inc. v. Beach (1975), 46 App. Div. 2d 596, 364 N.Y.S.2d 248; Bessemer v. Gersten (Fla. 1980), 381 So.2d 1344; Kell v. Bella Vista Village Property Owners Association (1975), 258 Ark. 757, 528 S.W.2d 651; Birchwood Lakes Community Association, Inc. v. Comis (Pa. Super. 1982), 442 A.2d 304; Phillips v. Smith (1949), 240 Iowa 863, 38 N.W.2d 87; Neponsit Property Owners’ Association v. Emigrant Industrial Savings Bank (1938), 278 N.Y. 248, 15 N.E.2d 793.

Count II of the complaint was sufficient to state a cause of action, and it was error for the trial court to dismiss this count on the pleadings.

III

Inasmuch as count III also sought recovery based on breach of contract, the count also stated a cause of action on the basis that the club was a third-party beneficiary entitled to pursue its remedy for enforcement of the covenant. We conclude, therefore, that the court erred in dismissing count III of the complaint.

IV

Defendant also asserted in her motion to dismiss that even if the lien were enforceable when the declaration was originally recorded, a 1978 amendment to the condominium declaration effectively negated the effect of article 15 with respect to defendant. This amendment, recorded prior to defendant’s purchase of her unit, was passed pursuant to article 17 of the declarations and provided for a permissive rather than mandatory membership in the Sports Club.

Plaintiff asserts that article 17 is not part of the contract between the parties and, as such, the purported amendment has no effect. It claims that if article 17 were applied to article 15 then the condominium owners could amend any portion of the parties’ agreement without the consent of the plaintiff. In this view article 17 would lack mutuality and therefore must fall. It seems incongruous that plaintiff should attempt to deny the effect of article 17 as lacking mutuality in order to preserve the provisions of article 15 which, in and of themselves, might also be argued to lack, mutuality when not considered in the text of the whole agreement. There is no basis for culling out article 15, however, and creating a separate and independent contract between the parties. The declarations must be construed as a unified contract. We note that an amendment provision such as the one in the present case was approved by this court in Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 423.

Plaintiff also contends that the 1978 amendment fails to comply with the provisions of article 17. Article 17 provides that the amendment must be signed by three-fourths of the condominium owners, certified by the secretary of the board, and all lienholders of record must have been notified. Plaintiff claims that none of these three requirements have been met.

No evidence was taken to determine whether the amendment was passed by three-fourths of the unit owners. A certification by the secretary of the board would have substantiated this fact, but no certification is attached to the amendment. Also, there is no indication that all lien-holders of record were notified. It would appear that the amendment would be valid and defeat the cause of action under any count if passed in accordance with the requirements. Proof must be adduced on this issue upon remand.

That portion of the dismissal order which refers to count I is affirmed; those portions referring to counts II and III are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part.

NASH and HOPE, JJ., concur.

       The issue of whether the covenant runs with the subject property would be relevant to a determination of whether it can be enforced against subsequent as well as original purchasers. The record is not clear on whether Donna Richmond is an original or subsequent purchaser. However, as defendant has not raised this issue in the motion to dismiss or on appeal and we find that the covenant does run with the land, whether Richmond is an original or subsequent purchaser is here not material.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM KALEC, Defendant-Appellant.
    Third District
    No. 82-74
    Opinion filed September 24, 1982.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, William Kalec, was charged by indictment on November 1, 1978, with the murder of Charles Hegstrom. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1).) Following plea negotiations, the charge was dropped to voluntary manslaughter. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a)(1).) The defendant, represented by counsel, agreed to plead guilty to the lesser charge, and the State agreed to recommend an extended term of imprisonment of 10 years.

The plea agreement was presented to the trial court on August 4, 1980. The court advised the defendant of his rights, the possible consequences of his actions, and ascertained whether the plea was voluntary. The defendant was admonished by the court that an extended term of up to 14 years could be imposed if the court found exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2.

A factual basis for the plea was made by the State. During the evening of October 15, 1978, Charles Hegstrom attempted to have sexual intercourse with Cheryl Conley, who lived with the defendant. There was a confrontation between the defendant and Hegstrom concerning the incident with Conley. The defendant shot Hegstrom with a sawed-off pump shotgun at close range. Four shots were fired, three of which struck the deceased. Any three of the shots would have resulted in Hegstrom’s death.

The trial court accepted the defendant’s plea of guilty. After viewing photographs of the deceased, the court found that the offense was accompanied by exceptionally brutal or heinous behavior. An extended term of 10 years’ imprisonment was imposed on the defendant.

There was no post-trial motion to vacate the judgment, nor was there a direct appeal. However, on May 20, 1981, the defendant filed a pro se petition for post-conviction relief. He alleged that his plea was involuntary, that his trial counsel had been ineffective, and that voluntary manslaughter was something done in “hot blood” and could not be brutal or heinous. Counsel was appointed to represent the defendant, and an amended petition for post-conviction relief was filed. The defendant’s claim of ineffective assistance of trial counsel was repeated.

An evidentiary hearing on the petition was held on February 2, 1982. The defendant testified that his trial counsel refused to file certain pretrial motions and forced him to plead guilty. The allegations made by the defendant were rebutted by his trial counsel, who testified for the State during the hearing. The defendant’s attorney claimed to have fully advised the defendant of the possibility of an extended term under the circumstances.

Following the evidentiary hearing, the defendant’s petition for post-conviction relief was denied. The court determined that the defendant received effective assistance of trial counsel. The defendant appealed from the denial of his petition.

Many points are raised by both the defendant and the State in their briefs. However, the basic issue argued by the defendant concerns the extended term of imprisonment. Relying upon People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, the defendant asserts that a judgment of guilty for the offense of voluntary manslaughter precludes a finding that the crime was accompanied by exceptionally brutal or heinous behavior. In Evans, the defendant was convicted of voluntary manslaughter based on his unreasonable belief that he was acting in self-defense. He was given an extended term because of the wanton cruelty accompanying the crime. Our supreme court found that actions committed under a subjective but unreasonable belief that such actions were necessary in self-defense do not constitute wanton cruelty.

The defendant states that it is error to apply the aggravating factor of brutal or heinous behavior when a person kills another under a sudden and intense passion resulting from serious provocation by the deceased. He claims that the gruesome nature of the deceased’s wounds do not provide a basis for an extended term. The defendant asks this court to extend Evans to killings of this nature.

Prior to our consideration of the issues presented for review, a motion taken with the case must be presented. The State filed a motion to strike certain portions of the defendant’s brief. Those portions concern statements made by the appellate counsel that the defendant’s post-conviction counsel was not aware of People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, at the time of filing the amended petition or at the time of the evidentiary hearing. The defendant’s appellate counsel also stated that he spoke with the post-conviction counsel and learned that the post-conviction counsel was not aware of Evans. The defendant claims that the inference can be drawn from the record that post-conviction counsel could not have known about Evans because the hearing was held on February 2, 1982, and the decision was not published in the West Advance Sheet Reporter until February 3,1982.

As pointed out by the State, the defendant’s appellate counsel has made unsworn and unverified statements concerning whether post-conviction counsel was informed of certain case law. These statements are evidence not of record. Nor can an inference be drawn that post-conviction counsel could not have known about Evans as the case appears in the Official Reports of January 6, 1982. Therefore, the State’s motion to strike the statements as evidence not of record is allowed.

Turning to the issue presented in the case at bar, the State argues that the defendant has waived consideration of the issue on appeal because it was not presented in the defendant’s amended post-conviction petition. The defendant claims that a sentence which is excessive can be attacked collaterally. (In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910.) He also states that fundamental fairness requires this court to consider the issue. Should we deem the issue waived on appeal, the defendant then asserts that he was denied effective assistance of post-conviction counsel because the issue was not presented in the amended petition.

The State further points out that if the issue had been presented in the post-conviction petition, it would have been an improper basis for relief. The question whether the brutal or heinous aggravating factor should be used to justify an extended term is one of statutory rights and does not involve an issue of constitutional dimension.

After considering the arguments by both parties, it appears that a determination of the issue on appeal would be a proper solution. We have examined the Evans case and relevant case law, and find that we do not agree with the defendant’s position that Evans should be extended. The Evans case clearly dealt with a factual situation different from the case at bar. The supreme court was quite explicit in its language that actions committed under the unreasonable belief that the actions were in self-defense do not constitute wanton cruelty. It does not necessarily follow that killing another while under a sudden and intense passion provoked by the deceased cannot be accompanied by brutal or heinous behavior.

In the instant case, the defendant, while acting under a sudden and intense passion, shot another man. The defendant used a sawed-off pump shotgun which he fired four separate times. Any of the three wounds inflicted on the deceased would have killed him, and yet the defendant continued to fire. We find that this behavior was indicative of wanton cruelty. An extended term was proper based on the aggravating factor applied. People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.

Having determined that the Evans opinion will not be extended to this situation, it is not necessary to consider the other issues raised on appeal. Therefore, the judgment of the circuit court of Will County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE PRESIDING JUSTICE BARRY,

text:
    EMANUEL MANIAS, Plaintiff-Appellee and Cross-Appellant, v. PEORIA COUNTY SHERIFF’S DEPARTMENT MERIT COMMISSION, Defendant-Appellant and Cross-Appellee.
    Third District
    Nos. 81—632, 81—647 cons.
    Opinion filed October 12, 1982.

      BARRY, P. J., dissenting in part and concurring in part.
    John A. Barra and Chris L. Fredericksen, both of Peoria, for appellant.
    Thomas F. McGuire, of Long Grove, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Following a hearing before the Peoria County Sheriff’s Merit Commission, Lieutenant Emanuel Manias was found guilty of violating rules of the Sheriff’s Office Duty Manual. As punishment, the commission ordered him reduced in rank from lieutenant to deputy sheriff. The complaint against Manias was in two counts.

The first charge alleged that Manias engaged in conduct unbecoming an officer which would tend to bring discredit to the sheriff’s department and that on December 6, 1980, Manias engaged in acts which resulted in the abuse of Peoria County property. The underlying factual basis for that charge was that Manias drove a squad car after being warned that the car had a broken fan belt whereupon the car caught fire and was destroyed.

The second charge alleged that Manias filed a false report pertaining to the above incident. Specifically, that he lied when he denied in his report that the red alternator light on the car’s dashboard was flashing when he drove it.

On appeal to the Peoria County Circuit Court, the finding on the first charge was affirmed, the finding on the second charge was reversed, and the cause was remanded to the commission for reconsideration of the penalty. Cross-appeals were filed.

As to the first charge, there is no question but that the car caught fire after Manias drove it. There is no evidence, however, that Manias drove the car to damage it or that he could have reasonably expected that such damage would occur. Moreover, there is no evidence in the record to indicate what caused the fire. To conclude that the fire started because of the broken fan belt is to indulge in sheer conjecture. For Manias to be guilty as charged, it must be proven that he intentionally or recklessly caused damage to the car. To prove that the car had a broken fan belt; to prove that Manias knew of the broken fan belt; to prove that Manias drove the car with this knowledge; and to prove that the car thereupon caught fire, all taken together, do not prove that Manias violated any rule of the Sheriffs Office Duty Manual or that, indeed, Manias did anything wrong. What would have to be shown is that the broken fan belt caused the fire and that Manias knew or should have known that a fire would be caused if he drove a car with a broken fan belt. Such proof was lacking.

The record discloses that before Manias came into possession of the subject car, the car was in the possession of Sergeant Bland who drove the car during his shift. Toward the end of his shift, Bland noticed the red alternator light appear on the dashboard. The car commenced to handle as if it had manual steering when, in fact, it was equipped with power steering. Bland drove the car back to the jail where he investigated under the hood. There he observed a broken fan belt. Bland removed the fan belt and placed it on the radiator. Nothing else appeared unusual about the car or its engine to Bland. He then reported the broken fan belt to Manias. In response to Manias’ question if the car could be driven to the garage to be replaced, Bland’s only expressed concern was whether the car would have sufficient electrical power to be driven. Bland’s warning went no further. Bland did not tell him about the red alternator light. He did not tell him that he had removed the fan belt and placed it on the radiator. There was no warning about the possibility of fire. While the record shows that Bland told Manias not to drive the car (only because of the broken fan belt), the record also reveals that Bland told Manias he could drive the car if he kept the alternator/battery going.

Manias’ purpose in driving the car was to deliver the disabled car to a different post. He knew that no mechanic was on duty at the time (1 a.m.) and he wanted to pick up another squad car for his use during the approximately three-hour balance of his shift.

To minimize the drain of amperage during the six-mile trip, Manias used his parking lights, rather than headlamps, as needed. Although he noticed that the power steering was not operating, he stated that the car was not any more difficult to steer than a manual vehicle without power steering. He also stated that he did not observe the red alternator light flash on at any time during the drive.

Upon arriving at his destination, Manias parked the car and proceeded into the building. He placed the keys in a box, observed that three other cars were available, picked up a key to one of those cars and sat down to chat with the officers on duty. Within a few minutes, another officer said he heard a popping noise and went to the door to check it out. He yelled back that the car was on fire. The vehicle was burned beyond repair at a cost of $7,142 and could be used thereafter only for its parts.

That a fire occurred after Manias drove the car is undisputed. But nowhere in the record is the cause of the fire established. Post hoe ergo propter hoe or “after this, hence because of this,” is one of the classic logical fallicies. That is to say, it is not sufficient to conclude that a prior event caused the second event merely because event two followed event one in sequence. A myriad of causes can result in a car catching fire. In truth, no one knows what caused the car to catch fire on the night Lieutenant Manias drove it. Perhaps it was the broken fan belt. Perhaps it was something else. Moreover, nowhere in the record is there evidence that fire is a foreseeable consequence of driving a car six miles with a broken fan belt. Thus, it is unreasonable to find Manias guilty of misconduct and abuse of property in light of the evidence presented. Presumably, the car might have caught fire even if Lieutenant Manias had not driven it at all. In such case, Sergeant Bland would have been the last person to drive the car. There is no rule that holds a person accountable merely because a car catches fire after he uses it.

The second count charged that Manias lied about the fire. Specifically, count II alleged that Manias filed a false report about the fire in that he denied seeing the red alternator light when he drove the vehicle immediately preceding the fire.

Several days after the fire, Chief Deputy Gail Owens took a statement about the incident from Manias. This statement was transcribed into a written document and signed by Manias. Therein, Manias asserted that he did not see any red warning lights appear when he drove the car. In fact, he experienced no trouble with the car when he drove it, except for the steering which was a little stiff but certainly maneuverable. He claimed it was no different from his own car, which has manual steering. A month and one-half later, the sheriff ordered Manias to submit to a polygraph examination about the fire.

Pursuant to the two count charge against Manias, several days of hearings were held before the Peoria County Sheriff’s Department Merit Commission. Manias told the commission the same story: he saw no warning lights and had no reason to believe the car was in immediate danger of fire destruction or any type of destruction. The polygraph examiner testified that Manias lied when he said that he did not see the red alternator light.

As a matter of law, polygraph results are not reliable and are inadmissible in administrative hearings.

In People v. Baynes (1981), 88 Ill. 2d 225, 244, 430 N.E.2d 1070, 1079, the Illinois Supreme Court determined that admission of polygraph evidence in a criminal trial is plain error because such evidence is not reliable enough to be admitted for the purpose of determining a person’s guilt or innocence. Similarly, in Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 121, 429 N.E.2d 901, 904, an appeal from a finding of guilt entered by the Tazewell County Sheriff’s Merit Commission, which was affirmed in the trial court, we stated:

“Although the rules of evidence are more casual in an administrative adjudication (Northwestern University v. City of Evanston (1977), 55 Ill. App. 3d 609, 370 N.E.2d 1073, rev’d on other grounds (1978), 74 Ill. 2d 80, 383 N.E.2d 964), such casualness cannot abrogate the right to a just, fair and impartial hearing. With the reliability of the polygraph examination so vulnerable to so many varying attacks, we believe justice, fairness and impartiality are abrogated when the results of such examinations are considered as substantive evidence.”

(See also McGowan v. City of Bloomington (1981), 99 Ill. App. 3d 986.) Accordingly, we affirm the trial court’s finding of error in the admission of polygraph test results at Manias’ hearing before the commission.

Once the polygraph evidence is excised, the record is devoid of any evidence that Manias lied. All that was proved on this point was that the red alternator light flashed on the dashboard prior to Manias’ possession of the vehicle. A service representative for the auto company testified that the warning light would appear “periodically” and light up the dash if it were operating. He acknowledged that it could malfunction. He specifically testified that the light would come on if the bulb was not burned out, if the battery had a charge and if the car had no electrical problems. A mechanic testified that a defect in the electrical system could cause an alternator light not to activate. This testimony notwithstanding, as it is not Manias’ burden to prove he did not lie, the credible evidence in the record demonstrates that the sheriff did not prove that Manias knowingly filed a false report about the fire.

Accordingly, there being no credible evidence to support either of the two charges against Lieutenant Manias, the trial court should be affirmed in its dismissal of the charges as to false report and reversed as to its affirmance of the charges as to damaging property. Neither charge being supportable by the evidence, there is no occasion to remand this proceeding either to the trial court or the commission. Emanuel Manias is entitled to reinstatement to his rank of lieutenant without further proceedings.

Trial court affirmed in part and reversed in part. Plaintiff Emanuel Manias ordered reinstated.

Affirmed in part; reversed in part.

SCOTT, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting in part and concurring in part:

I choose, at the risk of some repetition, to recite the facts as I believe the record shows them to be, and to separately express my views on the issues as presented to us by the parties.

On December 5, 1980, Sergeant Earl Bland of the sheriff’s department, while on duty and driving squad car No. 717, observed that the alternator light was flashing on the dashboard and the vehicle became difficult to steer. He proceeded approximately seven blocks to the jail, raised the hood, and discovered that the main fan belt was broken.

Since Bland’s shift was over, he walked into the jail house and reported the squad car disablement to his relief, Lieutenant Manias. Manias was engaged in a telephone conversation when Bland approached him with news of the squad car problem, and the testimony of the two officers differed somewhat as to the information they exchanged concerning the car. According to Manias, he was discussing on the telephone the whereabouts of a woman he had previously arrested who had failed to return to the jail. The person he was talking with said that if he went to a certain tavern right away, he could pick her up. He said Bland came in and mentioned a problem with the power steering and said that the fan belt was broken. Manias then asked if the car could be driven to Post 3, the squad room about six miles away where the Department’s repair shop was located. It was Manias’ understanding that Bland answered to the effect that the car couldn’t be driven all night because it would lose amperage and the battery would give out. Contrariwise, Bland’s testimony concerning the matter was that he told Manias, as Manias was leaving the building to pick up the prisoner, not to take squad car No. -717. What was actually communicated is a question of fact, of course.

In any event, Manias encountered Detective Dave Owens on his way out of the jail house and arranged to take Owens’ car, an unmarked squad car, to pursue the missing prisoner. Meanwhile, squad car No. 717 remained parked at the jail. Around 1 a.m. that night, after he had returned from an unsuccessful search for the female prisoner, Manias decided to deliver the disabled squad car to Post 3. Manias knew at the time that no mechanic would be on duty until later in the morning, but he wanted to pick up another squad car for his use during the approximately three-hour balance of his shift.

To minimize the drain of amperage during the six-mile trip, Ma- • nias used his parking lights, rather than headlamps, as needed. It was his recollection at the hearing before the commission that he had stopped only once for a stop sign and had driven about five miles per hour over the speed limit, averaging between 35 and 50 miles per hour during the drive. Although he noticed that the power steering was not operating, he stated that the car was not any more difficult to steer than a manual vehicle without power steering. He also stated that he did not observe the red alternator light flash on at any time during the drive to Post 3.

On arriving at his destination, Manias parked squad car No. 717 and proceeded into the building. He placed the keys to No. 717 in a box, observed that three cars were available, picked up a key to one of those and sat down to chat with the officers on duty. Within a few minutes, Officer Harry Tomkins, in charge of the squad room at the time, said he’d heard a popping noise and went to the door to check it out. He yelled back that No. 717 was on fire. The vehicle, a 1980 Ford LTD which had cost the department $7,142, burned beyond repair, and could only be used thereafter for its parts.

On December 10, 1980, Lieutenant Manias was interviewed by Chief Deputy Gail Owens concerning the fire. Manias thereafter gave a written statement which was ultimately admitted into evidence at the administrative hearing. On January 26, 1981, Manias was ordered by the sheriff to submit to a polygraph examination concerning the December 5-6 incident. The polygraph examiner testified at the hearing that it was his opinion that Manias had not been truthful when he stated that he had not noticed any mechanical problem with No. 717 other than the power steering, specifically when he denied having seen the alternator light flash on during the trip to Post 3, and when he stated that he had not intentionally lied in the statement given to Chief Owens.

On February 16, 1981, the sheriff of Peoria County filed a complaint with the commission charging violations of Rules 3.5(7), 3.5(4), and 3.5(6) of the Sheriff’s Office Duty Manual of Rules and Regulations. Specifically, these rules permit the imposition of disciplinary action for: failure to report honestly and accurately all facts pertaining to an investigation or other matter of concern to the department; conduct unbecoming an officer, which would tend to bring discredit to the department; and abuse of county property, respectively.

After receiving the testimony and other evidence, including demonstrations and exhibits, the commission, as fact-finder, entered its order finding that Lieutenant Manias was guilty of violating the rules as charged and imposing as punishment therefor a reduction in rank from lieutenant to deputy sheriff.

On May 6, 1981, Manias filed a complaint for administrative review contesting both the findings of guilt and the punishment imposed by the commission. After reviewing the record and considering arguments of counsel, the trial court entered its order, reversing the commission’s finding of guilt as to count II (failure to report honestly and accurately) and affirming the finding of guilt as to count I (official misconduct and abuse of county property), and remanded the cause to the commission for reconsideration of the punishment to be imposed. This appeal and cross-appeal ensued.

The commission raises three primary issues on appeal: (1) Whether the trial court erred by permitting Manias to raise issues or defenses not presented to the administrative agency; (2) whether polygraph examinations are admissible in administrative proceedings; and (3) whether introduction of the polygraph examination results, if error, was nevertheless harmless under the circumstances of the case. Manias’ cross-appeal raises additional issues: (1) Whether the commission’s finding of guilt on count I was contrary to the manifest weight of the evidence; and (2) whether the commission.improperly admitted as evidence Manias’ oral and written statements to Chief Deputy Owens.

The commission grounds its initial argument on the fact that at the administrative hearing Manias’ counsel objected to testimony concerning the results of the polygraph examination specifically on the basis that no written warnings were given and that the examination had not been transcribed pursuant to Palcek v. City of Chicago Heights (1979), 74 Ill. App. 3d 702, 393 N.E.2d 1218. On review however the trial court, in reversing the finding of guilty on count I, agreed with Manias and found as a matter of law that polygraph results are not reliable. McGowen v. City of Bloomington (1981), 99 Ill. App. 3d 986, 426 N.E.2d 328.

I find that Manias’ counsel sufficiently preserved the issue of reliability of polygraph examination results at the administrative hearing so that his arguments on admissibility of such evidence were properly before the trial court on review. Dr. Brian Curtis, professor of physiology at the University of Illinois School of Medicine, Peoria, appeared before the commission as the first witness to testify on behalf of Manias. His testimony related solely to the reliability of the polygraph as a scientific tool for determining truth or falsity of a subject’s answers to questions. It was his opinion that the polygraph is not reliable for determining that a subject lied, although it is relatively accurate for determining that a subject told the truth.

In rebuttal, counsel for the sheriff produced Joseph P. Buckley III, director of John Reid & Associates of Chicago, who testified in favor of the reliability of polygraph examination results. In final arguments before the commission, counsel for both parties vigorously argued the issue of the polygraph’s reliability. Mr. Serritella, counsel for Manias, specifically argued to the commission that polygraph results are inadmissible in both civil and criminal court proceedings because of their unreliability.

I believe that the record before the circuit court on review adequately raised the issue of the inadmissibility of polygraph results based on unreliability even though counsel’s specific objection to the evidence during the presentation of the sheriff’s case in chief was based on the Palcek case. The commission cannot claim surprise or that it was deprived of an opportunity to contest the issue of polygraph reliability at the administrative hearing. It is my opinion that principles of fundamental fairness should apply so as to permit Manias to present the polygraph reliability issue to the trial court on review. See 2 Am. Jur. 2d Administrative Law secs. 724-726 (1962).

The commission’s second argument on appeal is that polygraph examination results are admissible for purposes of an administrative hearing such as was had in this case. I agree with the majority opinion in that polygraph examination results are inadmissible.

The commission’s final argument is that even if Manias sufficiently preserved the reliability issue and the trial court was correct in finding that admission of the test results was error, such admission in this case was, nonetheless, harmless. Again, I concur with the majority’s implicit holding that admission of polygraph results is not harmless.

The commission relies primarily upon testimony from Officer Bland in asserting that ample evidence independent of the polygraph testimony established that Manias lied when he stated he had not seen the red alternator light come on during his trip to Post 3. However, the evidence established that as a consequence of the broken fan belt, the battery would lose its charge. Whether this might have caused the alternator light to dim, or whether another electrical malfunction might have caused the light not to come on were possibilities presented to the commission to explain the discrepancy between what Officer Bland had observed when he dropped No. 717 off at the jail and what Manias purportedly observed some three hours later when he drove the car to Post 3. I cannot say therefore that the evidence, without consideration of the polygraph testimony, overwhelmingly supports the commission’s conclusion that Officer Manias lied. I would affirm the trial court’s determination that the admission of the polygraph test is reversible error.

The trial court remanded the instant case to the commission solely for reconsideration of the penalty. However, because the evidence of record as to count II (failure to report honestly and accurately) is conflicting and witness credibility is at issue, unlike my colleagues, I do not believe that we are in a position to determine on the record before us that the evidence of guilt without polygraph results is insufficient to sustain the charges.

Manias.contends that oral and written statements given by him to Chief Deputy Owens are inadmissible under the principles of Palcek v. City of Chicago Heights. I find no merit in the lieutenant’s position. Palcek held that, with respect to the right to written warnings before giving a statement which could serve as a basis for disciplinary proceedings, a city-employed police officer was entitled to the same protection afforded other city-employed civil servants. The court applied the doctrine of in pari materia by reading sections 10 — 1—18 and 10 — 1—18.1 of the Municipal Code into section 10 — 2.1—17 (Ill. Rev. Stat. 1977, ch. 24, pars. 10-1-18, 10-1-18.1, 10-2.1-17). Subsequent decisions have raised doubts about the result reached in Palcek (Lupo v. Board of Fire & Police Commissioners (1979), 82 Ill. App. 3d 449, 402 N.E.2d 624), and the applicability of the Palcek reasoning to disciplinary actions advanced under other statutes and ordinances. Resman v. Personnel Board (1981), 96 Ill. App. 3d 919, 422 N.E.2d 120 (under home rule powers, city enacted an ordinance which superseded the conflicting State statute and made the doctrine of in pari materia unavailable for purpose of including within the city code the requirement of section 10 — 1—18 of the State code); accord, Mandarino v. Village of Lombard (1980), 92 Ill. App. 3d 78, 414 N.E.2d 508; Gegenwarth v. Department of Law Enforcement (1982), 103 Ill. App. 3d 568, 431 N.E.2d 1383 (statute applicable to State law enforcement officers (Ill. Rev. Stat. 1979, ch. 121) does not require reading in section 10 — 1—18 of Municipal Code to ensure equal protection for State-employed officers).

I would hold, as did the courts in Resman, Mandarino and Gegenwarth, that the doctrine of in pari materia is inapplicable in the present case because the statute governing the disciplinary proceeding herein (Ill. Rev. Stat. 1981, ch. 125, par. 164) is distinct from the Municipal Code. Neither the County Police Department Act (Ill. Rev. Stat. 1979, ch. 125, par. 101 et seq.) nor the newly enacted Sheriff’s Merit System Act (Ill. Rev. Stat. 1981, ch. 125, par. 151 et seq.) requires that Miranda-type warnings be given before an officer’s statement may be taken for use in subsequent disciplinary proceedings. I find no constitutional infirmity in the admission of Manias’ oral and written statements at the administrative action brought by the sheriff herein. Accordingly, I would remand this cause to the commission for a new hearing on count II and for reassessment of the penalty.

In addition, Manias argues that the commission’s finding of guilt as to count I (conduct unbecoming an officer and abuse of property) is contrary to the manifest weight of the evidence and cannot be sustained upon review since any violation of department rules was not shown to be intentional. Manias’ manifest weight argument is merit-less. And I believe the majority, in adopting Manias’ position, misinterprets the mental element implicit in the charges. The sheriff’s evidence conclusively established that Manias drove squad car No. 717 knowing it to be disabled at the time. That he may not have contemplated the resulting damage thus caused to the county-owned vehicle does not make his act unintentional. Manias’ reliance on our recent decision in Hale v. Hellstrom (1981), 101 Ill. App. 3d 1127, 428 N.E.2d 1197, is misplaced. In Hale, an officer was disciplined for intentionally allowing unauthorized personnel to enter a crime scene. We found there that the evidence failed to support a finding of intentional violation. Officer Hale was acting in an emergency-type situation and he failed to ascertain whether uniformed dispatchers at the scene were authorized to be there. Had they been so authorized, Hale’s act would have been condoned.

By contrast, in the present case Manias admitted that he knew that squad car No. 717 was disabled. He intentionally did not use it to pursue the female prisoner because he knew that he might encounter problems with the car. Nonetheless, disregarding the vehicle’s disable-' ment, he later intentionally drove it without headlights and through stop signs over 6 miles to Post 3. The resulting fire damage, even if not contemplated by Manias, was the consequence of an intentional act for which he is accountable under these circumstances. Accordingly, on the facts before us, I find no want of evidence sufficient to sustain the mental element of intent implicit in the sheriff’s charge in count I of the complaint.

In sum, I would affirm the finding of guilt on count I and remand this cause to the commission for a new hearing on count II with directions to exclude results of the polygraph examination and to reassess the penalty.


author: JUSTICE McGLOON

text:
    MELVIN H. DeGRAFF, Plaintiff-Appellant, v. BURTON R. KAPLAN, Defendant-Appellee.
    First District (1st Division)
    No. 81—1093
    Opinion filed September 20, 1982.
    Allen C. Engerman, Barry A. Erlich, and Peter Berman, all of Engerman, Erlich & Berman, Ltd., of Chicago, for appellant.
    Rosemarie J. Guadnolo, Andrew B. David, and Judy I. Byrd, all of Arvey, Hodes, Costello and Burman, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff filed an action seeking an accounting of partnership assets derived from trading on the International Monetary Market. The trial court held that an accounting was not warranted and entered judgment for defendant. The trial court also denied defendant’s motions for attorney fees.

On appeal, plaintiff contends (1) the trial court erred in admitting extrinsic evidence to interpret the- terms of a partnership agreement and (2) the finding that plaintiff allowed defendant to use a partnership asset for defendant’s benefit is not supported by the evidence. In a cross-appeal, defendant argues the trial court erred in denying his motion for fees.

We affirm.

Plaintiff Melvin DeGraff and defendant Burton Kaplan were partners in the accounting firm of DeGraff, Kaplan & Company. In October 1973, they purchased a membership seat on the International Monetary Market (IMM), a division of the Chicago Mercantile Exchange. Each contributed one-half of the purchase price of $14,500. Their written agreement provided:

“Melvin H. DeGraff and Burton R. Kaplan hereby agree that they are equal partners in the below described venture. Any profits, expenses, or other obligations or receipts from the venture received or paid by either of the parties shall be held in trust for the benefit of the parties or paid on behalf of both parties. Name of Venture: Membership Seat on the International Monetary Market of the Chicago Mercantile Exchange.
Other Parties involved, if any: None.
Date: 10/31/73
/S/Melvin H. DeGraff
/S/Burton R. Kaplan”

The agreement was a blank partnership form. DeGraff filled in the name of the parties and the description of the venture.

Kaplan acquired the membership and opened the trading account in his own name. On the application for membership, Kaplan noted that he intended to assign the right of membership commission rates to DeGraff, Kaplan & Company when various future positions were closed. The condition never occurred and therefore the assignment was not made.

Near the time DeGraff and Kaplan purchased their membership seat, DeGraff purchased another IMM seat in his own name in order to conduct his own trading. Vittorio Laudati paid the purchase price. DeGraff applied for a membership but conducted no trading. The seat was eventually sold. The agreement entered into by DeGraff and Laudati distinguished between trading and the purchase of a seat. It provided that only Laudati would benefit from any increase in the value of the membership, but that Laudati would not participate in trading profits or losses.

In December 1974, Kaplan opened a trading account with his personal funds. Kaplan testified that DeGraff did not object and made no claim to the trading proceeds until July 1978. DeGraff never offered to contribute to the trading account nor did Kaplan ask for contributions from DeGraff. On the other hand, DeGraff testified that he asked Kaplan several times each year about the results of trading and that he relied on Kaplan’s representations regarding trading profits and losses. In 1974, 1975, and 1976, Kaplan told him no profits or losses occurred. DeGraff further testified that in 1977 and 1978, Kaplan stated DeGraff would get his share of the profits, but no distribution could be made because he needed the funds for trading. Kaplan never produced trading records for the account when DeGraff requested them.

Kaplan reported the trading profits and losses on his personal tax returns. DeGraff neither listed profits or losses nor claimed any right to them on his tax returns. Richard Hoeh, a certified public accountant with a graduate degree in business administration and a former employee of the Internal Revenue Service, testified as an expert witness. He testified that if DeGraff believed he had an interest in the trading profits or losses, he was required to disclose this fact on his. tax returns even if he did not know the specific amount. He further testified that he examined the returns filed by DeGraff and Kaplan in the years 1974 through 1977. Reporting capital gains and losses realized by trading on the IMM would have benefitted DeGraff in these years, but DeGraff ignored them. Only Kaplan reported them.

Lenore Annes, a secretary for the accounting firm of DeGraff, Kaplan & Company, testified that in 1977 and 1978, DeGraff stated he wanted to restructure the partnership agreement with Kaplan so that he would profit from the trading. DeGraff wanted an agreement similar to that entered into by his friends whereby partners would share equally in the profits.

In 1978, Kaplan withdrew $150,000 to $200,000 from his trading account. No profits had been withdrawn prior to this time. On July 27, 1978, DeGraff served on Kaplan a demand to share in the trading profits. Kaplan did not account for the income and expenses of the IMM trading and did not share profits or commissions.

On December 13, 1978, DeGraff served notice on Kaplan to dissolve the partnership. He immediately filed an action to enjoin Kaplan from further trading on the IMM and for an accounting of partnership receipts and disbursements. The parties agreed that Kaplan would purchase DeGraff s interest in the seat for $80,000. The only issue remaining was whether DeGraff should share in the trading profits.

After trial, the court found that the partnership was limited to an investment in the IMM seat and that the partnership did not include trading activities of Kaplan. It further found that the parties intended the trading profits and losses to be Kaplan’s exclusively and therefore an accounting was not required.

First, plaintiff contends the trial court erred in admitting extrinsic evidence to determine the intent of the parties. He maintains that the agreement clearly and unambiguously states that the parties were to share equally in profits and losses and extrinsic evidence was therefore unnecessary.

However, plaintiff fails to note the additional language in the agreement pertaining to and describing profits and losses. Specifically, the agreement provides that “Any profits, expenses or other obligations or receipts from the venture *** shall be held in trust for the benefit of the parties ***.” (Emphasis added.) The venture was defined as a “[membership seat on the International Monetary Market of the Chicago Mercantile Exchange.” The definition of the venture unquestionably is important in determining the nature of the partnership and the parties rights under the agreement.

Returning to the issue recited above, the following legal principles are applicable. The question of whether the language in a document is ambiguous is a matter of law to be decided by the trial court. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 418 N.E.2d 59; Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 399 N.E.2d 623.) An ambiguous contract is one that is capable of being understood in more than one manner. (Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152.) When the court determines that an ambiguity exists, extrinsic evidence may be introduced to ascertain the true meaning of the agreement. Pioneer Trust & Savings Bank v. Lucky Stores, Inc.; Rao v. Parvathaneni (1979), 72 Ill. App. 3d 1, 390 N.E.2d 496.

Without the benefit of the evidence presented at trial, the partnership agreement was susceptible to two meanings. The first, consistent with plaintiff’s theory, was that the parties intended the phrase membership to include subsequent trading. The second meaning was that the parties meant to share the profits from the membership seat only. The term “membership seat on the International Monetary Market” is not a term of common, ordinary usage and as such is not easily defined. Thus the trial court properly allowed and considered extrinsic evidence to determine the intent of the parties.

Plaintiff further contends the trial court effectively added a term to the contract which did not exist by distinguishing between trading profits and losses and profits derived from a sale of the IMM membership. He further adds that if the parties intended to draw this distinction, they would have inserted an appropriate provision. However, the evidence presented at trial indicates a definite distinction between these two types of profits and losses. The parties specifically limited the partnership, venture to a membership seat which, as the trial court found, did not include trading profits and losses. Had the parties intended to include trading profits, a provision similar to that in the DeGraff-Laudati agreement could have been inserted.

Second, plaintiff contends the trial court’s finding that. plaintiff consented to defendant’s use of the partnership asset for defendant’s benefit is not supported by the evidence.

However, we find sufficient evidence supporting the trial court’s finding. DeGraff knew the difference between purchasing a seat and trading. This is evidenced by the differences between De-Graff’s agreements with Kaplan and Laudati. Indeed, DeGraff completed the partnership agreement between himself and Kaplan and the DeGraff-Laudati agreement was prepared at DeGraff’s direction. Also, Kaplan used his personal funds for trading and DeGraff never offered to contribute funds for trading. Kaplan reported all gains and losses on his tax returns. DeGraff, an accountant by profession, never disclosed a right to profits and losses on his returns.

In his cross-appeal, Kaplan contends the trial court erred in denying his motion for attorney fees under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).

The purpose of section 41 is to penalize a litigant who, in bad faith, brings vexatious or harassing actions based on false statements or brought without legal foundation. (Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 376 N.E.2d 621.) Because it is penal in nature, section 41 may be invoked only in cases falling strictly within its terms. (Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.) The trial court’s decision on this issue is entitled to great weight and will not be reversed absent a clear showing that such discretion was abused. Williams v. City of Chicago.

Granted, the trial court resolved the factual issues in favor of defendant. However, this alone does not entitle defendant to fees. (Theodorou v. Community Builders, Inc. (1972), 6 Ill. App. 3d 277, 285 N.E.2d 474.) In view of the fact the agreement was ambiguous and susceptible to different interpretations, we cannot say that the action was brought in bad faith. We therefore will not disturb the ruling of the trial court on the motion.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: JUSTICE McNAMARA

text:
    MARC B. JACKSON, a Minor, by Arletta Dymond, His mother and Next Friend, et al., Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 81—2406
    Opinion filed October 6, 1982.

      Schmidt & Fleischaker, of Chicago (Philip J. Schmidt and Stephen E. Vargo, of counsel), for appellants.
    Kralovec, Marquard, Doyle and Gibbons, Chartered, of Chicago (Harry Ray Chiles, Jr. and John C. Doyle, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Marc B. Jackson, a minor, by his mother and next friend Arietta Dymond, and Arietta Dymond individually, filed a six-count complaint to recover damages from defendant Chicago Board of Education for injuries sustained and expenses incurred when the child fell from a swing in the school playground. Plaintiffs appeal from an order of the trial court granting defendant’s motion to dismiss counts I, II, V and VI because of the immunity granted to defendant under section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 3 — 106). The trial court’s striking of counts III and IV, which alleged wilful and wanton misconduct, is not involved in this appeal.

The child was injured while using the swings in a school playground owned and controlled by defendant. In count I the child seeks damages for those injuries; in count II the mother seeks recovery for expenses incurred for the child’s care. Plaintiffs alleged in both counts that the child’s injuries were caused by defendant’s negligence in failing to supervise the playground properly; failing to maintain the swings adequately; and failing to provide and maintain adequate mats for the protection of children falling from the swings. Counts V and VI, also alleging negligence on the part of defendant, seek to impose liability upon a theory of attractive nuisance.

Section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act provides as follows:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless such local entity or public employee is guilty of willful and wanton negligence proximately causing such injury.”

Defendant, of course, is a public entity for the purpose of the Act; and plaintiffs alleged that defendant’s liability was based on the condition of property used as a playground. Consequently, since plaintiffs did not allege wilful or wanton misconduct on the part of defendant, the dismissal of counts I and II based on the immunity conferred by section 3 — 106 was proper.

Plaintiff’s reliance on the holding in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, for their contention that section 3 — 106 is inapplicable in the present case is clearly misplaced. Section 3 — 106 was neither raised nor considered in Gerrity. Rather, that case involved section 34 — 84a of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 34 — 84a), which immunizes teachers from liability for ordinary negligence while they are acting in a supervisory or disciplinary capacity. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) The purpose behind the enactment of section 34 — 84a was to promote orderly conduct by fostering the kind of personal student-teacher relationships which would give the teacher disciplinary and supervisory authority similar to that of a parent. (Gerrity v. Beatty.) In light of that purpose, the court in Gerrity found that section 34 — 84a was inapplicable where the school district furnished students with defective football helmets since no student-teacher relationship was involved.

On the contrary, application of section 3 — 106 here is directly in line with its purpose which is to encourage the development and maintenance of public parks, playgrounds and similar recreation areas. (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175.) Plaintiffs’ argument that a public entity should be liable for ordinary negligence where the liability is based on the condition of property used as a playground was resolved against plaintiffs by the legislature when it enacted section 3 — 106.

Nor did the trial court err in dismissing counts V and VI which were based on an attractive nuisance theory. Plaintiffs alleged that the swings and matting were defective and likely to cause injury to children using them because of the children’s inability to appreciate the risk involved and that defendant knew or should have known that young people frequented the playground.

The doctrine of attractive nuisance as modified in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, merely recognizes an exception to the general rule that an owner or occupier of land is under no duty to keep the premises in any particular condition to promote the safety of persons who come onto the land uninvited. The exception occurs where a child, whose presence on the land is foreseeable, is injured due to a condition on the property which is hazardous by reason of the child’s inability to appreciate the risk involved. The attraction element is no longer significant except as to the extent that it indicates whether the landowner should have anticipated the presence of children on the premises.

The present case is not concerned with defendant’s duty of care to an uninvited child. Indeed the foreseeability of the child’s presence on the public playground is obvious and not an issue in this case. The doctrine of attractive nuisance is inapplicable and in no way negates defendant’s immunity from liability for the child’s injuries pursuant to section 3 — 106. We find that counts V and VI failed to state a cause of action and were properly dismissed.

For the reasons stated, the judgment of the circuit court of Cook County dismissing counts I, II, V and VI of plaintiffs’ complaint is affirmed.

Judgment affirmed.

WHITE, P. J., and McGILLICUDDY, J., concur.


author: JUSTICE UNVERZAGT

text:
    ELGIN NATIONAL BANK, Trustee, Petitioners-Appellants, v. A. CORILLA ROWCLIFF, Supervisor of Assessments, Kane County, et al., Respondents-Appellees.
    Second District
    No. 82—45
    Opinion filed October 5, 1982.
    Rehearing denied November 10, 1982.

      Donald J. Weaver, of Elgin, for appellants.
    Robert J. Morrow, State’s Attorney, of Geneva, and Clarence F. Wittenstrom, Jr. and Erwin Jentsch, both of Elgin, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This case is a follow-up of Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507. In that case, Ciacco, a resident of Elgin, sought an injunction against the city of Elgin to restrain the city from proceeding with the establishment of a special taxing district designated by city ordinance as “Elgin Special Service Area” and the spending of public monies pursuant to such ordinance, on the ground that the ordinance was void for failure to comply with the provisions of the enabling legislation authorizing the creation of such special taxing district. (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.) The complaint for injunction also attacked the ordinance creating the special taxing district as being arbitrary and irrational in its boundaries and because of its exemption of certain properties and its disregard of the difference in benefits that might be derived from the district as between one taxpayer and another.

We held in Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, that the Elgin ordinance was not void for procedural defects and that the legislation had been legally enacted. It is noted in that opinion that the contention had been raised that the ordinance creating the special taxing district was invalid because of certain exemptions from the tax for churches, charitable institutions and municipal buildings within the district. We rejected the contention that the ordinance itself was rendered invalid by this announced policy since the ordinance itself specified no such exemptions and deliberate gerrymandering of the district to include traditionally exempt properties such as was said to be questionable in Coryn v. City of Moline (1978), 71 Ill. 2d 194, 202, had not been established as a fact by the record in Ciacco.

We said in Ciacco that while we agreed with the plaintiffs “*** that the State exemption from general taxes for the religious and charitable institutions in question did not dispense them from the special service area tax, we think the neglect of the city taxing authorities to levy on these institutions would not have the effect of rendering the special service area ordinances invalid. In any event, however, we do not consider this contention in this appeal for the reason that it was not alleged in the complaint nor in the plaintiffs’ brief that such exemptions constituted a denial of equal protection and due process.” Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 517.

The present appeal narrows the focus to the question of exemption of properties within a special service area and raises three issues: (1) whether those parcels of realty in a special service area which are exempt by statute from general real estate taxes are liable for a special service area tax; (2) whether there exists an administrative remedy for property owners being taxed in a special service area whereby they can complain to an administrative body that taxing officials have omitted or failed to subject certain parcels in the special service area to the tax; (3) whether, if such administrative remedy exists, it must first be exhausted before seeking judicial relief, even though the taxing officials have already refused to perform their official duty to tax such omitted parcels within the district.

The petitioners, taxpayers within the special service area, allege injury by reason of being assessed a disproportionate amount of tax due to the exemptions and seek a writ of mandamus to force, the taxing authorities to list for taxation and assess a tax against the property heretofore omitted from the tax rolls as being exempt.

The trial judge, after a hearing, dismissed the petition for the writ of mandamus on the ground that the petitioners had not exhausted their administrative remedies. Inasmuch as the trial court dismissed the petition for failure to exhaust administrative remedies, we will comment on that issue first. We believe the trial court erred in resting its decision on the petitioners’ failure to exhaust their administrative remedies, specifically referring to the failure to first file a complaint. This refers to section 108(4) of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 589(4)), which states:

“On complaint in writing that any property described in such complaint is incorrectly assessed, the board shall review the assessment, and correct it, as shall appear to be just, but in no case shall such property be assessed at a higher percentage of fair cash value than the assessed valuation of other property in the assessment district prior to equalization by the board or the Department. ***.”

The petitioners here contend that the quoted reference to filing a complaint — which appears to be the basis of the trial court’s conclusion that an administrative remedy existed which had not been exhausted by the petitioners — is irrelevant under the circumstances of this case. Petitioners contend that the quoted language has nothing to do with a situation in which the authorities deliberately omit the property from the assessment rolls. In the case before us, petitioners point out, there was not either an excessive nor an inadequate assessment, either of which could be reviewed by the board of review and corrected. Rather, there was no assessment at all; therefore, the words of section 108(4) “[o]n complaint in writing that any property described in such complaint is incorrectly assessed ***” do not apply to the situation which obtains in this case — there is nothing for the phrase to operate on because the property has not been assessed at all. As the appellants’ brief says, “[t]hat statutory provision was meant to correct the wrong number and not to supply a number.” Since there never has been an assessment of the property in question (due to the exemption granted it), the petitioners contend the situation is not covered by section 108(4). Thus, the petitioners contend, there is no administrative remedy available to them and therefore mandamus is the proper remedy. Petitioners cite the leading case of People ex rel. Jones v. Webb (1912), 256 Ill. 364, which held that mandamus was the proper remedy to compel the board of review to perform its duty to list and assess omitted property. In that case, a writ of mandamus was sought by a taxpayer to compel the board of review to list certain property for taxation which had not been assessed for the years 1907 through 1910. The defendants demurred to the petition and the trial court sustained the demurrer. Upon appeal to the supreme court, that court reversed the trial court and overruled the demurrer to the petition, saying:

“If the allegations in this petition are true, — and for the purposes of the decision of the questions now before us they are admitted to be true, — we are at a loss to find any possible excuse for the refusal of appellees to proceed to an investigation and- to determine whether the facts stated in the petition are true, and if they be found to be true, in whole or in part, to assess the persons named in the petition upon the fair cash value of their property.” (256 Ill. 364, 377.)

This decision was reaffirmed in People ex rel. Village of Park Forest v. Cullerton (1958), 13 Ill. 2d 575, as to the use of mandamus against the taxing authorities.

The defendants point out that in the Cullerton case the court said:

“We have held that mandamus is the proper remedy to enforce the performance of statutory duties "with respect to the assessment and collection of taxes, where such omission has been specifically directed to the attention of the authorities and a demand for affirmative action has been ignored.” (13 Ill. 2d 575, 580.)

From this statement the defendants argue that the supreme court found that the petitioners had exhausted their administrative remedies and by inference that the court had held that a petition for mandamus to compel the taxing authorities to list and assess deliberately omitted property would not be issued unless the petitioners had exhausted their administrative remedies. Moreover, they argue, based on this wording in the Cullerton opinion, and several other opinions where mention was made of previous attempts to compel the authorities to act, that the reference to such previous resort to the taxing bodies establishes that there is an administrative remedy which must be exhausted before mandamus can issue in such a case.

Neither People ex rel. Jones v. Webb nor People ex rel. Village of Park Forest v. Cullerton make any reference to the filing of a complaint with the board of review as suggested in section 108(4) of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 589(4)). They merely relate that the petitioner had in the Webb case “informed the board of review, and each of the members thereof, of all the facts set forth in table A [a list of omitted property]” (People ex rel. Jones v. Webb (1912), 256 Ill. 364, 369), and in the Cullerton case, reference is merely made to “the failure of administrative efforts to bring about the back-taxing of a certain building.” (People ex rel. Village of Park Forest v. Cullerton (1958), 13 Ill. 2d 575, 576.) The defendants imply that the petitioners in the case at hand made no effort to pursue the matter with the taxing authorities, hence they were derelict in their efforts as compared with the petitioners in Webb and Cullerton. We note, however, that the petition for mandamus in the present case clearly states:

“Respondents, upon being requested by petitioners to assess, levy and extend taxes against the parcels set forth in Exhibit I, refused to do so for the alleged reason that said parcels were and are exempt from the special service tax assessed and levied against properties in Elgin Special Service Area No. Two ***.”

By their motion to dismiss the petition, the defendants have admitted the allegations above set forth, that is, that the petitioners set out the properties which had been omitted and requested the defendants to assess them and that the defendants refused to list and assess said property because, they alleged, it was exempt property. It is clear that if the allegation that the defendants claimed the property was exempt and therefore not subject to assessment is to be taken as true, then no administrative remedy is possible, since the belief by the taxing authority that the property is exempt would preclude it from listing it and assessing it for taxation. The defendants have therefore posed a question of law, having refused to assess on legal grounds and that being so, it would appear that any further administrative remedy would clearly be useless, even if there was an administrative remedy in such case.

We conclude, therefore, that (1) there is no clear administrative remedy to compel the board of review to list and assess deliberately omitted property and (2) in this case, since the taxing authorities — presumably including the named defendants, members of the board of review — assert that the property in question is exempt and hence not taxable property — it would be a clearly useless act on the part of the petitioners to file a complaint with the board of review or the county clerk or the supervisor of assessments in which they would complain of the failure of those authorities to assess the property in question. We conclude, therefore, that the dismissal of the petition for mandamus on the ground of failure to exhaust administrative remedies was in error.

However, the judgment of the trial court can be affirmed on review if found to be correct on other grounds, even if the ground assigned for the court’s decision is erroneous. (Shaw v. Lorenz (1969), 42 Ill. 2d 246; White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234; Sandberg v. American Machining Co. (1975), 31

Ill. App. 3d 449.) The petitioners here seek a writ of mandamus to compel the taxing authorities to act contrary to the legal position they have allegedly taken. In such a situation, the relator must show a clear legal right to have the action taken which he is demanding. In People ex rel. Heydenreich v. Lyons (1940), 374 Ill. 557, 567-68, in declining to issue a writ of mandamus against the relief officer of the city of Chicago on the ground that the clear legal rights of the petitioner as a matter of law had not been established, the court said:

“The question before us is one of law only, and not of fact. Even though one or more relators may be entitled to be placed on the relief roll of the city of Chicago, the prayer of the petition cannot be granted because they do not here claim to be entitled to the benefits of the statute assailed. The writ of mandamus is a summary writ issued from a court of competent jurisdiction commanding the officer or officers to whom it is addressed to perform some public duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform. One who petitions for the writ must show that he has a clear right to the relief which is demanded. [Citation.] This, the relators’ petition for the writ of mandamus failed to do.”

In the case here under consideration, if the duty of the defendants to do the act requested is not clear as a matter of law, the writ should not issue, as indicated in People ex rel. Heydenreich v. Lyons and People ex rel. County of Cook v. Nelson (1932), 349 Ill. 193. In speaking of the writ of mandamus, 52 Am. Jur. 2d Mandamus sec. 64 (1970) says:

“*** To warrant the issuance of the writ, not only must there be a legal right in the relator, but, owing to the extraordinary and drastic character of mandamus and the caution exercised by the courts in awarding it, it is also important that the right sought to be enforced be clear and certain. There must be an immediate right to have the act in question performed, and such right must be specific, well defined, and complete, so as not to admit of any reasonable controversy. ***.”

In the case before the court, the right to have the writ issued may not be clear and evident, even granting that the exhaustion of administrative remedies by filing a complaint with the board of review should not be required. The petitioners’ position is based on several old Illinois cases, one confirmed by the United States Supreme Court, which seem to indicate that a general statute exempting certain religious, charitable or municipal property from “taxation” does not dispense such property from the burden of a special assessment or the assessment imposed by special taxation of contiguous property within an established special taxing district such as Elgin Special Service Area No. 2.

The case most often referred to on the question of exemptions of property from a special taxing district is Illinois Central R.R. Co. v. City of Decatur (1888), 126 Ill. 92, 96. In that case, the railroad had obtained a special charter from the legislature at the time the railroad was incorporated, exempting the railroad from taxation in the following language: “ ‘the said lands and lots shall be exempt from taxation of every description, by and under the laws of this state, until after the same shall have been sold and conveyed by the said trustees as aforesaid.’ ” The city of Decatur enacted an ordinance for the paving of a certain street abutting the railroad and the railroad was assessed a portion of the cost of said improvement. The railroad objected to the assessment, contending that its charter exempted it from all taxation of any kind, including the tax imposed for the street improvement. The county court rejected the contention and held that the railroad was subject to the special tax in question. Upon appeal, the Illinois Supreme Court affirmed the trial court, saying:

“It has many times been held by this court ‘that exemption from taxation does not exempt from special assessments.’ [Citation.] Therefore, if the improvement in the present case had been made by special assessment, appellant’s property would not be relieved, by the exemption of its charter, from its just proportion of the burden of such assessment. Is there any such difference between special assessment and special taxation of contiguous property, as those terms are used in section 9 of article 9 of our constitution, that the general word taxation should be held to include the latter and not the former? It is the settled doctrine of this Court, that special assessments are not included within the meaning of the word taxation. The question presented for our consideration is whether the same doctrine should also be applied to special taxation of contiguous property.” 126 Ill. 92, 95-96.

The court then went on to decide, on the basis of past cases, that special taxation of contiguous property is in the same category as special assessments in not being exempt from ordinary taxation.

This case was appealed to the Supreme Court of the United States and that court in Illinois Central R.R. Co. v. City of Decatur (1893), 147 U.S. 190, 37 L. Ed. 132, 13 S. Ct. 293, affirmed the judgment of the Illinois Supreme Court, making no distinction on this point as between a special assessment and special taxation of contiguous property and held that as to that point there was no difference between the Illinois constitutions of 1848 and 1870.

It seems clear, based on these cases and other more recent cases such as City of Waukegan v. Drobnick (1964), 31 Ill. 2d 580, that special assessments and special taxation are not considered “revenue” in the same sense as revenue under the Revenue Act. Thus, it appears that the dispensation from “taxation” of religious, governmental and charitable properties set out in the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, pars. 500.2, 500.6 and 500.7) does not necessarily exempt those same properties from a special service area tax for improvements. This, however, is not the same as saying that a local government having home rule powers may not exempt such property from its special service area on grounds of public policy, as does the State. In Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, 516-17, we said:

“While we agree with the plaintiffs that the State exemption from general taxes for the religious and charitable institutions in question did not dispense them from the special service area tax, we think the neglect of the city taxing authorities to levy on these institutions would not have the effect of rendering the special service area ordinances invalid.”

We did not, however, decide the question whether the exemption, if contained in the ordinance — which it was not — would render the ordinance invalid, saying:

“In any event, however, we do not consider this contention in this appeal for the reason that it was not alleged in the complaint nor in the plaintiffs’ brief that such exemptions constituted a denial of equal protection and due process.” 85 Ill. App. 3d 507, 517.

Nor is the court asked in the present case to declare the Elgin Special Service Area ordinances invalid, whether for denial of due process or for any other reason. On the contrary, this court is requested to uphold the ordinances by interpreting them as imposing a tax on the property which the city council has interpreted as being exempt from such tax and to require the taxing authorities to impose the special service area tax on these properties, heretofore treated as exempt. The ordinances complained of were adopted in 1977, 1978, 1979 and 1980. They were to levy and assess taxes for special services in Elgin Special Service Area No. 2 for each of the years mentioned. Those tax levy ordinances did not specifically provide for any exemptions. However, the ordinances for 1977 and 1978 provided in part:

“Section 3. That the full sums be and the same are hereby levied upon all taxable property as defined in the Revenue Act of 1939 in the City of Elgin Special Service Area Number Two * * * n

The tax levy ordinances adopted in 1978 and 1979 provided in part:

“Section 2. That there be and there is hereby levied upon all taxable property within the City of Elgin Service Area Number Two, subject to taxation for the year_***.”

Both ordinances go on to recite that tax levied is pursuant to certain sections of the Blinois Constitution and Public Act 78 — 901, which is entitled “An Act to provide the manner of levying or imposing taxes for the provision of special services to areas within the boundaries of home rule units and non-home rule municipalities and counties.” This enabling statute (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.) provides that a tax to provide special services is to be levied and imposed in accordance with the Revenue Act of 1939. It provides as follows:

“Sec. 10. If a property tax is levied the tax shall be extended *** in the manner provided by the Revenue Act of 1939 based on assessed values as established pursuant to the Revenue Act of 1939. ***.” Ill. Rev. Stat. 1977, ch. 120, par. 1310.

The Revenue Act of 1939 sets forth certain types of property which are exempt from taxation. (Ill. Rev. Stat. 1977, ch. 120, pars. 500.1 through par. 500.23.) Thus, that act exempts among other property that which is used for churches (par. 500.2), property of political subdivision such as a city (par. 500.6), public grounds owned by political subdivision (par. 500.9), and property of charitable institutions such as the Y.W.C.A. here involved (par. 500.7).

Thus, while the tax levy ordinances here involved did not specifically provide for any exemptions, the compliance with the enabling statute results effectively in exemption of those properties exempt under the Revenue Act of 1939.

The petition does allege a due process violation if the ordinance is not implemented by mandamus as it requests, since if the exemption continues the petitioners will pay a disproportionate amount of the levy and will therefore not enjoy the equal protection of the law.

However, not all questions of due process or equal protection of the laws can be resolved by a writ of mandamus, for these questions often involve matters of judgment and discretion, not matters which are clear and evident, as is necessary where a writ of manda mus is issued. In the present ease, the question is whether it is clear and evident that the city of Elgin does not have the authority under its home rule powers to exempt within a special service area the kinds of property the State exempts from taxation under its general revenue laws. That this proposition would have been answered in the negative previous to the enactment of the home rule provisions of the 1970 Constitution seems likely from a reading of the older cases such as Illinois Central R.R. Co. v. City of Decatur and, in the case of special assessments, under the 1964 decision in City of Waukegan v. Drobnick. That, however, does not settle the question for we are now dealing with the home rule provisions of the 1970 Constitution which give much broader powers to local governments than under the previous constitution. Moreover, the home rule provisions of article VII of the 1970 Constitution are further implemented by the enabling legislation contained in section 1 et seq. of “An Act to provide the manner of levying or imposing taxes for the provision of special services to areas ***” (Ill. Rev. Stat. 1981, ch. 120, par. 1301 et seq.). Whereas the provisions of the 1870 Constitution gave the taxing powers of local governments very limited scope, granting only such taxing authority as was delegated to them by the General Assembly, the 1970 Constitution under its home rule provisions is much broader as to taxing authority of local governments. The 1870 Constitution provided that:

“The general assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. ***.” (111. Const. 1870, art. IX, sec. 9.)

However, under the home rule provisions of the 1970 Constitution, a home rule unit (such as the city of Elgin) may “exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power *** to tax; ***.” Ill. Const. 1970, art. VII, sec. 6(a).

It is further provided in the 1970 Constitution:

“The General Assembly may not deny or limit the power of home rule units (1) to make local improvements by special assessment *** (2) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services.” Ill. Const. 1970, art. VII, sec. 6(1).

Pursuant to the latter paragraph, enabling legislation was enacted (Ill. Rev. Stat. 1981, ch. 120, par. 1301 et seq.). This legislation nowhere contains any prohibition against granting an exemption for charitable, religious and municipally owned property within the special service area. Moreover, the 1970 Constitution, article VII, section 6(m), states: “Powers and functions of home rule units shall be construed liberally.” Combining the mandate for liberal interpretation with the wording of article VII, section 6(2) stating that the General Assembly “may not deny or limit the power of home rule units *** (2) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services in those areas and for the payment of debt incurred in order to provide those special services” (emphasis added), it seems to us that local governments have considerable discretion under the 1970 Constitution and the subsequent enabling legislation as to the manner in which they shall provide for taxes in special service areas. Construing the various provisions liberally, we feel it is far from clear that the municipal authorities could not legally exempt the traditionally exempt properties within their special service area, as does the State itself. The city council is the governing body (by statute) of the special service area, and its decisions to exempt the properties in question could reasonably be interpreted by the assessor and the board of review as being within the city’s discretion. As we noted, it is not as if the taxpayer was claiming an exemption — the question is whether the exemption is so clearly unlawful and outside the authority of the city to grant that the taxing authority should be compelled by the courts to reverse it and to assess the property against the city’s wishes and, indeed, contrary to the expectations of the residents of the district who relied on the city’s promises and did not vote against the creation of the district, believing they were exempt.

We conclude there is sufficient leeway in the home rule legislation treating of the taxing power of municipalities, and especially that dealing with special tax districts, to hold that the writ of mandamus should not issue in this case.

We therefore affirm the trial court’s judgment, although for different reasons than the court expressed. The judgment of the circuit court of Kane County is affirmed.

Judgment affirmed.

HOPF and VAN DEUSEN, JJ., concur.