text:
    Emmett R. Conness, Plaintiff-Appellant, v. Robert E. Conness, et al., Defendants-Appellees.
    Gen. No. 67-67.
    Third District.
    April 26, 1968.

      Daniel McMullen, of Streator, for appellant.
    Edward X. Rashid, of Streator, for appellees.
   STOUDER, J.

Emmett Conness, Plaintiff-Appellant, brought this equitable action in the Circuit Court of LaSalle County against his cousin, Robert Conness, Defendant-Appellee, seeking to set aside and vacate a notice of termination of tenancy. In essence the action is for specific performance the complaint alleging the parties entered into an oral agreement by the terms of which the defendant agreed that the plaintiff could farm as tenant for the term of his lifetime, a certain eighty-acre tract of farmland owned by defendant. After hearing, the Court dismissed the complaint for want of equity, and it is from such decree that plaintiff appeals.

The facts are largely undisputed. In 1947, an uncle of the parties died in Arizona owning one hundred sixty (160) acres of farmland in LaSalle County. The farm had been in the Conness family for many years. Problems arose in the ancillary administration of the estate as to whether the farm could be sold and as a result a trust procedure was employed to effect the sale, the defendant being one of the trustees empowered to conduct the sale at public auction. Prior to the sale the plaintiff and defendant conversed on several occasions concerning the possible purchase of the farm in order that it stay in the family. Each party indicated he was financially unable to handle the purchase of the entire farm but with the cooperation of defendant’s mother it was agreed that plaintiff should bid up to $350 per acre for the entire tract, and if plaintiff were the successful bidder each would pay one-half of the purchase price and plaintiff would become the owner of the west eighty acres and defendant the owner of the east eighty acres. According to the testimony of plaintiff it was during these conversations with defendant during which no other person was present, that defendant also agreed that plaintiff, could farm the east eighty acres as tenant for the rest of his life or as long as he wanted to do so. Defendant denied any such agreement and whether such oral agreement was or was not made during these conversations is substantially the only disputed issue in this case.

The farm was purchased at public sale for $346 per acre, title thereto being taken in the name of plaintiff and defendant’s mother. Thereafter plaintiff borrowed most of the money necessary for him to pay for his half of the farm and deeds were executed conveying the west eighty acres to plaintiff and the east eighty acres to defendant. Plaintiff, having been a tenant on the entire farm prior thereto, commenced farming the east eighty as defendant’s tenant on March 1, 1948. He continued farming his own eighty acres and that of the defendant until February 28, 1967, the effective date of the termination of tenancy notice. Such notice did not state any cause or reason for the termination of the tenancy.

By stipulation, the details of the transactions which had taken place between the parties during the nineteen years of the tenancy were presented to the court. From such stipulation it appears that plaintiff paid most of the costs of producing the crops, that plaintiff had laid about one hundred fifty (150) feet of tile on the east eighty, that plaintiff had moved a house and barn located thereon and thereafter prepared the area for tillage and that the parties had shared the net proceeds equally.

In seeking to reverse the decree of the trial court, plaintiff contends the evidence establishes a parol agreement between the parties whereby he was entitled as tenant to farm the land of defendant for plaintiff’s lifetime and that his performance under such parol contract was sufficient to remove the bar of the statute of frauds. Chapter 59, sections 1 and 2 (Ill Rev Stats 1965). Since it is the purpose of the statute of frauds to prevent fraud or injustice it is appropriate to apply equitable principles when the interposition of the statute would produce a contrary result. Anastaplo v. Radford, 14 Ill2d 526, 153 NE2d 37. The burden is upon the party seeking the application of equitable principles not only to establish the terms and conditions of the parol agreement but also to show that enforcement of the parol agreement is required to prevent fraud or injustice. Flannery v. Woolverton, 329 Ill 424, 160 NE 762.

In the instant case, the question of whether there was or was not a parol agreement concerning plaintiff’s right to farm the land for the rest of his life is disputed. The evidence relating thereto is based on the recollection of the parties concerning conversations which had taken place nearly twenty years earlier. Although the deeds and conveyances support a conclusion that the parties did make an agreement concerning the purchase and division of the farm neither such agreement nor plaintiff’s subsequent tenancy of the farm necessarily infer the additional agreement that such tenancy was to be for plaintiff’s life. The fact that the deed to the east eighty acres executed at the time plaintiff commenced farming as a tenant of defendant did not by reservation or otherwise refer to such right of plaintiff is significant. The evidence being conflicting we believe the conclusion by the trial court that there was no oral agreement is supported by ample evidence.

Even if it were proven that the parol agreement relied upon by plaintiff had been made, the question remains do equitable considerations require enforcement of that parol agreement to avoid or prevent fraud or injustice ? In our opinion the facts do not so require. The facts do not show that plaintiff in reliance upon the purported promise changed his position to his disadvantage, detriment or loss. If the oral promise be regarded as an inducement relied upon by plaintiff in the purchase of his own eighty acres and the borrowing of money necessary therefor whatever hardship or disadvantage which then existed no longer exists. It is not contended that the compensation which plaintiff received for his work as tenant during the nineteen years is unreasonable, minimal or inadequate. The expenditures during the period of the tenancy were for the mutual advantage of both parties. Indeed from the evidence it can be inferred that the only basis of plaintiff’s claim is that the loss of his rights as tenant will result in the loss of some future advantage dependent upon future performance of the agreement by both parties. Such circumstances do not warrant the conclusion that to deny enforcement of the contract will result in fraud or injustice to plaintiff. For the foregoing reasons the decree of the Circuit Court of LaSalle County is affirmed.

Decree affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry E. Belville, Defendant-Appellant.
    Gen. No. 67-102.
    Third District.
    April 26, 1968.
    William J. Bunch, of Chicago, for appellant.
    Bernard Oltman, State’s Attorney of Tazewell County, of Pekin, for appellee.
   STOUDER, J.

Defendant, Harry E. Belville, under indictment for murder, pleaded guilty to a charge of involuntary manslaughter. The guilty plea was accepted by the Circuit Court of Tazewell County on November 1, 1962, defendant was found guilty by the court and sentenced to a term of from ten to twenty years in the state penitentiary.

At this hearing defendant was represented by private counsel, the consequences of his plea of guilty were explained by the court and he was asked whether he wished to persist in his plea and whether he was satisfied with his counsel. Defendant indicated that he did wish to persist in his plea and that he thought the services of his attorney had been satisfactory.

On August 13, 1964, defendant filed a pro se petition for a writ of error coram nobis in which he asked for counsel to assist him and in which he represented that any statements made by him at his hearing were made on advice of counsel whom he now says was not acting in his interest, that he was induced to enter his guilty plea on advice of counsel and the promise of the latter that his confinement in jail would not exceed three and one-half years and that defendant was in fact incompetent to enter a plea of guilty at the time of the hearing and that the facts pertaining to his incompetence were known to his attorney but not presented to the court. This petition was poorly written, contained many misspelled words and its meaning or purport was difficult to ascertain. The public defender of Tazewell County was appointed to represent defendant with respect to this petition.

On September 10, 1964, the People moved to dismiss defendant’s petition on the grounds that the writ of coram nobis has been abolished, that even if such writ had not been abolished defendant did not allege facts sufficient to warrant such writ, that if the petition be taken as a petition for a post-conviction hearing it did not set forth any substantial denial of Constitutional rights, and finally that the Circuit Court lacked jurisdiction to consider the matter of defendant’s mental condition.

At the hearing on the motion to dismiss, the public defender stated that he had read the petition, had conferred with defendant’s trial counsel and believed the petition to be defective in form and in substance and that these defects could not be cured by amendment. He further stated that from an examination of the record of the trial, he could find nothing which would warrant resisting the motion of the People. The Court then dismissed the petition from which action the defendant appealed to the Supreme Court of Illinois. The Supreme Court appointed new counsel to represent defendant but later transferred the appeal to this court.

We believe that post-conviction proceedings under either section 72, chapter 110, Ill Rev Stats 1967 or section 122, chapter 38, Ill Rev Stats 1967, are an integral part of the review procedure. Even though such proceedings are commenced in the trial court the right of an indigent defendant to representation by counsel is the same as in other cases where review of a conviction is sought.

At the outset we are constrained to say that we are bound by the decision of the Supreme Court in Anders v. California, 386 US 738, even though we may not agree with that decision in all particulars. For the purpose of this decision, suffice it to say that court appointed counsel must do somewhat more in the way of representing a defendant in a case of this kind than the public defender did here. In the instant case defendant, by his petition, complained of the duplicity of his trial counsel, in effect conceded that the record would show no error because he acceded to the advice of trial counsel which he did not realize at the time to be not in his best interest, intimates that he was incompetent to understand the nature of this advice and admits that he does not know how to properly submit this to the court. For counsel, under these circumstances, to agree that defendant did not know how to present his petition and to bolster this agreement by reference to the very things of which defendant complains, is, to say the least, of no great assistance to defendant.

The minimum effort to be made in a case of this type would require that counsel communicate in some way with defendant in an attempt to ascertain the existence of any facts upon which relief could be based and whether these facts could be presented to the court in any form. Under the circumstances revealed by the record we do not believe it can be said that in fact defendant was represented by counsel in connection with his post-conviction petition.

Defendant also argues in this appeal that his petition was sufficient to require a hearing thereon. However, it may be concluded from the foregoing that the state of the record is inadequate to enable us to properly consider the question and accordingly we make no decision concerning such sufficiency.

For the foregoing reasons the judgment of the Circuit Court of Tazewell County striking the petition is reversed and the cause is remanded for further proceedings consistent with the views herein expressed. The appointment of the attorney appearing for defendant in this proceeding is continued for the purpose of representing defendant in such further proceedings as may be appropriate.

Judgment reversed and remanded with directions.

ALLOY, P. J. and SCHEINEMAN, J., concur.


author: JONES, J.

text:
    Lewis Heyen, Administrator of the Estate of Dennis Lee Wethington, Deceased, Plaintiff-Appellant, v. Raymond Willis, et al., Defendants. Raymond Willis and Wilda Willis, Defendants-Appellees.
    Gen. No. 10,914.
    Fourth District.
    April 29, 1968.

      Samuel S. Blane, of Petersburg, and Stuart Dobbs, Denby & Dobbs, of Carlinville, for appellant.
    R. G. Heckenkamp and W. J. Simhauser, of Springfield, for appellees.
   JONES, J.

This appeal presents the question of the liability of a landowner for injury and damage caused by cattle which have strayed from land under lease or license to the owner and keeper of the cattle. Plaintiff-administrator brought an action for wrongful death, property damage and funeral expenses charging the landowner with (1) being an “owner or keeper” within the purview of section 1 of the Animal Act, Ill Rev Stats 1965, c 8, and (2) negligence in leasing land for pasture purposes when the fences were insufficient to contain cattle. The owner and keeper of the cattle was joined as a defendant in a separate count for wrongful death for a violation of the Animal Act and his liability is not questioned in this appeal. The circuit court granted defendant landowner’s motion for summary judgment from which plaintiff appeals.

The pertinent facts presented by the pleadings, affidavits and depositions show that decedent, Dennis Lee Wethington, died of injuries received when the car he was driving went out of control and overturned as he was attempting to avoid cattle astray upon the highway.

The cattle were the sole property and in the sole care of defendant Lyons. They escaped from a pasture owned by the defendants Willis and placed in possession of Lyons under a lease or license. The pasture fences were inadequate to restrain cattle but by the terms of the agreement for possession were to be repaired by Lyons. Neither Mr. nor Mrs. Willis ever made an inspection of the entire fence before or after placing Lyons in possession and neither inspected the repairs made. For the purpose of this appeal we must assume that after the repairs were made by Lyons the fence remained inadequate to restrain cattle. The landowners owned no interest in the cattle and had no responsibility for their care or maintenance.

Plaintiff contends that his amended complaint contains sufficient allegations to show a legal duty owed by the defendant-landowners to his decedent and that he should be permitted to submit the facts to a jury for a determination of whether there has been a negligent breach of that duty.

Illinois Revised Statutes, chapter 8, section 1, AN ACT in relation to domestic animals running at large within the State of Illinois, provides:

“Hereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese, to run at large in the State of Illinois: Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.”

Plaintiff reasons that since the landowners knew the pasture was to be used for grazing cattle and had the right to require the fences to be built and maintained with reasonable care, it is for a jury to determine whether or not they are a “keeper” within the statute. As authority for his position plaintiff cites Stevens v. People, 67 Ill 587, and an annotation on “keeper,” 15 ALR 1202, et seq. However, these authorities are concerned with the definition of “keeper” within the scope of gaming and criminal violations and we deem them not apt.

The Animal Act does not define “keeper” and in the absence of a contrary statutory definition, words used in the statute are used in their common dictionary meaning, Bowes v. City of Chicago, 3 Ill2d 175, 120 NE2d 15; or in their popularly understood meaning (Bowman v. Armour & Co., 17 Ill2d 43, 52, 160 NE2d 753). Black’s Law Dictionary, 4th ed, defines keeper as “A custodian, manager, or superintendent; one who has the care, custody, or management of any thing or place; one who has or holds possession of anything.” 3 CJS, Animals, § 165, states that the owner of an animal is the person to whom it belongs, and its keeper is the one who harbors or protects it. 4 Am Jur2d, Animals, § 92, states, “. . . a person becomes the ‘keeper’ of an animal only when, either with or without the owner’s permission, he undertakes to manage, control, or care for it as the owners generally of such animals are accustomed to do.”

The cases we have found which construe or define a keeper of animals do so in terms of management, custody, care or control. Blakley v. Glass, 342 Ill App 90, 95 NE2d 128, (1950) is similar in its facts to this case. There the plaintiff sued defendant landowner Glass for personal injuries and property damage arising out of a collision between plaintiff’s automobile and a horse that had escaped from defendant’s pasture. The horse was purchased by another defendant (Hopkins) and given to his 13-year-old daughter, Jane. The defendant Glass’s daughter, Barbara, was a friend of Jane’s and on the day in question Jane rode the horse to the Glass place and put him in the pasture with Barbara’s horse, from which pasture he escaped to the highway, apparently through a broken fence. Plaintiff filed a complaint charging general and specific negligence but at the trial and in his brief and argument before the appellate court relied upon section 1 of the Animal Act. The trial court directed a verdict for the defendant landowner and the appellate court affirmed holding there was no liability-under the statute, stating, “There is nothing to show that Glass in any way controlled the keeping of the horse. No act of negligence on his part is shown. . . . Further, it is our opinion that Glass was not the keeper of the horse, as that term is used in the statute in question. Something more than the fact that the defendant Jane Hopkins visited her friend Barbara Glass and placed her horse in the Glass pasture is required to fix the responsibility of a keeper on Glass. Hancock v. Finch, 126 Conn 121, 9 A2d 811 (1939); Raymond v. Bujold, 89 NH 380, 199 A 91 (1938).”

The Wisconsin case of Reuter v. Swarthout, 182 Wis 453,196 NW 847, involved a statute placing liability upon an owner or keeper for damage caused by any described animal suffered to run at large. A landowner had leased his farm and stock, including a bull in question, to a tenant, who with the owner’s knowledge allowed the bull to run at large with the result that the bull damaged property in another’s field. The court held that the owner of the bull was not the keeper thereof, saying at page 456:

“. . . defendant had rented his place and stock, including the bull, to a renter who had exclusive possession and control of the same under his lease. Under these facts there can be no doubt but that ■ the renter was the ‘keeper’ of the bull. It will be noted that the statute fixes the liability on the owner or keeper who shall suffer the proscribed animal to run at large, and not upon the owner and keeper of the animal. . . . The tenant permitted the bull to run at large. The owner did not do so, as he did not have control of the animal. . . . The statute should not be extended beyond its reasonable scope to punish one who is not in control of the animal.”

To be a keeper of animals as that term is used in the statute requires more than the passive ownership of grazing lands. In this case the landowners owned no interest in the cattle, were not responsible for their care and had no right to their custody or control and accordingly, cannot be held to be a “keeper” within the meaning of the Animal Act. To hold otherwise would ascribe a meaning to a plainly worded statute other than that intended by the Legislature.

Liability under the Animal Act aside, plaintiff asserts that in leasing premises to an owner or keeper of animals, lessors have a common-law duty to guard against injury or damage to strangers to the lease caused by estrays which escape from the premises as a result of a known defect on the premises at the time of the lease, and that a jury question exists on the issue of whether there has been a negligent breach of that duty. Lacking express case authority for this rule, plaintiff seeks to give it credence by drawing analogies to well established tort rules. We grant that plaintiff’s cases are good authority in the areas of their decision, yet we consider that they fail to show a common-law duty upon the part of the defendant-landowners in this case. To the contrary are the cases in which the alleged landowner’s duty has been placed in issue. Blakley v. Glass, supra, Reuter v. Swarthout, supra.

Plaintiff urges that because of changing social conditions a farmer today does have a duty to fence in livestock and calls upon the court to overrule the “early common-law cases” that may stand as an impediment to liability in this case. But this request has been met, for the early Illinois common-law cases have been set aside and the duty to fence in livestock has been established. Prior to the enactment of the Animal Act there was no liability in Illinois for injury or damage caused by an animal running at large. The burden was placed on the landowner to fence his land against the depredation of animals. However, because of changing social conditions as assigned by plaintiff, that law was changed by the legislature when they first adopted the Animal Act in 1871. But in making a change, they limited the liability for damage by estrays to their owner or keeper. Bulpit v. Matthews, 145 Ill 345, 34 NE 525, and McKee v. Trisler, 311 Ill 536, 143 NE 69, discuss the common law and the changing conditions leading to adoption of the Animal Act.

Plaintiff finally asks this court to lay aside any hypothetical or real obstacle caused by considering this case as a livestock at large problem asserting that the case resolves itself around the duty of the owner of leased premises to strangers to the lease. He states that such duty does exist where premises are leased with a known defective condition or where the owner agrees to repair, as in the cases of Marcovitz v. Hergenrether, 302 Ill 162, 134 NE 85, and Wagner v. Kepler, 411 Ill 368, 104 NE 231. There is no question that this is the law of Illinois as represented by these and many other cases. However, we cannot, as plaintiff suggests, lay aside any consideration that this case is a livestock at large problem for plainly it is a livestock at large problem and cannot be considered as anything else. The likelihood of injury or damage from estrays, and the attendant duty to use care to prevent such injury or damage, lies not in the place where animals may be kept but in their propensity to roam, their wanderlust. Thus, the duty to guard against injury or damage by estrays is cast by law upon the owner or keeper of the animals, and liability for injury or damage caused by them must be predicated upon the Animal Act. No common-law duty exists upon the part of the landowners in this case and the question of their negligence in placing their premises in the possession of Lyons for the grazing of cattle should not be submitted to a jury.

The circuit court correctly entered a summary judgment in favor of defendant-landowners and that judgment should be affirmed.

Affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: SCHEINEMAN, J.

text:
    Chicago and North Western Railway Company, a Corporation, Plaintiff-Appellant, v. Toledo, Peoria & Western Railroad Company, a Corporation, J. Russell Coulter, et al., Defendants-Appellees, and Robert J. Strand and Local Lodge No. 926 of the Brotherhood of Locomotive Firemen and Enginemen, and John W. Towles and Local Lodge No. 1084 of the Brotherhood of Railroad Trainmen, Intervenors-Appellees. Robert J. Strand and Local Lodge No. 926 of the Brotherhood of Locomotive Firemen and Enginemen and John W. Towles and Local Lodge No. 1084 of the Brotherhood of Railroad Trainmen, Counter-Claimants, v. Chicago and North Western Railway Company, a Corporation, and Toledo, Peoria & Western Railroad Company, a Corporation, Counter-Defendants.
    Gen. No. 67-42.
    Third District.
    April 29, 1968.

      Swain, Johnson & Card, of Peoria, and Richard M. Freeman, Robert W. Russell, and James P. Daley, of Chicago, for appellant.
    Heiss, Day & Bennett and C. D. Hawley, of Cleveland, Ohio, Louis F. Knoblock, Cassidy, Cassidy, Quinn & Lindholm, of Peoria, and Elson, Lassers & Wolff, of Chicago, for appellees.
   SCHEINEMAN, J.

In the vicinity of Peoria, Illinois, the Chicago and North Western Railway and the Toledo, Peoria & Western Railroad have main line tracks which traverse upon or along a large area of land suitable for industrial use. Much of this space was owned by TP&W. The main lines are parallel for some distance and at Sommer are in close proximity. TP&W runs generally east and west from Indiana to Iowa while the North Western runs generally north and south.

There were a few industrial users in this area in 1956, which were served by one of these railroads upon side tracks or spurs. However, most of the acreage was vacant and producing no revenue or business for the owner.

At that time there was in Peoria a local railroad known as Peoria and Pekin Union (P&PU) which did switching to transfer freight cars from each of these main lines to the other. For this service a fee was charged but, besides the cost, there was the disadvantage that a substantial delay occurred in the delivery of cars to their ultimate destination.

The management of TP&W desired to improve these conditions. Mr. Coulter, its president, had a meeting with Mr. Fitzpatrick, president of C&NW and they looked over the situation.

Among Mr. Coulter’s suggestions were these: At Sommer a crossover track and siding could be built at comparatively small cost thereby permitting direct transfer of cars between the two railroads. Also they could enter into a mutual trackage agreement whereby each could operate on the tracks of the other, including small portions of main line and the sidings or spurs of both companies, thereby avoiding the large expense of duplicate trackage.

It was known that shippers deemed it highly desirable to have two-line haul railroads serve their plants as this produced a number of advantages.

Mr. Fitzpatrick saw merit in the proposals. It was then agreed that negotiations should proceed to the end that a mutual trackage contract be prepared. There followed extensive negotiations including personal interviews, telephone conversations, and correspondence. Eventually a written contract was executed dated July 25, 1957, and introduced in evidence as Plaintiff’s Exhibit 1 (PX1).

The contract with map attached specified 5.9 miles of C&NW main line (called North Western Segment) over which TP&W could operate, and 4 miles of TP&W main line (called Toledo Segment) plus the extension to Kingston Lake, on which C&NW could operate. Obligations of maintenance of side tracks and new construction were set forth, also liability for injuries or damages.

The two companies then filed a joint application to the Interstate Commerce Commission for approval of their proposal. The Commission heard evidence and entered an order which approved the joint trackage use and also abolished the switching contract of P&PU.

The contract and the Commission order contained authority for each railroad to operate over the other’s specified tracks in either of two methods, i. e., “either directly with its own engines and crews or through an arrangement with the other party upon such terms and conditions as may be mutually agreed upon.”

The industrial sites with double railroad service were nationally advertised and produced the desired result. New industries moved in and provided freight for the companies. One had already started to build a coal burning electric plant which would eventually require a very large annual tonnage. Later Archer-Daniels-Midland Co. (ADM) built its plant and required movement of a large number of freight cars. There were other plants that became established in the area. For the time being the railroads had an operating agreement, introduced in evidence as Defendant’s Exhibit 1 (DX1).

During the period of negotiations officials of operating unions of TP&W became alarmed over the possibility that the North Western would operate on their lines with North Western engines and crews. Protests were made and they were going to resist the application to the Interstate Commerce Commission. Mr. Coulter assured them orally and by letter that the railroads were not going to operate on each other’s tracks with their own engines and crews. With this understanding the unions then approved the application before the Commission and the Commission in its order found that the employees of the railroads were not adversely affected by the proposed plan.

The cooperation of the managements of the two railroads had resulted in profitable additions to the business of both. Then came a time in which cordial relations ceased and disputes arose. In March 1962 C&NW notified TP&W it was going to serve ADM with its own engines and crews, and cease turning their cars over to TP&W for switching. However, when it undertook to act, it was prevented by direct action of TP&W employees and officials. Thereafter it filed suit in Federal District Court asking for enforcement of its contractual rights. The suit was dismissed by the Circuit Court of Appeals for lack of jurisdiction, on the ground there was no Federal question involved. This present suit was then filed in the Circuit Court of Peoria County to obtain specific performance of the contract and to enjoin interference by the defendant. The Labor Unions were given leave to intervene and they filed a counterclaim asking for an injunction to restrain the plaintiff from operating its engines and crews on the TP&W tracks.

The cause was heard in Circuit Court and resulted in the decree for the defendant, dismissing plaintiff’s complaint and also the counterclaim. This appeal was then perfected and the Unions filed a cross-complaint.

The plaintiff contends the decree is contrary to the law and the evidence, that the trial court ruled incorrectly on admissibility of evidence and that it improperly changed a complete contract that was not ambiguous.

The law relied upon is that when parties enter into a contract that is complete and unambiguous, oral agreements not incorporated therein are regarded as rejected and parole testimony is not admissible to show additional agreements. Robbs v. Illinois Rural Rehabilitation Corp., 313 Ill App 418, 40 NE2d 549; and others.

The defense relies upon certain exceptions to the rule, i. e., that previous and contemporary transactions and facts may be considered when there is ambiguity in the contract. Olson v. Rossetter, 399 Ill 232, 77 NE 2d 652.

“Whether the written contract was intended to be the complete and final agreement, must be determined from the language of the contract and the circumstances of the case. If it is silent in essential particulars, parole evidence is admissible to establish the missing parts.” Stevens v. Fanning, 59 Ill App2d 285, 207 NE2d 136.

It was this principle which the chancellor invoked in the admission of evidence of prior negotiations both oral and written. We must examine the whole of the written agreement and observe whether any essential parts are omitted or left ambiguous.

For the most part, the contract indicates a complete and detailed agreement by both parties cooperating for their mutual advantage. Then we come to several paragraphs in which there occurs a repeated phrase as to alternative methods of serving industry presently or hereafter located within the joint industrial area: 1— directly with its own engines and crews, or 2 — through an operating arrangement with the other party “as may be mutually agreed upon.”

It is clear as to the second alternative, this contract contemplates a separate agreement not set forth in it, and one upon which it assumes the parties will agree or have agreed.

The claim of plaintiff that its exhibit (PX1) is complete in itself runs afoul of its provisions referring specifically to a separate operating agreement. This is not the only difficulty. The alternative provision for direct service to industries by each company using its own engines and crews, fails to state that either party may put this into effect unilaterally without the consent of the other, and on the other hand, fails to state that this also is a matter for mutual agreement. Hence this contract cannot be regarded as complete and covering all matters to be agreed upon.

The plaintiff has assumed it had the unilateral right to put into effect a moving of its cars with its own engines and crews over defendant’s tracks. There was in existence a separate operating agreement which provided for the second alternative method, especially providing that the defendant could serve the electric plant on the C&NW Segment. Defendant had also been serving the ADM plant from the time of its origin to the date of this contract.

The contract further provided that each party should retain any part of the tariff payable to it as a line-haul railroad and would pay the other party a flat fee of $5 per car for switching.

The evidence does not disclose that any difficulty arose, or that any complaint had been made. Yet in April 1962 plaintiff notified defendant it was going to furnish its own direct switching service to the ADM plant, using defendant’s tracks.

We are unable to find any writing in PX1 which indicates the right to change the operation by unilateral action. Since everything else but the method of operation has been mutually agreed upon, it would seem reasonable that this would also be subject to mutual agreement. But, as noted, there is no wording to that effect. The contract is silent in this important particular.

Its importance is shown in the evidence. A number of experienced railroad men testified to the complex difficulties which would arise if both parties did switching at the same time and place. Injuries and damages could result. The switch crew of defendant serving ADM had worked an average of five hours a day, six days a week and sometimes as high as seven hours. The testimony of experienced railroad men was that for another switch crew to operate the same place, it would have to be at different times. And if plaintiff did switching after the defendant had finished for the day, cars already spotted as required by the shipper would have to be moved, thus interfering with the loading schedule of the shipper.

Mr. Coulter also testified that during negotiations, Mr. Fitzpatrick repeatedly expressed the opinion “it would be a poor operation and procedure to have both engines and crews in the same area at the same time and it would be an impossible situation.” This testimony is uncontradicted. Mr. Fitzpatrick did not appear as a witness.

In view of this difficulty established by a preponderance of the evidence we must conclude PX1 is not a complete contract. Essential particulars are not included. In this situation it was proper to admit the evidence as to the prior negotiations. Meyer v. Sharp, 341 Ill App 431, 435, 94 NE2d 510; Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 242 Ill 88, 94, 89 NE 723; Stevens v. Fanning, 59 Ill App2d 285, 207 NE2d 136. The operating agreement and letters pertaining to the arrangement are all parts of the same transaction and must be construed together. 12 Am Jur, “Contracts,” § 246.

The Interstate Commerce Commission order approving the contract adds nothing to it. Looking to the future, the parties considered it might be desirable sometime to change their operating methods. Naturally they asked for and obtained approval of both methods in this order, to avoid having to appear before the Commission again on the same subject.

The testimony and exhibits which the Court admitted over objection are too voluminous to be set forth in detail in this opinion. In summary, about the time the presidents of the two companies were agreeing that switching operations by both at the same time and place were not possible, they discussed an operating agreement orally, later referred to in correspondence, which covered the switching problem. Still later this was substantially included in the executed written contract referred to as DX1 dated April 10, 1959. This is nearly two years after the date of PX1 which is the principal subject of this suit, and the later contract must be regarded as implementing the provisions therein for an operating agreement “upon such terms and conditions as may be mutually agreed upon.”

Thus the plaintiff is arguing that its exhibit PX1 is complete and cannot be interpreted with the aid of any other evidence whereas it shows on its face that it is not complete and does not cover essential particulars.

While some of the argument over this contract appears to concede that it applies to future extensions of sidings, there is one reference to a statement which appears both in PX1 and also in DX1. Reference is made to the statement: “Each party shall have the right to use any and all industry tracks existing on the date hereof . . .” This is said to preclude its application to ADM which did not exist at that time. However, we feel this language only made it clear that the rights given did apply to existing tracks, but not to the exclusion of extensions and future construction.

We here point to other writing in PX1 with emphasis added to call attention to the fact this does not exclude later construction. The same sentence above' quoted as it appears in PX1 reads as follows: “Each party shall have the right to use any and all industry tracks existing on the date hereof for the purpose of serving industries now or hereafter located within the joint industrial area.

In the next paragraph appears this phrase: “Each party shall have the right to use any and all industry tracks to be constructed and maintained .... for the purpose of serving industries, docks or facilities presently or hereafter located within the joint industrial area . . In a later paragraph reference is again made to “industry tracks as may hereafter be constructed . . . .”

When the parties included in the operating agreement DX1 dated in 1959 similar wording referring to “industries presently located . . .” it must be presumed the words were intended to have the same meaning which the same parties agreed upon in the 1957 contract which still was in force and effect.

It follows, and this Court so holds, that the ADM facilities were not excluded from the industries included in the contract.

It appears, therefore, that the trial court ruled correctly and that the evidence justifies a decree in favor of the defendant dismissing plaintiff’s complaint.

We regard the weight of the testimony as indicating that the parties recognized the use of their own engines and crews on the same sidings at the same time as the other was not practical and that the operating agreement came into existence for that reason. There are certain specific uses specified in DX1. There was in it also a provision for cancellation, which we regard as bearing out the intention that the operating agreement was subject to change or a new substitute upon agreement of the parties. The cancellation could be by either party alone. However, neither contract nor other evidence permits either party alone to cancel arrangements for switching operation and proceed to the use of its own engines and crews on the tracks of the other, without its consent.

The decree dismissing plaintiff’s complaint thereby refuses any specific performance of the alleged contract and refuses to enjoin interference and leaves it to the parties to carry out their agreement that one or the other method of handling the switching duties should be subject to mutual agreement.

The appellant contends that the president of TP&W was not authorized to negotiate with union representatives in behalf of North Western. Considered as a question of fact, the evidence is not sufficient to establish an agency of Mr. Coulter to represent C&NW. There may be other matters bearing on this subject as a matter of law. For example the interveners cite a Federal case to the effect that an employer has a duty to bargain with a union prior to the transfer of work to another employer. United Industrial Workers v. Board of Trustees of the Galveston Wharves, 351 F2d 183, CA 5th (1965). However, the dismissal of the plaintiff’s complaint had the practical effect of removing the reason for the cross-complaint. Therefore, it does not appear to be necessary that this decision make any ruling as to the status of the operating unions. We regard it as proper that the chancellor dismissed the countercomplaint under the circumstances.

The rulings of law in the Circuit Court were correct, and the resulting decree is within the scope of the evidence. Therefore the decree is affirmed.

Decree affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph S. McCombs, Defendant-Appellant.
    Gen. No. 67-115.
    Second District.
    April 29, 1968.

      Mackenzie, Vescelus, Leetz & Perry, of Wheaton (John T. Perry, of counsel), for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

In a trial by the court after waiver of jury, the defendant was found guilty of the crime of burglary, and thereafter, released on probation. From the judgment of conviction the defendant appealed.

Defendant alleges as errors, that he was not proven guilty beyond a reasonable doubt; that the people should have been required to specify the felony charged in the indictment; that the trial court improperly excluded evidence ; and that the trial court improperly denied defendant access to grand jury testimony prior to trial.

The defendant, Joseph S. McCombs, was nineteen years old at the time of the incident alleged in the indictment.

Some three months prior to the offense charged in the indictment, the defendant was involved in a motorcycle accident which rendered him unconscious and resulted in his hospitalization in St. Louis, Missouri. As a result of this occurrence, the defendant was missing a piece of bone from his skull and was temporarily paralyzed on his left side. During his convalescence the defendant resided with his parents in Wheaton. At this time, defendant was visited by one, Barbara Berg, an acquaintance from his high school days in Wheaton. The defendant and Barbara Berg had dated for a period of two to three months during the year of 1963. During this period of their initial acquaintance of 1963, the defendant was with Barbara Berg without the consent of Barbara Berg’s parents on a number of occasions. These rendezvous took place in the early morning hours anywhere from midnight to just before dawn. He and Barbara Berg would either prearrange these meetings, or defendant would knock on her bedroom window. The defendant had been in the Berg house frequently and knew the location of her bedroom. He and Barbara, according to the testimony of Barbara, engaged only in “necking” and “kissing” during their early morning rendezvous. The defendant renewed his acquaintanceship with Barbara in the latter part of August 1965, a year before the occurrence alleged in the indictment.

During the month of August 1965, Barbara Berg spent the night in the home of the defendant and the parents of the defendant were not present. Along with Barbara Berg, two other girls were present, as was the defendant and one other male. Barbara Berg was clothed in a sweatshirt and a pair of panties.

Early in the evening of August 13, 1966, the defendant had a date with a girl other than Barbara Berg. They went to a couple’s home for an evening of drinking beer and watching television. The defendant and the host purchased a case of beer which they proceeded to drink while watching television.

The defendant and his date left the hosts’ home at approximately 12:30 a. m. on August 14, 1966, the date of the occurrence alleged in the indictment. They went to a restaurant and drank coffee until approximately 2:00 a. m. The defendant then returned his date to her home in Wheaton. They talked outside of her home for approximately forty-five minutes and thereafter the defendant escorted his date to the door.

The defendant then drove his automobile to the residence of Barbara Berg, parked his car and walked to the front door. The defendant found the front door open and walked in. Prior to his entry into the house, the defendant removed his shoes, and upon entry removed his trousers and shirt and proceeded to the bedroom of Barbara Berg.

The mother of Barbara Berg, became aroused from her sleep and walked to the front of the house where she noticed the front door ajar. She closed the door and made a quick tour of the bedrooms.

The last bedroom Mrs. Berg checked was the bedroom ordinarily occupied by her oldest daughter, Barbara, but on this night it was occupied by her daughter, Betty, age 15. Betty was lying on her side sleeping. The bottom part of her two-piece nightie was pulled down to her knees and the white skin of her buttocks contrasted deeply with the dark tan. The nightie was the type that had elastic at the waist and about the legs. Mrs. Berg pulled the nightie up, called to her daughter and shook her lightly. She turned the light on, on the table beside the bed, and at this time noticed the defendant huddled against the wall dressed in only his socks and jockey shorts. His clothing appeared to be folded beside the bed. Mrs. Berg jumped up, screamed and attempted to capture the defendant. He broke away and the defendant was captured in the hallway by the husband of Mrs. Berg and other members of the family. They did not recognize the defendant until after he was subdued. The police were thereafter called and the defendant’s clothing was retrieved from the hallway.

The defendant testified that he went to the Berg residence to see Barbara Berg. He parked his car several doors from the Berg residence and placed his shoes under the evergreens. He turned the knob on the front door and found it unlocked. He then placed a hose so that it would keep the screen door open and left the door open behind him. After he entered, he removed his trousers and shirt in the hallway. He proceeded to a bedroom which he thought was Barbara’s and was in the bedroom only a short time when he heard someone moving.

The defendant testified he shrank against the wall and dropped his clothing. This defendant further testified that he did not recognize the sleeping figure in the bed and further, that he did not touch either the person or the clothing of the person lying in the bed.

The defendant first contends that the people have failed to prove beyond a reasonable doubt one of the essential elements of the crime of burglary. With this contention we agree.

The gravamen of the offense of burglary is the intent with which the building is entered. People v. Maffioli, 406 Ill 315, 320, 94 NE2d 191 (1950). Further, the specific felonious intent must exist and may be measured at the time of an unauthorized entry into the dwelling of another. In People v. Gooch, 70 Ill App2d 124, 130, 217 NE2d 523 (1966), the court held that the crime of burglary was completed upon entering with intent to steal.

In the case of People v. Soznowski, 22 Ill2d 540, 543, 177 NE2d 146 (1961), the court held that in a burglary prosecution, the requisite felonious intent is a matter of fact and cannot be implied as a matter of law. The burden is, of course, on the prosecution to prove beyond a reasonable doubt the element of felonious intent in the crime of burglary.

The defendant contends and rightly so, that the court must look to the specific intent of the defendant at the time of his entry into the residence of Barbara Berg. The intent must be determined from the facts in the case.

The evidence further shows that the defendant was only vaguely acquainted with Betty Berg, the fifteen-year-old lying in the bed in the bedroom, the sister of Barbara. Further, the evidence of the stated intention of the defendant who testified was that he was going to see Barbara. The prosecution evidence was directed towards proof of intent either towards rape, or indecent liberties with a minor, to wit, Barbara’s younger sister, Betty. Little more was raised than a suspicion that the defendant touched or fondled Betty, and in fact, we have the testimony of the defendant that he did not touch or fondle the person or clothing of Betty Berg.

Therefore, it can be said that, without resorting to natural speculation, such evidence constitutes, at most, an inference that, at the time of defendant’s entry into the Berg residence, the defendant intended to resume a previously defined relationship with Barbara Berg, a consenting adult. This evidence raises sufficient and consistent circumstances to negate the inference of the intent to commit a felony sufficient to sustain a conviction of burglary.

It is axiomatic that it is the province of the trial judge hearing the case without a jury, to determine the credibility of the witnesses and the weight to be given to their testimony, and his judgment will not be disturbed unless manifestly contrary to the weight of the evidence. Yet, if a review of the evidence and a consideration of the entire record leaves us with a grave and serious doubt of the guilt of the accused, it is our duty to reverse the judgment. People v. Campagna, 240 Ill 378, 390, 88 NE 797 (1909); Dahlberg v. People, 225 Ill 485, 491, 80 NE 310 (1907). The record before us does little more than raise a suspicion of the defendant’s guilt, and the judgment of conviction cannot be allowed to stand. In this view it becomes unnecessary to consider defendant’s other claims of error. We therefore reverse.

Reversed.

DAVIS and MORAN, JJ., concur.


author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Earl McNanna, Defendant-Appellant.
    Gen. No. 68-18.
    Third District.
    April 29, 1968.
    Craig Armstrong, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney, of Ottawa, for appellee.
   ALLOY, P. J.

This cause is before us on a writ of error from a judgment of the Circuit Court of LaSalle County, as a result of a trial held in 1963, in which defendant was found guilty of the crime of arson in a jury-waived trial. At the trial defendant was represented by counsel appointed by the court. Proceedings recently initiated culminated in the Illinois Supreme Court which transferred the review proceedings for determination by this Court in February, 1968.

The record discloses that defendant, Edward Earl Mc-Nanna, and his wife had been arguing for many days and that defendant had begun a drinking spree at 10:00 a. m. on the morning of May 24, 1963. At approximately midnight that evening he encountered his wife at a place called the Hilltop Tavern. Defendant’s wife was seated with defendant’s sister at the time. Defendant then took a seat to the right side of his wife (his sister was seated on the left side of his wife) and defendant began an argument with his wife about her wedding rings. The sister of defendant, a Betty Marcin, testified she heard this portion of the conversation. In the trial of the cause defendant’s wife was permitted to testify that she told defendant that her wedding rings were at home; that defendant then hit her and said that he “was going to burn everything I loved.” The sister, Betty Marcin, who was seated next to defendant’s wife, testified that she did not hear that portion of the conversation relating to the threat to burn nor did she see defendant strike his wife. The conversation and the threat, according to the testimony of the wife, were made within the sight and hearing of the sister, Betty Marcin. Defendant’s wife testified that she then went from the tavern to the County Jail to swear out a warrant for defendant for assault and battery. While she was at the jail she saw a fire truck go by and then learned it was the house where she lived that was burning.

From the record, it was apparent that the fire which was set at defendant’s apartment was set intentionally as there were three separate fires on the floor. One involved a pile of family pictures that had been burning, another was on the couch cushions, and another involved papers piled at the end of the parlor. A can of lighter fluid which was kept in a linen closet was near one of the three fires and the photographs which were on fire were family photographs which had been locked in the desk where defendant’s wife had left them that evening. Defendant denied setting the fires and testified that he went to the home, had a cup of coffee and went on to another tavern without noting any fire or anything unusual in the neighborhood.

The question for review which arises in the case is whether the admission of the testimony of the conversation between the defendant and his wife (through testimony of his wife) as to his threat to “burn everything I loved,” was proper or whether it was confidential and, therefore, incompetent under the provisions of the 1963 Ill Rev Stats, c 38 § 155-1. The Statute under consideration provides specifically as follows:

“In all criminal cases, husband and wife may testify for or against each other: provided, that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during coverture, except in cases where either is charged with an offense against the person or property of the other or in case of wife abandonment or where the interest of their child or children are directly involved, or as to matters in which either has acted as agent of the other.”

Both parties cite the case of People v. Palumbo, 5 Ill 2d 409, 125 NE2d 518, which is the leading case upon the subject, and both the People and the defendant contend that this case is authority for the position taken by the People (that the conversation was properly admitted into evidence) and by the defendant (that it was erroneous to permit such testimony). In People v. Palumbo, supra, a person named Martello went to the home of defendant and his wife to purchase narcotics. He had $5 in marked bills. Martello testified that defendant’s wife admitted him into the kitchen and also that in the presence of both defendant and his wife he asked defendant’s wife if she had any “stuff.” The wife testified that her husband directed her to go into the bedroom and get the package of narcotics since she was closer to the bedroom. The wife then went into the bedroom, got the package lying on the dresser and handed it to the defendant. She also testified that defendant handed the package to Martello and Martello gave defendant $5. Defendant stated that, although he was in the kitchen, he did not hear the conversation between Martello and his wife or know what occurred between them. On appeal, an issue was the admissibility of evidence of the conversation which followed between defendant’s wife and defendant (as related by defendant’s wife).

The Supreme Court in the Palumbo case referred to, in analyzing the statute and the effect of the Act, stated (at Page 412):

“Determination of this issue requires an analysis of the statute in question against the background of the common law and earlier statutory provisions. With limited exceptions not here pertinent, husband and wife were incompetent to testify for or against each other at common law. The disqualification was rested in part upon their interest, in part upon the common-law notion of unity of husband and wife, and in part upon a desire to promote domestic tranquility. (I Blackstone, p 443; II Wigmore, Evidence, sec 601 (2d ed).) At the same time there existed in all actions a privilege which protected confidential communications made between husband and wife during coverture. VIII Wigmore, Evidence, secs 2332-2335 (3d ed).”

The court then pointed out that in the State of Illinois, this matter had been governed by the Evidence Act and that section 5 provided that nothing in section 1 of the Act should render the husband or wife competent to testify against the other as to any transactions or conversations occurring during the marriage except in certain specifically enumerated instances. The court also pointed out that in Funk v. United States, 290 US 371, decided in 1933, the United States Supreme Court appraised the basis for the common-law rule of disqualification of husbands and wives in the light of experience and of present conditions, and concluded that the disqualification could not “be any longer justified, if it ever was justified, on any ground of policy.” The court in the Palumbo case (at Page 414) pointed out that the legislature responded promptly to the suggestion made in People v. Kendall, 357 Ill 448, 456, 192 NE 378, and amended section 5 of the Evidence Act, and in 1937 it amended section 6 of Division XIII of the Criminal Code so that the language of the present Act referred to became effective.

The court in the Palumbo case then concluded that read against the historical background, it is clear that the statutory changes were intended to eliminate the common-law disqualification of husband and wife, and that in order for a spouse to claim a privilege or prevent the conversation from being admitted in evidence, it must in fact be “confidential.” The court asserted that when made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence. The Supreme Court stated in the Palumbo case that since Martello was in the kitchen when the conversation between defendant and his wife took place, the conversation was not confidential and evidence of the conversation was admissible. The court further stated (at Page 415):

“Statutory expressions of the common-law privilege similarly stated in terms of ‘any communication,’ have frequently been construed to include only the common-law privilege covering confidential communications.”

Applying the principles reviewed in the Palumbo case, the statement by defendant to his wife made in the Hilltop Tavern regarding his intention to “burn everything I loved” was not confidential within the meaning of the section of the Act referred to in this opinion. The conversation took place in a public establishment at a table where the wife was seated in the middle, and defendant’s sister was seated to her other side. Defendant’s sister stated she heard the portion of the conversation which involved a dispute over wedding rings. She stated she did not hear the portion of the conversation referring to any burning. The fact that she heard part of the conversation demonstrated that defendant did not intend this conversation to be a confidential communication between himself and his wife. Taking the circumstance under which the conversation took place in a public tavern and after defendant had admittedly been drinking for over 14 hours, on the record it appears that the conversation between defendant and his wife was not intended as a confidential conversation.

Defendant cites the case of People v. Bartell, 386 Ill 483, 54 NE2d 700, as a precedent in the instant case. In that case involving a conviction for manslaughter of a two-year-old daughter, the wife was permitted to testify as to conversations between herself and her husband concerning the fatherhood of the child when no other person was present. Such statement was clearly intended as a confidential communication between husband and wife and was therefore privileged within the Statute. Since the conversation in the instant case was not made in the sole presence of the wife, we conclude that it was not a confidential communication and, therefore, that the conversation was properly admitted under the precedent of People v. Palumbo, supra.

Since we find no reversible error in the record, the judgment of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: MR,. JUSTICE DAVIS

text:
    Village of Riverwoods, a Municipal Corporation of Illinois, Plaintiff-Appellant, v. County of Lake, a Body Politic and Corporate of Illinois, Baxter Laboratories, Inc., Chicago Title & Trust Co., as Trustee Under Trust No. 43748, Henry W. Kauke, et al., Defendants-Appellees.
    Gen. No. 67-166.
    Second District.
    April 30, 1968.
    Rehearing denied and supplemental opinion June 21, 1968.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellant.
    Bruno Stanczak, State’s Attorney, of Waukegan, Earl J. Kruse, Assistant State’s Attorney, McClory, Bairstow, Lonchar & Nordigian, of Waukegan, and Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellee.
   MR,. JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves an interpretation of the statute conferring upon counties the power to amend their zoning districts.

The plaintiff, Village of Riverwoods (herein called Riverwoods), sought a declaratory judgment asking, among other things, that a certain zoning amendment, purportedly adopted under the County Zoning Act by the defendant, County of Lake (herein called the County), be declared void and of no effect, and that the statute be declared unconstitutional — at least, as interpreted by the zoning body of the County. The trial court found for the County and upheld the rezoning.

Riverwoods appealed directly to the Supreme Court, and that court transferred the case here. In its order of transfer it stated that in its opinion the appeal did not present a substantial constitutional issue, but only a question of statutory construction and application.

The statute in question is section 5 of the County Zoning Act. (Ill Rev Stats 1965, c 34, par 3158.) It provides that the regulations imposed, and the districts created under the Act may be amended, but that no amendment shall be made without a public hearing before the Board of Appeals; that at least fifteen days’ notice of the time and place of such hearing shall be published in a paper of general circulation in the county; and that hearings for the consideration of general amendments to a county zoning ordinance may be held in the courthouse. With reference to the vote required to pass such an amendment, the statute provides as follows:

“. . . In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty percent of the frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately adjoining or across an alley therefrom, or by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered, or in cases where the land affected lies within one mile and one-half of the limits of a zoned municipality, by the city council or president and board of trustees of the zoned municipality with limits nearest adjacent, filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all the members of the county board.”

The above statute relates to notice, public hearing, protest by frontage owners and by the municipality nearest adjacent to the land affected; and the required vote of the County Board for the passage of a zoning amendment. Riverwoods contends that the statute refers to the municipality nearest adjacent to the property which is proposed to be rezoned as described in the petition for rezoning. The County urges that the statute refers to the municipality nearest adjacent to the property which is actually rezoned by the final action of the County Board of Supervisors. The trial court, as well as the County Board, agreed with the contention of the County.

As to the factual background giving rise to the zoning dispute, the defendant, Baxter Laboratories, Inc. (herein called Baxter), first filed a petition with the Lake County-Zoning Board of Appeals, on January 3, 1966. In this petition, Baxter sought to rezone the four adjoining tracts of land, referred to as Tracts 1, 2, 3 and 4, which totaled approximately 140 acres, from Residential to Light Industrial (L-I). The property described in the petition as Tract 1, included all of that land extending westerly to Saunders Road, and the entire property is depicted in the following sketch:

Tracts 1, 2, 3 and 4 are situated between the Villages of Riverwoods and Deerfield. Riverwoods is separated from the southerly portions of the property by Saunders Road — a main thoroughfare — and a certain parcel of land located east of said Road and west of Tract 4. It virtually adjoins the southwest corner of Tract 1 as described in Baxter’s petition, and is approximately 427 feet, at its closest point, from Tract 4. The Village of Deerfield lies to the east of the northern portion of the property. At the nearest point, it is approximately 300 feet from the property and is separated from it by the Northern Illinois Toll Road.

Both Villages filed written protests to the proposed Baxter rezoning, and, accordingly, in order for such amendment to be passed, it became necessary that it receive a favorable vote of three-fourths of all the members of the County Board. The Board of Appeals recommended that the petition be denied. The County Board of Supervisors, however, on March 8, 1966, by the required three-fourths’ vote, granted the rezoning in part. It rezoned the property L-I, as requested by the petitioner, except for a portion 600 feet in width on the westerly end of Tract 1. This is indicated on the Sketch by the dotted line.

In the meantime, however, the County Board of Supervisors had also, on January 11, 1966, adopted a comprehensive amendment to its original zoning ordinance, which was the result of extensive hearings and planning. Under this amendment, the property described in the Baxter petition and notice — Tracts 1, 2, 3 and 4 — was reclassified as O & R (Office and Research). This amendment did not become effective, however, until March 31,1966.

Thereafter, on May 10, 1966, the County Board of Supervisors adopted a resolution reciting the two proceedings whereby it had recently rezoned part of the premises in question from Residential to L-I, and, thereafter, under the comprehensive amendment, to O & R. Thereby, it directed the County Zoning Board of Appeals to conduct a public hearing on the petition originally filed by Baxter, for the purpose of considering whether the property should be reclassified from O & R to L-I.

Thus, the premises to be considered by the Zoning Board of Appeals were Tracts 1, 2, 3 and 4 — the property as originally described in the petition filed by Baxter. However, the publication notice of the hearing did not contain the complete legal description as set forth in the original petition and in the resolution adopted by the County Board on May 10,1966, but rather, excepted from the original description of Tracts 1, 2, 3 and 4, the westerly 600 feet of Tract 4.

This discrepancy was called to the attention of the Board of Appeals. The Board determined that it would proceed upon the resolution of the County Board of Supervisors and consider the entire premises. At the hearing, Baxter stated that it did not expect and would not request a rezoning of the 600 feet immediately east of Saunders Road. It is not clear whether Baxter was then referring to the westerly 600 feet of Tract 1, the 600 feet along Tract 4, or the 600 feet adjacent to both of said Tracts. There is also uncertainty as to whether Baxter, the opposing parties, and the Board, in discussing the exception of 600 feet, were talking about the same exception. It is crystal clear, however, from the total discussion of the parties to this proceeding, that no one contemplated the westerly 600 feet of Tract 4 as the exception, in that such exception would remove from the rezoning an area, adjacent to the remaining easterly part of Tract 4 and east of Saunders Road, of from 1,000 to 1,100 feet.

While Baxter did not formally amend its petition, the Chairman of the Board of Appeals acknowledged that it would consider that Baxter had done so, but at the same time he stated that the Board would proceed on the basis of the petition being for all of the four Tracts. The Chairman, in so doing, stated that its ultimate recommendation to the County Board might be that all of the four Tracts remain O & R, or that a part, or all of them, should be L-I. The Board, thus, proceeded on the theory that it properly had before it for consideration the zoning to be granted to all of the four Tracts.

Riverwoods filed a written protest to the rezoning being sought, but the Village of Deerfield failed to do so. Riverwoods took part in the public hearings. The Board of Appeals then made factual findings regarding the factors which it considered material and it appears that it concluded that Tracts 1, 2, 3 and 4 should be rezoned L-I, except for the westerly 600 feet thereof, which would be retained as a buffer strip and remain in the 0 & R district. It made such recommendation to the County Board.

On July 12, 1966, the County Board of Supervisors, by less than a three-fourths’ vote, voted to rezone Tracts 1, 2, 3 and 4 as L-I, except for the westerly 600 feet of Tract 1, which would remain as O & R.

Thus, the final action of the County Board of Supervisors was initiated by their resolution asking for a consideration of the zoning of the premises as described in the original petition filed by Baxter. Under the Baxter petition, all of Tracts 1, 2, 3 and 4 were brought up for consideration. The property as finally rezoned excepted from Tracts 1, 2, 3 and 4, the westerly 600 feet in width of Tract 1, but the premises described in the publication notice excepted from Tracts 1, 2, 3 and 4, the westerly 600 feet of Tract 4. The County Board of Supervisors, by their action, purported to rezone the westerly 600 feet of Tract 4, although this property was not included in the publication notice.

Illinois courts have held that the statutory provisions for the publication of notice in connection with the amendment of zoning ordinances are within the confines of procedural due process, even though the owners of land affected do not receive personal notice thereof. Bohan v. Village of Riverside, 9 Ill2d 561, 566, 138 NE2d 487 (1956); Braden v. Much, 403 Ill 507, 513, 514, 87 NE 2d 620 (1949). In Lancaster Development, Ltd. v. River Forest, 84 Ill App2d 395, 228 NE2d 526 (1967), at page 400, the court held that the attempts by the Village of River Forest to suspend the operation of its valid zoning ordinance, without compliance with the statutory requirements for amending such ordinance, were null and void. These cases imply that the statutory requirement of notice is jurisdictional. No Illinois cases have been cited, and we have found none which so hold.

We regard the petition which seeks rezoning, or the proposed ordinance or resolution of amendment, as the procedure whereby the proposed change in the existing zoning is initiated. Section 5 makes specific provision for a hearing preliminary to the amendment of a zoning classification and requires notice to all interested parties. Such requirement is for the protection of the property owners and is essential to the exercise of jurisdiction by the County, or its agencies, over the land described in the notice. We believe such notice to be mandatory and jurisdictional. Any amendment passed in contravention thereof is void. A majority of the states have so held, including California, Massachusetts, New York, Ohio, Pennsylvania, Texas and Virginia. See: Annotations, and cases cited therein, 96 ALR2d, 449-516 incl. The Illinois cases heretofore cited, and those of our sister States set forth in the annotation, sustain our conclusion that the statutory requirement of notice is mandatory and jurisdictional.

Thus, since the last publication notice did not include the westerly 600 feet of Tract 4, such property was not properly before the Zoning Board at the final hearing. It could not then act upon property not included in the publication notice, and the County Board could not change the zoning classification of such land even though it was included in its initiating resolution.

Under given circumstances, such as absence of prejudice, actual notice or participation in the hearing by all persons interested, or waiver or estoppel, the courts of other states have held that noncompliance with the notice requirement may be either curable or excusable. However, under our determination of this case, we do not reach this point. The parties did not present such circumstances to the court below, and we may not, on the record before us, assume that the notice deficiency was either cured or excused. See: Annotations, supra, 474-480.

Since the County Board of Supervisors purported to rezone Tracts 1, 2, 3 and 4, except the westerly 600 feet of Tract 1, as L-I, it was rezoning all of Tract 4 as L-I, when it had no jurisdiction over the westerly 600 feet of said Tract. Thus, its action with reference to the said Tract was invalid. From the record we cannot determine whether the Board would have so rezoned the other Tracts had it known the limitation on its jurisdiction with reference to the westerly 600 feet of Tract 4, nor can we determine that Baxter would have desired or sought such rezoning. The entire parcel, although described in four tracts, was considered as a unit. Under these circumstances, it would be improper to hold that the action of the Board may be upheld as to the land described in the publication notice, but not as to the rest. To do so would be to sever by guess or surmise that which may not be properly severable.

Consequently, we hold that the action of the County Board in rezoning said premises to L-I is void, and we reverse the judgment of the trial court. Under our decision, we do not reach the constitutional issues raised by the plaintiff.

Judgment reversed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.

Supplemental Opinion on Denial of Petition for Rehearing

The defendants filed a Petition for Rehearing asserting that the opinion of this court is improperly founded upon “procedural due process” even though the transfer of the case to this court from the Supreme Court eliminated constitutional issues from the case. As noted in the opinion, the order of transfer stated that the Supreme Court was of the belief that the case did not present substantial constitutional issues, but only a question of statutory construction and application.

Our opinion with reference to the significance of the notice requirement of the relevant statute is primarily a matter of statutory construction and is not susceptible of being parlayed into a substantial constitutional question. Consequently, we have jurisdiction to determine this issue even though it may involve, incidentally, a constitutional question, so long as it is only to this limited extent. Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 346, 347, 213 NE2d 778 (1966).

The defendants suggest that any defect in the notice of the hearing on the proposed rezoning amendment was waived by participation of the parties in the proceedings. The difficulty with this contention is that the record does not show that all of the interested persons, or frontage owners, actually did so participate. The record only indicates that unidentified property owners participated therein and not that all of the interested parties did so.

As stated in our opinion, it is clear to those who did participate that the description contained in the notice was erroneous, and that a change in zoning was in fact sought for land not within that description. Unfortunately, however, it is not known how many other interested parties were unaware of this fact, or what their attitude relative to the rezoning, as adopted, might have been had they been aware of the discrepancy with reference to the land described in the notice and the land actually rezoned.

It may be that there were no additional interested parties by virtue of the discrepancy, but that supposition is merely speculation absent proper notice and absent a positive showing of participation by all of those directly affected. Such speculation is too frail a basis to confer jurisdiction and that is the very reason the statutory notice requirement is significant.

Since the record does not show that all of the property owners adjoining the rezoned premises participated in the proceedings, we cannot conclude there was no prejudice by reason of the defective notice, or that persons unknown to us and foreign to the record, have waived any defect in the notice. The deficiency in the notice compels us to hold that the act of rezoning was void, and we adhere to our opinion.

Petition for rehearing denied.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stephen T. Habdas, Defendant-Appellant.
    Gen. No. 67-136.
    Second District.
    May 2, 1968.

      Edwin L. Douglas, of Wheaton, and Robert W. Hotte, of Elmhurst, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Stephen T. Habdas, the defendant-appellant, and Nicholas Massesso, Jr., were jointly indicted by the Grand Jury for the offense of burglary, with intent to commit a theft on or about April 16, 1966, of a school building located at 935 Maple Avenue in Downers Grove, owned by the County Board of School Trustees of DuPage County. At a trial by jury, the defendant Habdas was found guilty, and a not guilty verdict was returned as to Massesso. Judgment was entered on the verdicts, and Habdas was sentenced to the penitentiary for not less than three nor more than eight years. It is from this judgment and sentence that he has appealed.

Gregg Rybinski, an administrative assistant of Public School Districts 58 and 59 of DuPage County, was summoned by the Downers Grove police, about 3:00 a. m., on September 16,1966, to come to the Lincoln School located at 935 Maple Avenue — an east-west street. The school districts maintained their administrative offices on the third floor of this building.

When he arrived, the front door of the building was open and certain office equipment owned by the districts was found outside the building and in the first floor foyer. The administrative offices were in disarray. Six electric typewriters, two dictaphones, several typewriter covers and two checks were missing. This equipment was later found alongside a ditch on 61st Street. A pane of glass was broken in a second-floor window, accessible by a fire escape and the roof of the second floor. The window, which had been locked and painted shut, was unlocked and raised.

Rybinski testified that a rectangular building juts out from the original building toward Maple Avenue, and is about 30 feet distant from the avenue curb line; that the entrance doors which face Maple Avenue, are about 30 feet back of this rectangular building, or a distance of 60 feet from the curb line; and that on September 15 and 16, 1966, there were two 100-watt bulbs over the entrance, and two 150-watt floodlights at the six comers of the building; and that the nearest corner floodlights were 30 to 40 feet from each side of the entrance which faces the north.

Officers Richard Harrison and Henry Niewold were on routine patrol duty at about 2:15 a. m., on September 16, 1966. They testified that Harrison was driving east on Maple Avenue; that as they passed the school, Niewold threw a spotlight on the entrance and they saw a 1961 Mercury, light blue or green in color, with its lights off and trunk open, backed up to the school entrance doors; and that the doors were ajar and two males were standing to the rear of the car.

Harrison testified that he stopped the car about 20 to 25 feet east of a driveway which runs from Maple Avenue to the entrance doors; that Niewold jumped out of the car and ran up the drive toward the school; that he (Harrison) attempted to back up the squad car to block the driveway, but the car stalled; and that he then got out and went back to the driveway. Both Harrison and Niewold testified that one of the parties got into the car and drove at high speed down the driveway and veered the car at Niewold, who shouted for the driver to stop as he leaped out of its path. Harrison stated that the car passed him at a speed of about thirty-five miles per hour while he was standing on the east edge of the entrance to the driveway; that he ordered the driver to stop; that the car slowed down somewhat as it passed him; and that the driver lost control of the car and it slid sideways across Maple Avenue at a further reduced speed, then sped off in a westerly direction.

Harrison stated that he observed the face of the driver for five or ten seconds as the car passed within 10 to 15 feet to the left of him; that he recognized the driver by face but not by name; that he fired one shot from his 357 magnum “with 38 loads” at the fleeing car when it was from 50 to 75 feet away; that the lights of the car were off, but he was able to read the first four of the six digits of the license number which were DN36 — ; and that he radioed the central station in Downers Grove that there was a burglary in progress at the Lincoln School. Thereupon, he pursued the car; lost it, radioed the Westmont police — directly to the west —to halt any car of the noted description and with the partially reported license numbers; and then returned to the school.

The testimony conclusively established that in addition to the lights aforementioned, there was a 450-watt fluorescent street light on Maple Avenue about 15 feet from the school driveway.

Harrison further testified that when he returned to the school, Sergeant Drendel and Officer Kelly were there; that he went to the administrative offices, found them in a state of disorder and saw the broken window; that he later went to the Downers Grove Police Station and saw the 1961 Mercury Sedan which bore license number DN3648; and that there was a bullet hole directly in the center of the trunk which did not go through the metal but rather, left a groove in it.

Niewold further testified that when he threw the spotlight on the school doors, one of the parties standing behind the car in question had a “typewriter like object” in his hands. His testimony corroborated that of Harrison relative to the manner in which the car left the school entrance, except that he testified that the lights of the car were on as it went by him.

Niewold also stated that the car passed within 1 or 2 feet from him; that he looked into the side window and saw the driver’s face which was illuminated either by the reflection from the floodlights or from the dashlights or street light; that he identified the driver whom he knew by sight but not by name; that he then unsuccessfully pursued the other party who ran around the school building to the rear; that Drendel and Kelly arrived as he returned to the school; that he went to the administrative offices which had been ransacked; that all but one typewriter had been removed; that a pane of glass in a window, which had been painted shut, was broken; that the window was unlocked and raised; and that there were no jimmy marks on the window.

Officers Drendel and Kelly testified with reference to what they observed when they arrived at the building at about 2:30 a. m., September 16, 1966. Their testimony in this respect corroborated the testimony of the People’s other witnesses. They further testified relative to discovering the missing typewriters and dictaphones along a ditch on 61st Street while searching for the party who ran from the school after the 1961 Mercury had been driven from the school entrance.

Robert Brindac, a police officer of the Village of Westmont, testified that he was driving a police car in Westmont about 2:30 a. m., on September 16, 1966, when he received a dispatch to be on the lookout for a 1961, blue-green Mercury Sedan with a partial license number DN36 — , with one male driver who was wanted for burglary in Downers Grove; that he saw such a vehicle about 2:49 a. m., bearing license number DN3648 and he followed it until it stopped at 413 North Grant Street; that he stopped behind it, called to the driver, whom he recognized as Stephen Habdas, when he got out of the car; that he told Habdas he would have to go with him to the police station; that he permitted him to go into the house to tell his wife, and then accompanied him to the police station.

Detective Larry Nielsen of the Downers Grove police force testified that he found no usable fingerprints on any of the machines in question, and found no jimmy marks on any doors or windows.

The defendant, Habdas, called his brother, James Habdas, who testified that the indentation on the trunk of the 1961 Mercury was a built-in feature of the car to aid in raising the trunk door. The People called Jack Hendrycks, service manager of the Lincoln-Mercury dealer in Glen Ellyn, who testified to the contrary. The defendant’s brother and his mother, Naoma Habdas, testified that the lock on the trunk of the car was damaged a long time prior to September 15,1966.

Habdas testified on his own behalf. He stated that he was not at the Lincoln School on September 16, 1966; that he did not enter it or commit a theft therein; that he knew Officer Harrison, and Harrison knew him by name; that he knew Sergeant Brindac very well, and that Brindac had knowledge of the appearance of the 1961 Mercury. He also stated that on September 16, 1966, he was employed and worked at the Venice Pizzaria in Downers Grove; that his working hours were from 4:00 p. m. until 12:00 p. m., on weekdays, and from 4:00 p. m. until 2:00 a. m., on Fridays and Saturdays; that he made his last delivery a little after 2:00 a. m., on September 16, returned to the Pizzaria and spent about ten minutes mopping the floor; that he then asked his employer to make a pizza for him, which took twenty to thirty minutes; and that he put the pizza in the car and went home. He also testified that if September 15,1966, were a Thursday, that his working hours on that date would have been until 12:00 p. m. A calendar for the year 1966 was admitted in evidence, and it was stipulated that September 15,1966, was a Thursday.

In this court, the defendant contends that the evidence adduced at the trial failed to establish his guilt beyond a reasonable doubt; that his identification was based on improbable testimony; and that the court erred in refusing to instruct the jury on the question of circumstantial evidence.

The defendant argues that there was no proof of forcible entry into the building; that there were no jimmy marks on the doors or windows; that the window which was broken could have been broken in many ways; that no fingerprints were found on any of the typewriters or dictaphones; and that there was no testimony that the defendant was wearing gloves. He also urges that the testimony of Harrison and Niewold was in direct conflict, in that Niewold stated that the lights of the car were on as it approached and passed him and Harrison stated that the lights were off. He also argues that if Harrison recognized the defendant as he stated he did, then he would have transmitted messages to the Downers Grove and Westmont police to be on the lookout for Stephen Habdas, who was driving a blue-green 1961 Mercury sedan.

The jury found, and we agree, that the evidence established that a forcible entry had been made into Lincoln School. The glass in the lower pane of the window into the administrative offices of the building was broken; the window was unlocked and raised, even though it had been painted shut. Fingerprints were not required for identification of the defendant. Harrison and Niewold each testified that they recognized him by face when he drove by them while fleeing from the school building in the 1961 Mercury sedan, and they identified him at the trial by name and face. Also, the description of the car and the partial license number identification DN36 — , coincided exactly with the car driven by the defendant to his home at 413 North Grant Street in Westmont when he was apprehended at 2:49 a. m., September 16, 1966, by Sergeant Brindac. The time sequence also fits perfectly into the events connected with the offense charged.

Since the testimony of Harrison was that he identified the defendant at the time he sped away in the 1961 Mercury sedan, by face only, it could not be expected that he would transmit messages concerning the burglary, which would identify the defendant by name. Also, the testimony of Harrison and Niewold concerning the lights of the car is not necessarily conflicting. Niewold said the lights were on when the car approached and passed him and Harrison said they were off as the car sped westerly. It would be a natural reaction to turn on the lights when starting a car at night. This is particularly true if the driver desired to blind an approaching officer to avoid identification. Also, it would be prudent to turn off the lights after passing an officer if the driver wanted to prevent the officer from reading the car license number.

The testimony of the defendant and the calendar conclusively established that he worked until midnight on September 15, 1966. Such evidence tended to demolish and impeach his alibi testimony. See: People v. Booher, 73 Ill App2d 226, 229, 218 NE2d 779 (1966). Also, there is no obligation on a trial court or jury to believe alibi testimony over the positive identification of the accused. People v. Setzke, 22 Ill2d 582, 586, 177 NE 2d 168 (1961). Where there is positive identification of a defendant by credible witnesses, as in the case at bar, a guilty verdict may be sustained notwithstanding there may be otherwise uncontradicted alibi evidence and even though the alibi witnesses may be greater in number than those identifying the accused. People v. Wheeler, 5 Ill2d 474, 483, 126 NE2d 228 (1955). In the case at bar both Harrison and Niewold positively identified the defendant, and the defendant was the only alibi witness. He did not call his employer. We believe that the defendant’s alibi testimony contained its own impeachment. Also, the car identification, the time sequence of the burglary, and the defendant’s arrest while driving the car, were compelling facts for the consideration of the jury with reference to his guilt.

The defendant denied that he entered the school building on September 16, 1966, and that he committed a theft therein. Thus, the evidence on this issue was conflicting, as was the evidence on the defense of alibi. It was the function of the jury to determine the credibility of the witnesses and the weight to be given to their testimony. The jury determined these issues adversely to the defendant and, under the circumstances of this case, we will not substitute our judgment for that of the jury. People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325 (1959). In People v. Stangeland, 76 Ill App2d 77, 220 NE2d 748 (1966), at page 80, the court, in quoting from People v. Schoop, 288 Ill 44, 122 NE 836 (1919) stated:

“It is only when this court is able to say, from a careful consideration of the whole testimony, that there is clearly a reasonable and well founded doubt of the guilt of the accused, that it will interfere on the ground that the evidence does not support the verdict.”

We find no merit in the defendant’s contention that the People failed to prove his guilt beyond a reasonable doubt, or that his identification was based on improbable testimony.

The defendant also contends that the court erred in not instructing the jury on the question of circumstantial evidence. The abstract contained two instructions which are marked refused. No other instructions were abstracted. A similar circumstance existed in the case of People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963), and at page 287, the court stated:

“However, no other instructions have been abstracted, and we have consistently held that where the abstract fails to include all instructions, both given and refused, alleged error concerning instructions will not be considered upon review. People v. Robinson, 27 Ill2d 298; People v. Woodruff, 9 Ill2d 429.”

Consequently, we will not consider this alleged error.

We find no reversible error in the record, and the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.