author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    MOLINE NATIONAL BANK et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.—PLAINFIELD NATIONAL BANK, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Third District
    Nos. 82—239, 82—24 cons.
    Opinion filed January 19, 1983.
    HEIPLE, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellants.
    Peter Lousberg, of Lousberg & McClean, of Rock Island, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The taxpayers purchased State and municipal bonds at a premium. The interest from these bonds is exempt from Federal taxation. For State income tax purposes, however, the taxpayer must include the interest to determine his base income. (Ill. Rev. Stat. 1981, ch. 120, par. 2 — 203(b)(2)(A).) The taxpayers in this case excluded the amortized bond premium from the interest payments when they computed their base income. The Department of Revenue ruled that the taxpayers improperly amortized the bond premium. The Department determined that the Illinois Income Tax Act permits no deduction for an amortized municipal bond premium, and assessed deficiencies against the taxpayers. The circuit courts reversed, ruling that a taxpayer may exclude amortized bond premiums from his base income. The Department now appeals.

The issue is whether a taxpayer may exclude an amortized municipal or State bond premium from his base income. This is an issue of first impression in Illinois.

The Illinois Income Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 1— 101 et seq.) imposes a tax on the “net income” of a corporation. (Ill. Rev. Stat. 1977, ch. 120, par. 2 — 201.) The Act utilizes Federal taxable income as the base for computation of a taxpayer’s net income. (Ill. Rev. Stat. 1977, ch. 120, par. 1 — 102.) The focus of the debate in the instant appeal is the Act’s requirement to add Federal tax-exempt interest payments to a corporation’s base income:

“(1) In general. In the case of a corporation, base income means an amount equal to the taxpayer’s taxable income for the taxable year as modified by paragraph (2).
(2) Modifications. The taxable income referred to in paragraph (1) shall be modified by adding thereto the sum of the following amounts:
(A) An amount equal to all amounts paid or accrued to the taxpayer as interest during the taxable year to the extent excluded from gross income in the computation of taxable income; ***.” Ill. Rev. Stat. 1977, ch. 120, par. 203(b).

State and municipal bonds are exempt from Federal taxation. (Int. Rev. Code sec. 103.) For Federal tax purposes, all interest paid during the taxable year is excluded from gross income. The Code does not permit any deduction for amortized premiums on tax-exempt bonds, though it allows such a deduction for taxable bonds. The Code requires amortization of premiums of tax-exempt bonds, however, to adjust the basis of the bonds. (Int. Rev. Code sec. 1016(a)(5).) These provisions regarding tax-exempt bonds maintain consistency in the Federal tax scheme. If the Code permitted a deduction for amortized premiums, it would be reducing taxable income for an expense attributable to earning tax-exempt income. Amortization of the premium to adjust the basis prevents the taxpayer from claiming a loss upon maturity of the bond. A contrary rule would give the taxpayer an indirect deduction of the amortized premium.

In the case at bar, the Department argues that section 2 — 203 clearly requires a taxpayer to add all interest payments excluded from his Federal gross income back into his State base income. In particular, the Code excluded all interest received from tax-exempt bonds. Since there is no deduction for amortized premiums under the Illinois Income Tax Act, the Department contends, the full amount of the interest payment must be included in the taxpayer’s base income. Citing Caterpillar Tractor Co. v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167, aff’d (1981), 84 Ill. 2d 102, 417 N.E.2d 1343, prob. juris, noted sub. nom. Chicago Bridge & Iron Co. v. Caterpillar Tractor Co. (1981), 454 U.S. 1029, 70 L. Ed. 2d 472, 102 S. Ct. 564, the Department argues that a deduction of amortized bond premiums is improper without specific legislative authority for the deduction.

Although the Department presents a strong argument, its position ignores the context of the add-back provision. The Illinois income tax is a tax on net income, not gross income. (Ill. Rev. Stat. 1977, ch. 120, par. 2 — 201.) Interest, of course, is a form of income derived from capital. If a taxpayer receives the face value of a municipal bond which he bought at a premium, he receives less than what he paid for that bond. If we follow the Department’s position, the difference is never accounted for: It is not a loss and the premium is never recouped or amortized. It is simply ignored. Ignoring the existence of a capital expenditure, however, is contrary to generally accepted principles of accounting.

Our determination of this issue reinforces the legislature’s intent to tax only net income. This requires no amendment to the Illinois Income Tax Act. The dissent makes much of the language of section 203(b). That language, however, provides no support for the dissent’s position. On the contrary, our decision upholds the clear language of the Act. Section 203(b) requires the taxpayer to add “amounts paid or accrued to the taxpayer as interest” to his base income, to the extent those amounts were excluded from Federal gross income. The Act does not require the taxpayer to add-back all amounts received from the bond issuer. He only adds federally tax-exempt interest. The question becomes, therefore, what is interest? Does it include all amounts received by a bondholder, even when the bond is purchased at a premium?

The process of amortizing bond premiums is merely a method to determine the interest a taxpayer receives from a bond. Taxation of the amount a bondholder receives from a bond issuer, without amortization of the premium, effectively taxes an amount in excess of the actual income from a bond. The amortized premium does not represent income or interest. It is a return of capital. As such, it is outside the scope of the Act. There is nothing in the Illinois Income Tax Act which demonstrates any legislative intention to tax the capital as well as the net income from a bond. Curiously, the dissent agrees with the definitional principles of amortization, interest and net income, yet maintains that any amount a taxpayer receives from a bond must be added to base income. This position is contrary to the language of the Act and generally accepted accounting principles.

The taxpayers here have not “deducted” the amortized premium from the interest they received from the bonds. They have calculated the interest they received and added that interest to their base income. By continually referring to the amortization of premiums as a deduction, the State and the dissent confuse the issue. This case requires us to interpret the word “interest” as it is used in the income tax act. The fact that the Internal Revenue Code permits a “deduction” of amortized bond premiums from Federal gross income for taxable bonds, but not tax-exempt bonds, is not determinative of this case. The Illinois Income Tax Act provides for a tax only on net income. The taxpayers in the instant appeal have not deducted anything from their net income. They have excluded an amount which, by all financial and accounting principles, does not represent any income. By amortizing the bond premium, the taxpayers have calculated the interest earned on the bonds. It is worth noting that the Code prohibits a deduction of an amortized tax-exempt bond premium only because such a deduction would be inconsistent with the Federal tax scheme: An expense that generated tax-exempt income would be deductible from taxable income. The Federal rule certainly does not imply that amortized municipal or State bond premiums are income. Such a result would contradict standard accounting practices and in turn produce a false picture of the taxpayer’s net income. We must presume, when the legislature refers to a term such as “interest” in an income tax act, that it is utilizing accepted financial and accounting definitions of that term. Therefore, the Illinois Income Tax Act’s mandate to add federally tax-exempt interest to a taxpayer’s base income must refer to the amount a taxpayer receives, minus the amortized premium for the bond. That result is his interest on the bond. This conclusion is supported by the language of the Act, as well as its stated overall purpose of taxing only net income. Ill. Rev. Stat. 1977, ch. 120, par. 2 — 201.

We hold, therefore, that a taxpayer may amortize the premium he pays for a State or municipal bond and that this amortized premium is excluded from his calculation of base income for State income tax purposes. Finally, although the circuit court of Rock Island County awarded its plaintiffs costs of the suit, those plaintiffs explicitly waived this issue on appeal. Therefore, we express no opinion on this point.

The judgments of the circuit courts of Will County and Rock Island County are affirmed.

BARRY, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

The majority opinion in this case usurps the function of the Illinois General Assembly. Not liking the result of the unambiguous language of the Illinois Income Tax Act, this court chooses to rewrite the statute (Ill. Rev. Stat. 1977, ch. 120, par. 1 — 101 et seq.).

The problem arises in this way. The Illinois income tax is based on the Federal income tax return filed by the taxpayer. The Illinois tax rate is applied to the taxable income as shown on the Federal return. That is both simple and straight-forward. The Illinois law provides for an addition to the taxable income figure before applying the rate, however, in one circumstance. That is, since the interest income earned from State and municipal bonds is excluded from the Federal tax return, Illinois law requires that such bond interest be added in before computing the Illinois income tax. Nothing complicated there.

What is the problem in this case?

The plaintiffs in this case are banks. They regularly buy and sell State and municipal bonds as part of their banking investments. Because of the nature of the bond market, they often pay more than par value for bonds. The additional sum is called a premium. When market interest rates drop below the stated interest on the bond, the bond itself sells at a premium above par. When market interest rates rise above the stated interest on the bond, the bond sells at a discount below par.

In filing and paying their Illinois income tax, the banks in this case reduced their bond interest income on State and municipal bonds by taking the amount of the bond premium, amortizing that premium, and then deducting it from the interest earned before reporting that interest.

The State argues that such deduction is not permitted by the Illinois Income Tax Act. The State is correct. The deduction is not in the law. This court has chosen to modify the statute by engrafting the claimed deduction into the law. The law does not countenance such an invasion of the legislative function by the judiciary. The doctrine of separation of powers militates against it. If this addendum is correct, why not reduce the rate of tax as well?

No one can dispute that good accounting principles would dictate amortization of bond premiums. That is well and good. Regrettably, however, good accounting principles have nothing to do with the problem. What we have here is nothing more than the simple matter of applying a tax rate to defined income. That is all. Concepts of good accounting principles cannot be used to change the result. As an indication of where the majority’s position could take us, it might also be argued that the banks should be allowed to deduct not only bond premiums but other overhead factors as well. Why not deduct utility costs, employee salaries and postage from bond interest earned? Would not that also be good cost accounting?

Having said that, I would add that the banks in this case make a plausible argument for amending the law. That amendment, however, should be made by the Illinois General Assembly. It cannot lawfully be made by this court.

Accordingly, I dissent.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY E. GULLEY, Defendant-Appellee.
    Fifth District
    No. 82—191
    Opinion filed December 22, 1982.

      David W. Hauptmann, State’s Attorney, of Harrisburg (Stephen E. Norris and Robert C. Cook, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Bruce D. Stewart, of Nelson & Stewart, of Harrisburg, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is a State appeal from an order granting a motion by defendant, Gary Gulley, to suppress evidence. Defendant was charged by information with unlawful possession of a controlled substance, pentobarbital.

The facts are undisputed. On September 17, 1981, at approximately 3:17 a.m., Deputy James Wheatcroft and Special Deputy Joey DeNeal of the Saline County sheriff’s department were patrolling in their squad car in the city of Harrisburg, Illinois, when they observed a vehicle traveling at a high rate of speed on the wrong side of the street on Jackson Street. The officers pursued the vehicle for a few blocks. They then observed the vehicle turn east on Towle Street, travel approximately one-half block, and stop. The officers next observed defendant exit the driver’s side of the vehicle, stumble and nearly fall. Deputy Wheatcroft smelled alcohol on defendant’s breath and observed that defendant’s eyes appeared glassy. Defendant was then placed under arrest for driving under the influence of intoxicating liquor.

Deputy Wheatcroft advised defendant that he was going to be transported to the county jail and that he could either leave his vehicle and have it towed in or allow Special Deputy DeNeal to drive the vehicle to the county jail. Defendant indicated that he would allow Special Deputy DeNeal to drive his vehicle and handed the keys to Officer DeNeal. Deputy Wheatcroft then drove defendant to the Saline County jail in the police squad car, and Special Deputy DeNeal drove defendant’s vehicle there.

At the county jail, Deputy Wheatcroft proceeded to book defendant, advised him of his rights, and requested that he submit to a breathalyzer test. After calling an attorney, defendant agreed to take the breathalyzer test. At no time subsequent to his arrest was defendant allowed access to his vehicle.

While Special Deputy DeNeal was getting out of defendant’s vehicle after driving it to the county jail, he kicked something on the floorboard. He related that he picked up the object, which was an opaque black plastic cannister. Officer DeNeal shook the bottle and heard a rattling noise. Officer DeNeal said he opened the container out of “curiosity” and because he, in his capacity as dispatcher for the sheriff’s office, “got some calls from a subject advising *** me that [defendant] and another subject *** were selling drugs.” Special Deputy DeNeal discovered that the bottle contained pills which subsequently were identified as pentobarbital, a barbiturate.

Special Deputy DeNeal, after finding that the container on the floor of defendant’s vehicle contained pills, replaced the lid on the container and put it back where he had found it. He then went into the county jail and upon his first opportunity, advised Deputy Wheat-croft of what he had found. By that time, Deputy Wheatcroft had administered a breathalyzer test to defendant, which showed that defendant had .08% by weight of alcohol in his blood. Deputy Wheat-croft and Special Deputy DeNeal then left the county jail building, went to defendant’s automobile, and retrieved the bottle containing the pills.

The trial court’s order stated, inter alia, that: (1) at the time of the search by Special Deputy DeNeal, there was no probable cause to justify a warrantless search of defendant’s vehicle; (2) the search was not justified under the automobile exception to the warrant requirement “for the reason that at the time of the search the Defendant did not have access to the vehicle, did not even have the keys to the vehicle, and due to his arrest for driving while under the influence of intoxicating liquor would not have been allowed access to the vehicle that evening”; and (3) the search was not incident to arrest “because the search was conducted outside the presence of Defendant, the area searched was not within the immediate control of the Defendant, and the officers testified that at the time of the search they were not in any way in fear for their safety.”

There are two issues presented for review: (1) whether there was probable cause to search the container found in defendant’s car; and (2) whether the search of the container was incident to arrest.

The State argues that because there was probable cause to search defendant’s vehicle, the police, under United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, could search the container found inside the automobile. It is argued that the following factors gave rise to probable cause which justified a search of the container discovered by Special Deputy DeNeal: (1) defendant was intoxicated when arrested; (2) the container was suspicious because it was opaque, not labeled, and it rattled when it was shaken; and (3) the container was found on the floorboard of the automobile, which suggests that it was deliberately hidden.

Defendant responds that there was no probable cause to search the container found in defendant’s automobile and, therefore, under Ross, the search was prohibited. We agree with defendant.

The trial court’s decision regarding a defendant’s motion to suppress will not be disturbed unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869, 871.) In Clark, our supreme court summarized the applicable law as follows:

“It is well recognized that a warrantless search of an automobile may be permissible where the searching officer has probable cause to believe that the vehicle contains contraband. (See United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42; Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) To establish probable cause to search it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) *** As stated recently in United States v. Ross (1982), 456 U.S. 798, 824, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172:
‘The scope of a warrantless search of an automobile *** is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’
(See also New York v. Belton (1981), 453 U.S. 454, 460-61 n.4, 69 L. Ed. 2d 768, 775 n.4, 101 S. Ct. 2860, 2864 n.4.)” (92 Ill. 2d 96, 99-100, 440 N.E.2d 869, 871-72.)

In Ross the court held “that the scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 456 U.S. 798, 825, 72 L. Ed. 2d 572, 594, 102 S. Ct. 2157, 2172.

Under the circumstances of this case, we find that the trial court correctly refused to apply the automobile exception to the warrant requirement because at the time Special Deputy DeNeal searched the black plastic bottle found in defendant’s vehicle, there was nothing that would justify a reasonable person in believing that the automobile contained contraband. Further, the fact that defendant appeared to be drunk and that the container discovered was opaque, rattled, and was on the floor of the vehicle is insufficient reason to justify a search of the container. Special Deputy DeNeal testified that he opened the container out of “curiosity” and because he had received “some calls from a subject” that defendant had been selling drugs. Needless to say, curiosity will not justify a search. Moreover, the mere fact that Special Deputy DeNeal received information from an unidentified informant that defendant may have been involved with drugs will not, without more, justify the search. (See Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509.) There is nothing in the record before us which indicates that the informant suggested that drugs could be found in defendant’s car or that the informant was credible or reliable. Special Deputy DeNeal opened the container that he accidentally discovered in defendant’s car essentially because he was curious to see whether it contained drugs. This does not amount to probable cause.

The State alternatively maintains that because the evidence inevitably would have been discovered during a subsequent investigation, the evidence should be admitted. We reject the State’s invocation of the “rule of inevitable discovery” (People v. Ruberto (1980), 81 Ill. App. 3d 636, 639, 401 N.E.2d 1306, 1308-09) because the discovery was not necessarily inevitable. The State’s argument presupposes that the officers would have searched defendant’s automobile due to the fact that defendant’s breathalyzer test showed that defendant had .08% by weight of alcohol in his blood. This breathalyzer result gives rise to no presumption that defendant was under the influence of intoxicating liquor but allows an inference that defendant had been drinking. (See Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.) While there was evidence that defendant had been drinking alcohol, the record shows no objective reason for the officers to conclude that defendant was driving under the influence of anything other than alcohol. Nothing in the record indicates that the officers suspected that defendant was under the influence of a drug other than alcohol until after the pills were found in the black plastic bottle. Therefore, the discovery of the contraband cannot be said to have been inevitable.

The State points out that under New York v. Belton (1981), 453 U.S. 454, 457, 69 L. Ed. 2d 768, 773, 101 S. Ct. 2860, 2864, a lawful custodial arrest allows a contemporaneous warrantless search of the arrestee and the passenger compartment of the car being used by the person arrested. It is argued that the search of the container found in the vehicle was incident to arrest and no warrant was required.

Defendant maintains that the trial court properly concluded that there was no contemporaneous search incident to arrest in the instant case. The trial court observed at the conclusion of the suppression hearing that neither of the bases for the “search incident to arrest” exception to the warrant requirement applied under the circumstances presented. We agree with the trial court’s conclusion. The reasons for allowing a search incident to arrest is that it serves to protect the police officer from danger and prevents the destruction of evidence. (Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) Since neither of these justifications was present in the instant case, we conclude that the trial court did not err in refusing to apply this exception to the warrant requirement.

For the reasons stated, the order of the circuit court of Saline County is affirmed.

Affirmed.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE JONES

text:
    EDWINA B. MARTIN, Plaintiff-Appellee and Cross-Appellant, v. MY FARM, INC., et al. Defendants-Appellants and Cross-Appellees.
    Fifth District
    No. 82—139
    Opinion filed January 7, 1983.

      Richard G. Hershey, of Hershey, Bliss, Beavers, Periard & Romano, of Taylorville, for appellant My Farm, Inc.
    Robert W. Dodd, of Fuchs, Dodd, Fuchs & Bawden, of Virden, for appellants Carl Spengler and Dianne Spengler.
    Daniel W. Austin, of Miley, Meyer, Austin & Spears, P.C., of Taylorville, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This case arose out of a boundary dispute which resulted in an action for ejection. In dispute is the boundary running north and south between the east line of the tract owned by the plaintiff, Edwina Martin, and the west line of the tract owned by defendant, My Farm, Inc. (hereinafter My Farm). Defendants Carl and Dianne Spengler are purchasing the tract owned by My Farm under a contract for deed.

Plaintiff sought possession of the strip of land in question and damages. In defense My Farm asserted the existence of a boundary line established and undisputed for 40 years. The Spenglers asserted both adverse possession and the existence of a recognized boundary line in place on the premises for a period in excess of 20 years. The Spenglers counterclaimed, seeking dismissal of plaintiff’s complaint at the cost of plaintiff and entry of an order establishing the boundary line as recited in the countercomplaint. In a bench trial the trial court found that the adverse possession of the defendants had commenced in 1966 and that the defenses and counterclaim had failed. The court found plaintiff entitled to possession of the disputed strip but not to damages and, accordingly, awarded possession to plaintiff. All defendants have appealed raising several issues, and the plaintiff has cross-appealed on the issue of damages. In view of the disposition we make in this case we set forth only those facts relevant to the issue of adverse possession.

At one time plaintiff owned both tracts, having inherited them as one property in 1909 at the age of two from her father. In 1925 or 1926 her guardianship ended with her marriage. In 1934 she conveyed a tract on the east part of her property to her mother, Beulah Turner. The description in the deed was “19 acres off of the East side of the West half of the Southeast quarter of Section 32, ***.” In 1966 Pasquo Podeschi, president of My Farm, bought the east tract at auction. In 1977 the Spenglers bought the east tract from My Farm under a contract for deed.

The property had been used as farmland apparently since at least 1909 and has been farmed by tenants almost all of that time. The tenants — often a common tenant for both tracts — farmed up to a fence running north and south, paying rents to the owner of each of the two tracts according to the location of the fence. Thus, the owner of the east tract received rents based upon the crops raised to the east of the fence, and the owner of the west tract, that is, plaintiff, received rents based upon the crops raised to the west of the fence. At one time the fence extended approximately half a mile, from the north boundary to the south boundary of the plaintiff’s original property. At the time of trial only about 40 yards of the fence remained, the rest having been removed. The section of the fence that remains extends north from the south boundary of the property. Between the northernmost part of the fence and the north boundary of the property a crop or tillage line appears. In 1980 at plaintiff’s request the east line of the west tract was surveyed. The survey placed the east side of plaintiff’s tract approximately 80 to 90 feet east of the fence. Plaintiff thereupon brought suit in ejectment to recover possession of the 80 to 90 foot strip. The plaintiff also sought damages for rent for the disputed strip from the date of the survey to the time of trial.

Plaintiff testified that she and her mother usually had a common tenant who farmed both tracts. She said that Dillon Pyle, who had died in 1966, had farmed the land for her commencing in the thirties. At no time had plaintiff lived on either of the two tracts. She said that she and her tenants had never discussed the location of her property lines, that she did not know how the property lines had been set, and that she and her mother had never had an agreement as to where the property lines would be. She stated that' she had never had any dispute with Pasquo Podeschi or Carl Spengler with regard to the boundary line. The crop line, she said, had remained the same from 1926 to 1980. She indicated that the fence line had been there as long as she could remember. She stated that the purpose of the fence was to keep in hogs and that the fence had no other purpose. Asked upon redirect examination to explain what she had meant by her earlier use of the term “boundary line,” she answered, “Well, I assume that division between the two places.” Upon recross by the attorney for the Spenglers the following colloquy took place:

“Q: And you said in response to [plaintiff’s attorney’s] question as to what you meant by boundary line that you meant that to be, you assumed the division between the two places.
A: I guess; yes, I did assume.
Q: And that, that division that you’re talking about is the fence that’s depicted in Plaintiff’s Exhibit 2, is that right?
A: Right.”

Plaintiff indicated that she had received a “notification” from “the Assessors [sic] Office that I was not reporting the right number of crop acres. Therefore, I assumed it was my duty to get it surveyed and get the right boundary line.”

Testifying for plaintiff, Dave Hohn, the farm manager at the bank which had managed plaintiff’s farm at least since 1968, said that plaintiff had been receiving income from the acreage up to the fence. He stated that a tenant “would know what the accepted division line was.”

Testifying for the defendants was Howard Pyle, son of Dillon Pyle, both of whom had farmed the two tracts. At the time of trial in 1981 Howard Pyle was 45 years old. He testified that at the age of two, that is, in 1938, he had begun to reside on the west tract, that by the time he was nine or 10 years old he was helping his father with the field work, and that by the age of 15 he was doing all the planting. He lived on the west tract until 1968. In the early fifties he and his father began to farm both tracts, and the witness continued to do so until Pasquo Podeschi purchased the east tract in 1966. The witness farmed the west tract until 1968. He said that in approximately 1951 there was a fence extending “all the way from the south end to the north end except for two gaps,” which together amounted to a total of about 140 feet. He stated that the fence was absolutely necessary in order to conduct the “hog operation.” He classified the fence as a “division fence.” He and his father apparently removed part of the fence leaving two posts in the middle so that they would have “something to go by.” They also left a post on the fence line at the north boundary of the property. The witness called this post the “corner post” and described it as “a little bigger than the other posts,” saying that “we left it so it would be the corner of the property line that we knew.” At the time of trial, of these posts only the “corner post” remained. The witness testified that he had farmed as close to the fence as possible, stating that he had farmed the property on the east side of the fence for Ralph Turner, Beulah Turner’s husband, and that he had farmed the property on the west side of the fence for Martin. He said that “the money from the grain sales and everything on the east side went to Turner” and “the money from everything on the other side went to Martin.” No one, he said, had ever told him where the boundary line was. He had merely assumed that the fence, which he described as “straight,” was the boundary line.

Pasquo Podeschi testified that he was aware of the fence in 1937 and in 1938 when he went to speak to Dillon Pyle about doing some work for him. He stated that Dillon Pyle first farmed plaintiff’s property and later farmed both tracts, he said that when he farmed the area where there was no longer any fence, he “sighted” to the post earlier described as the corner post. He described the division line where there is no longer any fence as a little grassy ridge. He said that he had never farmed across that ridge and that plaintiff’s tenant had never, to his knowledge, farmed across the line.

Also testifying for defendants was Everett Ayers, plaintiff’s tenant since 1968. He testified that he farms only up to the fence and that he had farmed for Pasquo Podeschi for two years and had farmed only up to the fence on the other side. He said that, to his knowledge, the line had never changed, the northernmost point being the wooden post earlier described as the corner post. He said no one had directed him to any line to which to farm but that he had just farmed to “that assumed line,” based upon a map provided when he rented the farm. Of the area described by Pasquo Podeschi as a grassy ridge, the witness said that “it’s just pretty flat.” To determine where to farm in the area where there is no fence he would, he said, “drive as straight as you could from one post to the other one,” the fence posts being the lone fence post, or “corner post,” at the north line of the property and the northernmost fence post of the fence that remains. The line created by so driving his tractor would not be perfectly straight but “you wouldn’t get off more than probably 20 inches. That might just be a bow in the middle.”

We conclude from our examination of the record, particularly the testimony of the plaintiff, that the boundary line was mistakenly thought to be the fence line until 1980 when the east line of plaintiff’s tract was surveyed. In Joiner v. Janssen (1981), 85 Ill. 2d 74, 421 N.E.2d 170, where the parties mistakenly believed that the boundary line was a certain tree and bush line, the court discussed the effect upon claiming title adversely when possession is taken under mistake or ignorance concerning boundary lines:

“As we earlier noted, the possession forming the claimed ownership in the present case was based upon the mistaken belief of the parties that the boundary was the tree and bush line. In these circumstances some jurisdictions have applied a subjective test, holding that the intention of the possessor is the controlling factor in determining whether possession to a mistaken boundary is hostile. Thus, if a landowner through mistake or ignorance takes possession to a boundary beyond the true line intending only to claim to the true line and not intending to claim the additional land if it should be ascertained that the boundary is not as he thought it, then such possession is not adverse or hostile. (Annot., 80 A.L.R.2d 1171, 1174 (1961).) Elsewhere, including Illinois, occupancy to a visible and ascertained boundary for the statutory period is deemed the controlling feature in determining hostility in mistaken-boundary cases. (Walter v. Jones (1958), 15 Ill. 2d 220; Cassidy v. Lenahan (1920), 294 Ill. 503; Hellman v. Roe (1916), 275 Ill.158; Rich v. Naffziger (1911), 248 Ill. 455; Daily v. Boudreau (1907), 231 Ill. 228; Krause v. Nolte (1905), 217 Ill. 298, Hubbard v. Stearns (1877), 86 Ill. 35; Annot. 80 A.L.R.2d 1171, 1183 (1961).) The difficulty with the subjective test is that it affords no protection to the landowner who innocently and mistakenly occupies and improves land beyond his boundaries. He can never acquire title thereto. Conversely, he who deliberately sets out to steal adjacent land may succeed. Consequently, ‘[i]n a growing number of jurisdictions occupancy to a visible and ascertained boundary for the statutory period is deemed the controlling feature in determining hostility in mistaken boundary-line cases. Thus, it is held with increasing frequency that an open, notorious, and hostile possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse possession, and the fact that the possession was taken under mistake or ignorance as to boundary lines is immaterial.’ 3 Am. Jur. 2d Adverse Possession sec. 39, at 125-26 (1962).” (85 Ill. 2d 74, 82-83, 421 N.E.2d 170, 174-75.)

Because the claim to ownership need not be spoken or supported by title documents, as one’s actions are able to convey adequately the intent to claim title adversely to all persons including the titleholder, what the property description in a deed held by the adverse possessor excludes or includes is irrelevant to the issues of adverse possession. Joiner.

What is essential to establish title under the twenty-year doctrine of adverse possession (Ill. Rev. Stat. 1981, ch. 83, par. 1) is the concurrent existence of the five elements of adverse possession for 20 years: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, and (5) under claim of title inconsistent with that of the true owner. (Joiner.) As was said in Joiner,

“The ‘hostile’ nature of the possession does not imply actual ill will, but only the assertion of ownership incompatible with that of the true owner and all others. [Citation.] ‘Where there has been an actual, visible and exclusive possession for twenty years it is not essential to the bar of the Statute of Limitations that there should have been any muniment of title or any oral declaration of claim of title, but it is sufficient if the proof shows that the party in possession has acted so as to clearly indicate that he did claim title, [sic] ‘No mere words could more satisfactorily assert that the defendant claimed title than its continued exercise of acts of ownership over the property for a period of twenty years does. Using and controlling property as owner is the ordinary mode of asserting claim of title, and, indeed, is the only proof of which a claim of title to a very large proportion of property is susceptible.” [Citations.] *** Such improvements or acts of dominion over the land as will indicate to persons residing in the immediate neighborhood who has the exclusive management and control of the land are sufficient to constitute possession. [Citations.]’ ” 85 Ill. 2d 74, 81-82, 421 N.E.2d 170, 174.

Presumptions exist in favor of the owner of title, and the burden of proof on the adverse possessor requires proof of each of the five elements by clear and unequivocal evidence. (Joiner.) In a case where an adverse possessor is claiming to a mistaken or disputed boundary line, the location of the boundary must be established by clear and convincing proof. (Joiner.) In Joiner the court, quoting, described the nature of that proof:

“ ‘The proof must be such as to establish with reasonable certainty the location of the boundaries of the tract to which the five elements of adverse possession are applied and all of the elements must extend to the tract so claimed. While it is not necessary that the land should be enclosed by a fence, the boundaries must be susceptible of specific and definite location.’ ” 85 Ill. 2d 74, 83, 421 N.E.2d 170, 175.

Bearing these principles in mind, we think that the defendants have satisfied their burden of proof as to the boundary line they claim. Although possession was much of the time not actually in the adverse possessor but in a tenant farming the land, the possession of the tenant was in the interest of his landlord, and the landlord may be said to have been in possession through the tenant. Furthermore, receipt of rents by the adverse possessor from the tenant was an exercise of an act of ownership, a use and control of the property consistent with a claim to the ownership of it.

In view of the fact that the trial court found the adverse possession to have begun in 1966, the court seems to have concluded that such possession began with the transfer of title apparently out of Beulah Turner’s estate. However, nothing changed at that time except the name of the title holder. With regard to the possession of the land and the disposition of the rents, the land continued to be farmed to the fence and the rents paid accordingly. Although the trial court did not state expressly that there could be no adverse possession by the mother against the daughter, such an assumption seems implicit in the court’s finding that the adverse possession began in 1966, the year when title was transferred to a third party. There is, however, nothing in the record to suggest that a fiduciary duty existed between mother and daughter, who was an adult at the time she conveyed the property to her mother. For this reason adverse possession could have begun and did, in fact, do so before the transfer of title in 1966. The evidence suggests that the adverse possession probably began when the property was conveyed in 1934. Even if the evidence was found to show that adverse possession did not begin until 1951, for example, when Howard Pyle, at the age of 15, began to do all of the planting for his father while the fence was nearly intact, or even until 1956, after he and his father had begun to farm both tracts, farming to the fence line and the disposition of rents in accord with that line continued without complaint until 1980, a period of time well exceeding the requisite statutory period of 20 years.

In view of our disposition of the question of adverse possession we need not consider the other issues defendants raise or the issue of damages plaintiff raises in her cross-appeal.

Reversed.

WELCH and EARNS, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE LEE PATTON, Defendant-Appellant.
    Third District
    No. 82-449
    Opinion filed January 13, 1983.

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

delivered the opinion of the court;

This is a case of statutory interpretation.

The defendant, Willie Lee Patton, entered an automobile that did not belong to him for the purpose of stealing it. He was intercepted by a policeman during the attempted car theft and was arrested. He had a screwdriver on his person. The hood of the car was open. The steering column had been damaged. A search of Willie’s Cadillac parked nearby disclosed six more screwdrivers, automotive lug nut keys, channel lock pliers, and a punch.

Willie was found guilty of the offense of possession of burglary tools, section 19 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 2). The statute in question provides that a person commits the offense of possession of burglary tools when he possesses any instrument suitable for use in breaking into a motor vehicle with intent to commit therein a felony or theft.

The State is required to prove (1) that the tools were adapted for breaking and entering; (2) that defendant possessed them with knowledge of their character; (3) that he intended to use them for breaking and entering; and (4) that he possessed the requisite intent to commit therein a felony or theft. That is all.

Defendant asks that we reverse his conviction for possession of burglary tools because of his contention that the statute contemplates a theft of something from within the car but not the car itself. That is to say, if defendant had intended to steal a package from the car seat, he would be guilty. But if he intended merely to steal the entire car, he would not be guilty.

On first impression, this argument seems silly. Upon further consideration, this initial impression is confirmed.

In the case at hand, it is undisputed that the defendant entered the motor vehicle without authority and with the intent to steal it. He possessed the requisite tools. His argument turns on the interpretation of the phrase, “to commit therein a felony or theft.” “Therein,” he maintains, means taking something from the vehicle but not the vehicle itself. This assertion will not stand analysis. The car theft would have been complete at the time he started the engine and drove it off. Unless he had some plan to drive the car by remote control from a point removed from the interior of the car, it would have to be concluded that the act of theft was to be committed within the vehicle: “therein” as the statute reads.

We believe it is clear that the conduct of the defendant falls within the proscription of the possession of burglary tools statute.

Accordingly, we affirm.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN M. TAYLOR, Defendant-Appellant.
    Second District
    No. 81—920
    Opinion filed January 19, 1983.

      Benedict J. Ori, of Waukegan, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Cheri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

Defendant, Stephen M. Taylor, was found guilty after a jury trial of committing the offense of battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3) upon a police officer and was sentenced to 2Pa months’ supervision. He appeals, contending an instruction tendered by him was erroneously refused and that the offense of battery may not be found where defendant was unlawfully arrested while engaged in protected first amendment activity.

Officer Michael Donnenwirth of the Waukegan Police Department testified that on August 24, 1981, he was dispatched to a street corner in the city where he encountered defendant preaching and holding a Bible. The officer informed defendant that a complaint had been received concerning his activities, and defendant thereupon became loud and angry. Donnenwirth placed defendant under arrest, and a struggle ensued during which defendant fell to the ground. As Donnenwirth reached down toward defendant, defendant twice tried to kick him and then punched the officer in the jaw. Donnenwirth responded by punching defendant in the nose, breaking it.

During the conference on instructions, defendant tendered an instruction drawn substantially from the first amendment to the United States Constitution (U.S. Const., amend. I), setting out the rights to freedom of religion, speech and peaceable assembly. The trial court refused the instruction, and defendant contends on appeal that this ruling was error.

Police officers have been conferred by law (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 2) with authority to make arrests, and the act of making an arrest is authorized to the extent that a person may not use force to resist or obstruct an arrest, even though it may be an unlawful arrest. (People v. Shinn (1972), 5 Ill. App. 3d 468, 283 N.E.2d 502; see Ill. Rev. Stat. 1981, ch. 38, par. 7—7.) Contrary to defendant’s claim on appeal, this concept is not limited to prosecutions for resisting arrest. The rule that a person may not resist even an unlawful arrest made by one known by him to be a police officer has been applied with equal force in prosecutions for aggravated battery (People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950; People v. Paez (1977), 45 Ill. App. 3d 349, 359 N.E.2d 1083; People v. Gnatz (1972), 8 Ill. App. 3d 396, 290 N.E.2d 392), and neither the language of the statute from which this rule is derived (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 7), nor the Committee Comments (Ill. Ann. Stat., ch. 38, par. 7 — 7, Committee Comments, at 422-23 (Smith-Hurd 1972)) suggest it is not applicable to the offense of battery. The tenor of the proffered defense instruction was to inform the jury that it might consider in its deliberations the question of whether defendant’s first amendment rights were being violated at the time he admittedly struck Officer Donnenwirth. Inasmuch as such a consideration did not constitute a defense to the charge of battery, the instruction was properly refused.

In addition, the instruction as offered was defective in form. It merely informed the jury of certain of the fundamental freedoms embodied in the first amendment to the United States Constitution and did not, either alone or in conjunction with any other instruction, purport to guide the jury’s deliberations further in the event it decided that the Constitution had been violated. Instructions on abstract legal principles which fail to relate those principles to the case in a manner which assists the jury in its resolution of the issue to be decided are improper. (See Dezort v. Village of Hinsdale (1979), 77 Ill. App. 3d 775, 396 N.E.2d 855.) Accordingly, there was a second basis upon which the trial court might properly have refused the instruction in question.

Defendant also contends that the evidence adduced at trial failed to prove his guilt beyond a reasonable doubt. In support of this argument, he asserts that his act of striking Officer Donnenwirth was provoked by the officer’s interference with his first amendment rights. Defendant contends that under such circumstances it was incumbent upon the State to prove as an element of its case-in-chief that the police officer had grounds for such interference.

Defendant cites no authority for this proposition, and we conclude that it cannot prevail. As previously noted, the law does not permit an individual being arrested by one known by him to be a police officer to respond with violence, even if the arrest is unlawful. (See People v. Carroll (1971), 133 Ill. App. 2d 78, 272 N.E.2d 822.) Although Carroll involved a prosecution for resisting arrest, rather than battery, the concept for which it stands is equally applicable to other offenses involving an offer of violence to a police officer. Accordingly, the lawfulness of defendant’s conduct at the time of the arrest and the unlawfulness of the arrest itself were not available defenses to the crime charged. In view of the police testimony, and defendant’s admission, that he struck Officer Donnenwirth first, the judgment of conviction was sustained beyond a reasonable doubt.

For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

HOPE and VAN DEUSEN, JJ., concur.


text:
    GEORGE CHANCE, Plaintiff-Appellee, v. THE CITY OF COLLINSVILLE, Defendant and Third-Party Plaintiff-Appellant.—(Don Garner, Third-Party Defendant-Appellant.)
    Fifth District
    No. 82—65
    Opinion filed January 7, 1983.

      James M. Radcliffe, of Sprague, Sprague and Ysursa, of Belleville, for appellant Don Garner.
    Michael J. Nester and Clark D. Smith, both of Donovan, Hatch & Constance, P.C., of Belleville, for appellant City of Collinsville.
    Charles E. Hamilton and N. Dean Nester, both of Belleville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On March 27, 1979, plaintiff, George Chance, filed a complaint under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69) (hereinafter referred to as the Act) against the city of Collinsville, Illinois (hereinafter referred to as the City). The complaint stated that on January 9, 1979, plaintiff suffered personal injuries while employed as a laborer to assist in excavation work in connection with tapping into the sewer lines of the City and that the City was in charge of this work within the meaning of the Act.

The City denied liability and also filed a third-party complaint seeking indemnification from Don Garner, the contractor who performed the excavation work. Mr. Garner, in his answer to the City’s complaint, denied liability.

After a three-day jury trial in November 1981, a verdict was returned against the City in the amount of $100,000. The jury also returned a verdict in favor of the City and against Mr. Garner on the third-party complaint, awarding the City full indemnification.

The City and Mr. Garner both filed post-trial motions which alleged, inter alia, that the trial court erred in failing to grant directed verdicts in their favor. These motions were denied. Both the City and Mr. Garner have appealed; Mr. Garner, in his brief, has elected to adopt the arguments of the City on appeal.

This appeal raises two issues: (1) whether the City was a person “having charge of” the work under section 9 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 69); and (2) whether an excavation is a structure within the provisions of the Act.

Louis Jackstadt, who was the sewer coordinator for the City at the time plaintiff was injured, testified at trial. Through his testimony it was established that on September 23, 1976, the City adopted Ordinance No. 1852 which specified the time and manner in which businesses and homeowners were to tap into a newly constructed sewer system. This ordinance provided that owners adjacent to sewer mains were to be notified that they had 90 days to tap into the system. It was the obligation of the business or homeowner to make arrangements to tap into the main sewer line. Owners were to apply for sewer service through the city clerk’s office and were required to obtain a permit to tap into the sewer system and to pay certain enumerated fees. Under Ordinance No. 1852, installations involving excavation of streets or public property required that the contractor who performed the work post a bond to restore the property to the satisfaction of the City. A list of properly bonded contractors was made available by the City but homeowners were not required to use those contractors. Ordinance No. 1852 further required that certain specifications be met regarding pipe size, pipe material and slope of the installed pipe. Connection of individual pipe lines to the sewer main was to be performed under the supervision of a representative of the City, and an inspection of the pipe line by a representative of the City was required before an excavation could be refilled.

Mr. Jackstadt indicated that on January 9, 1979, he was the only inspector employed by the City to inspect connections to the public sewer system and that on the day of plaintiff’s injury, he made two or three visits to the excavation site where the injury occurred. He said that a permit for the excavation work had been issued and stated that there was some problem'locating the portion of the main sewer where the connection was to be made. He recalled that it was a rather deep excavation with a depth of about 15 feet. Mr. Jackstadt said that he and Mel Heinicke, a building department inspector who shared a car with him, were standing next to the excavation when a side of the excavation suddenly caved in on plaintiff.

Don Garner testified that he contracted with a homeowner to install a sewer line which would connect a home in the 700 block of Staten Street to the city sewer main. Mr. Garner testified that the City had no part in the negotiation of the contract between the homeowner and himself, that he determined the amount he charged for the work, and that he supplied the equipment and materials for the project. Mr. Garner said that he employed plaintiff to assist with the excavation work and that plaintiff’s wages and working hours were determined by plaintiff’s union.

Mr. Garner stated that the City informed him of the location and depth of the tap-in point on the main sewer line and that he called the City every morning to let the City know he was working so that the City would send an inspector to the location. Mr. Garner’s testimony suggested that during working hours, plaintiff was under his physical control and that it was Mr. Garner who directed plaintiff as to when and how to dig in the excavation. Mr. Garner indicated that the City had nothing to do with directing plaintiff during working hours and that the city inspector’s responsibility at the excavation site was merely to inspect the placement and type of pipe.

Mr. Garner also testified that the City had prevented him from working on three occasions, once after he had broken a water line and on two other occasions when his work resulted in damage to roads located at the excavation site where he had been working. Mr. Garner said that it was his “feeling” that he worked at the pleasure of the City.

Mr. Garner testified that prior to the cave-in which caused plaintiff’s injury, there were two or three cave-ins at the excavation during the course of the day and that this information was never relayed to Mr. Jackstadt or any other city official. Mr. Garner said that just prior to the cave-in which caused plaintiff’s injury, Mr. Jackstadt was suggesting places to probe which might result in locating the tap-in site. Mr. Garner testified that the decision as to whether to shore up or use jacks to support the excavation was his and that the City never gave any directions regarding safety procedures.

Plaintiff testified that a city inspector, whose name was Sid Strotheheide, according to the record, showed him how to perform various operations on the job. He stated that the city inspector merely offered suggestions and did not order that the job be performed in a certain manner. Plaintiff said that Mr. Garner, not the City, directed the manner in which the excavation was to be dug and that the city representatives were at the excavation site merely for purposes of inspecting the work. Plaintiff also said that the City did not maintain an office at the jobsite. Plaintiff corroborated Mr. Garner’s testimony that Mr. Jackstadt was helping to locate the tap-in point at the time plaintiff was injured.

The City first maintains that it was not a person having charge of the work within the meaning of the Act. It is argued that under the applicable standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the trial court should have directed a verdict for the City in the case at bar. Specifically, the City argues that: (1) the fact that the City ordinance provides for specifications for the work to be performed and gives the City the right to inspect the work is insufficient to support a finding that the City was in charge of the work; (2) the evidence does not otherwise establish that the City was in charge of the work; and (3) policy considerations suggest that the City should not be held liable.

Plaintiff replies that whether the City was in charge of the work is primarily a question of fact for the jury and that, under the circumstances presented in this case, the jury’s finding that the City was liable was justified.

We first are required to determine whether the circumstances presented to the jury would give rise to a question of fact since a judgment in favor of plaintiff can be reversed only if the evidence, when viewed most favorably to plaintiff, so overwhelmingly favors defendant that no contrary verdict could stand. (Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 1147, 408 N.E.2d 1051, 1052-53.) The phrase “having charge of” found in section 9 of the Act has no specific legal meaning but, rather, has been referred to as a term of common usage and understanding. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323, 211 N.E.2d 247, 252.) Further, our inquiry upon review involves an assessment of the totality of circumstances. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 490, 394 N.E.2d 403, 407.

The appellate courts have identified a number of factors to be considered in determining whether a defendant has charge of the work under the Act. These factors are: (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; and (7) the right to stop the work. (Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 1147, 408 N.E.2d 1051, 1053; Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 142, 397 N.E.2d 451, 455-56.) Other factors include: (8) ownership of the equipment used on the jobsite; (9) defendant’s familiarity with construction customs and practices; and (10) whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. (Lyle v. Sester (1981), 103 Ill. App. 3d 208, 218, 430 N.E.2d 699, 707.) Considering the instant case in the light of these factors, we find that the evidence, under the totality of circumstances, is insufficient to warrant the imposition of liability upon the City.

First, we reject the contention that Ordinance No. 1852 provides criteria for determining whether the City was in charge of the work. The ordinance requires businesses and residents of the City to become part of a new sewer system. Additionally, the ordinance provides that contractors performing work on the sewer line obtain a permit, be bonded when public property is excavated, and comply with certain construction specifications. Most of these requirements are necessary to secure the health and safety of the community and, therefore, constitute a proper exercise of police power. (See City of Chicago v. Chicago & North Western Ry. Co. (1954), 4 Ill. 2d 307, 317, 122 N.E.2d 553, 558.) The ordinance is basically designed to ensure that the sewer system works properly and, consequently, that the health of city residents is protected. The bonding requirement imposed upon contractors working on the sewer line obviously is aimed at protecting public property. We cannot say that these provisions of Ordinance No. 1852, in the absence of any express or implied grant of authority to the City regarding supervision or control of an individual’s tap-in to the new sewer system, are relevant to a determination as to who is in charge of such work under section 9 of the Act.

We are aware of no cases which would justify the imposition of liability under the Act simply because a municipality has adopted an ordinance which protects the health and welfare of its citizens. While governmental entities may be liable under the Act (see, e.g., Norton v. Wilbur Waggoner Equipment Rental & Excavating Co.; Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E.2d 973), we find no authority for the proposition that a governmental unit may be liable under the Act merely because it has enacted laws designed to promote the health of its citizens; we conclude that the fact that it has done so will not, without more, provide a basis for determining who was in charge of the work for purposes of section 9 of the Act. To hold otherwise would, as the City points out, have the effect of making municipalities insurers of all structural work done pursuant to local health or safety ordinances regardless of the City’s actual involvement with a particular construction project. Such expanded liability would contravene the statutory requirement that liability be imposed only upon those who are in charge of the work. (See Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 1151, 408 N.E.2d 1051, 1056.) A municipality should not be held to be constructively in charge of work under the Act simply by virtue of the fact that that it has enacted laws which promote the health or safety of the community.

Having decided that liability cannot be premised upon Ordinance No. 1852, we turn to an examination of other factors which might indicate that the City was in charge of the work. We find virtually none. The City had no contractual involvement regarding the excavation where plaintiff’s injury occurred. The City had no supervision or control of the work and retained no right to supervise or control, it had no representative continuously on the jobsite, there were no subcontractors to supervise or coordinate, the City undertook no responsibility for taking safety precautions, there was no evidence that the City had the authority to issue change orders, and the City provided no materials or equipment for the project. Furthermore, there is no showing that the City was in a position to assure worker safety. Indeed, the testimony of Mr. Garner established that no city officials had knowledge of the cave-ins which occurred prior to the one which caused plaintiff’s injuries. It was Mr. Garner who, having notice of potentially dangerous conditions, should have acted to provide for worker safety.

Plaintiff urges that the evidence raises an issue of fact as to whether the City was in charge of the work under the Act. In this regard, plaintiff relies on Mr. Garner’s statement that the City had on three prior occasions stopped him from working until he had paid for repairs done to city property and that it was his impression that he worked at the pleasure of the City. Further reliance is placed on the testimony that there was a city sewer coordinator and building inspector at the excavation site the day of the injury. We are not persuaded by this argument of plaintiff. The contractor’s statement regarding his feeling that he worked at the pleasure of the City is both ambiguous and of questionable relevance. The fact that two city representatives were at the excavation at the time plaintiff was injured was a fortuitous circumstance which was not related to the City’s alleged control or supervision of the project. The city representatives were at the jobsite merely for inspection purposes. The evidence established that Mr. Jackstadt, the city sewer coordinator, was at the excavation solely to determine whether the tap-in to the main sewer line was correctly made, not to supervise or control the manner in which the tap-in was accomplished. The only factor which debatably allows an inference that the City was in charge of the work was the fact that the City could prevent the contractor from working. However, this alone is not enough to establish that the City was in charge of the work. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 490, 394 N.E.2d 403, 407; McGovern v. Standish (1976), 65 Ill. 2d 54, 68, 357 N.E.2d 1134, 1141.

Although we have discovered no comparable cases involving a city, we find the liability which plaintiff seeks to impose upon the City to be analogous to those cases where an action under the Act has been brought against an architect. In such cases, courts have refused to impose liability where the architect’s right to supervise and inspect was simply a duty to see that certain plans and specifications were met (McGovern v. Standish (1976), 65 Ill. 2d 54, 69, 357 N.E.2d 1134, 1142), and where the architect had no continuous jobsite representative and his representative’s visits to the jobsite had no connection with construction safety considerations. (See Hausam v. Victor Gruen & Associates; Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 401 N.E.2d 1287; Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 398 N.E.2d 60.) As in these cases concerning an architect’s liability, we find the evidence in the case at bar insufficient to warrant the imposition of liability upon the City.

From our review of the record before us, we conclude that the City’s relationship to the construction work in this case was .minimal and that under the Pedrick test, the trial court erred in refusing to direct a verdict for the defendants. In view of our decision, we need not consider the City’s alternative contention that the excavation was not a structure within the purview of the Act.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed and judgment is entered in favor of both defendants and against plaintiff.

Reversed.

HARRISON, P.J., and JONES, J., concur.


author: JUSTICE KARNS

text:
    WILLIAM F. McGREW, Plaintiff-Appellee and Cross-Appellant, v. LARRY MIX et al., Defendants-Appellants.—(Grace Mix, Defendant-Cross-Appellee.)
    Fifth District
    No. 82—145
    Opinion filed January 4, 1983.

      Ralph D. Glenn, of Glenn & Logue, of Mattoon, for appellants.
    John R. Meyer, of Meyer & Meyer, of Flora, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, William E McGrew, commenced this action in the circuit court of Clay County to recover $20,545.18 plus 7% interest on a promissory note executed by defendants, Larry Mix, Sandra Mix and Grace Mix. The trial court, sitting without a jury, entered judgment for plaintiff and against Larry and Sandra Mix in the amount of $27,598.11, and entered judgment in favor of Grace Mix and against plaintiff. Defendants’ post-trial motion to vacate judgment or, in the alternative, to modify the judgment was denied, and defendants, Larry Mix and Sandra Mix, now appeal. Plaintiff’s cross-appeal against defendant, Grace Mix, has been abandoned.

The material facts of this case are uncontroverted. On March 28, 1973, Larry and Sandra Mix, husband and wife, executed a promissory note payable to the First National Bank of Flora, Illinois. The note was in the amount of $26,200 and was payable in installments of $651.84 per month. Interest on the note was set at 8%. The note was payable on demand, or if not demanded, it was to be paid on March 29,1977.

Grace Mix, mother of Larry Mix, signed as an accommodation party at his request because the collateral offered as security was insufficient. Subsequent to the execution of the note, plaintiff married Grace Mix on November 11, 1973. After the marriage, Grace Mix informed plaintiff that she had co-signed the note.

In March 1975, defendant, Grace Mix, then Grace McGrew, received a letter from Roger Wells, president of the First National Bank, which advised her that payments on the note were in arrears. The letter suggested that she come in with the other co-makers to discuss the arrearage. From March 18, 1975, the arrearage increased from $5,220.40 to $6,775. Sometime during this period, plaintiff saw the letter sent by Mr. Wells to his wife.

Plaintiff discussed the note with Larry Mix, his stepson, but did not tell him or the other defendants that he intended to pay the note. On June 9, 1975, plaintiff went to the bank and paid $20,313.68 in principal and $213.22 in interest. Roger Wells, president of the bank, marked the note “paid, June 9, 1975, R.W.,” and gave the note to plaintiff. Plaintiff took the note home and placed it in a dresser drawer.

On June 26, 1975, defendant, Larry Mix, stated to plaintiff that he learned at the bank that plaintiff had paid the note, and inquired about what arrangements would be made for his payment of the note. Defendant wrote out a check to plaintiff for $300 as a payment on the note. Sometime thereafter, the note was delivered by either plaintiff or his wife to Larry and Sandra Mix. Plaintiff testified that this was done so that they would have the note for bookkeeping purposes.

Defendants, Larry and Sandra Mix, made payments on the note on October 30, 1975 — $281.57; December 17, 1975 — $513.33; January 27, 1976 — $513.33, and February 9, 1976 — $1,000. Plaintiff and defendant, Grace Mix, were separated on December 29, 1976, and were divorced on April 23, 1979. After plaintiff and Grace Mix were separated in December 1976, defendant Larry Mix stopped making payments on the note. Plaintiff asked defendant, Larry Mix, for payment of the note and when none was forthcoming, brought this suit.

On appeal, defendants, Larry and Sandra Mix, challenge plaintiff’s right to recover on the note under the several theories set forth in the complaint. The primary issue for review, we believe, is whether the plaintiff’s payment and receipt of the promissory note entitled him to recover on the note from defendants under the Uniform Commercial Code. This case appears to be one of first impression in this State.

At the outset, we note that the trial court’s decision implicitly rests upon the finding that plaintiff’s payment of the note did not constitute a gift. This conclusion is well-founded upon the record which discloses that plaintiff and defendant, Larry Mix, discussed the note and that defendant testified that he knew that plaintiff expected him to pay on it. Plaintiff’s adjustment of the interest on the note from 8% to 7%, and defendants’ several payments on the note lend additional support to the court’s finding of fact.

The evidence further establishes that on June 9, 1975, plaintiff went to the First National Bank and paid the promissory note which defendants had executed. After receiving this payment, Roger Wells, the bank president, stamped the note “paid,” put his initials and the date on it and handed it to plaintiff. On the basis of these facts, plaintiff contends that he acquired the bank’s rights in the note including the right to demand payment.

In support of his position, plaintiff cites section 3 — 603(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 603(2)) which provides:

“Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee. (Section 3 — 201.)”

The rights of a transferee are discussed in section 3 — 201 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 201):

“Transfer of an instrument vests in the transferee such rights as the transferor has therein ***.”

Section 3 — 603(2) of the Uniform Commercial Code represents a marked departure in the law as it previously had been under the Negotiable Instrument Law. The official comments to that section state that the original sections 171 through 177 of the Negotiable Instrument Law (Ill. Rev. Stat. 1961, ch. 98, pars. 192 through 198) provided for payment of a draft “for honor” after protest. (Ill. Ann. Stat., ch. 26, par. 3 — 603(2), Uniform Commercial Code Comment, at 398 (Smith-Hurd 1976).) It provided a method by which a third party might intervene to protect the credit of the drawer and at the same time protect his own rights. Under the prior law, a payment for honor in order to operate as such and not as a mere voluntary payment was required to be attested by a notarial act of honor. The drafters of the Restatement of Restitution recognized this rule stating in section 117(2):

“(2) A person who pays a negotiable bill of exchange which has been protested for nonpayment, declaring that he does so for the honor of a party thereto whom he names and having this attested by a notarial act of honor, is entitled to restitution from the person for whose honor he made payment.” Restatement of Restitution sec. 117(2) (1937).

With the elimination of “payment for honor,” section 3 — 603(2) provides that any person may pay with the consent of the holder. In addition, subsection 2 states that the surrender of the instrument to such person gives him the rights of a transferee. Plaintiff contends that the promissory note was surrendered to him when the bank handed the note to him. Defendants challenge this contention and maintain that surrender did not occur because the note was not endorsed by the bank.

“Surrender” as used in section 3 — 603(2) is not defined in the Code nor in Illinois case law. In the absence of such definition, defendant concludes that the most logical approach is to assign “surrender” the same meaning as “transfer,” a term which is discussed in section 3 — 201. Section 3 — 201(3) provides:

“Unless otherwise agreed any transfer for value of an instrument not then payable to bearer gives the transferee the specifically enforceable right to have the unqualified indorsement of the transferor. Negotiation takes effect only when the indorsement is made and until that time there is no presumption that the transferee is the owner.” (Ill. Rev. Stat. 1981, ch. 26, par. 3-201(3).)

Defendants contend that plaintiff cannot be presumed to be the owner of the note because it lacked the indorsement of the bank as required by section 3 — 201(3). Furthermore, defendants contend that plaintiff’s failure to secure the bank’s indorsement is evidence that he lacked the authority to do so. We find both propositions to be without merit.

We believe the word “surrender” should be read in the context of section 3 — 603. This section permits any person with the consent of the holder to make payment of a negotiable instrument. Upon payment and surrender of the paper, the payor succeeds to the rights of the holder, subject to the limitation found in section 3 — 201 that one who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course. (Ill. Ann. Stat., ch. 26, par. 3 — 603, Uniform Commercial Code Comment, at 399 (Smith-Hurd 1976).) Defendants have not set forth any persuasive authority which suggests that the word “surrender” be given a technical meaning which would place an additional limitation upon section 3 — 603. Consequently, we find that plaintiff acquired the rights of a transferee including the right to demand payment on the note from its makers.

Defendants further argue that plaintiff should not be allowed to recover on the promissory note because the note was cancelled and the makers discharged under 3 — 605. Section 3 — 605 which governs discharge states in pertinent part:

“The holder of an instrument may even without consideration discharge any party
(a) in any manner apparent on the face of the instrument or indorsement ***.” (Ill. Rev. Stat. 1981, ch. 26, par. 3 — 605.)

Defendants maintain that the fact that the bank president wrote “paid” on the face of the note and placed his initials, “R.W.,” together with the date of payment is evidence that the promissory note was cancelled.

We believe that the bank president’s act of marking the note “paid” merely acknowledged receipt of payment from plaintiff and did not extinguish the underlying obligation. Section 3 — 603(2) would be rendered meaningless if the original payee were permitted to unilaterally discharge the maker upon payment by a third party. The party paying on the note essentially would become a transferee without one of the principal rights of a transferee, that is, the authority to enforce the note according to its original tenor. Accordingly, we find that defendants were not discharged by the bank, and defendants, as makers, remain obligated on the note.

The remaining issues presented on review concern availability of traditional restitutionary principles as grounds for recovery. In count I of the complaint, plaintiff sought recovery under the theory of subrogation maintaining that he paid the note in order to protect his marriage and his wife’s health. Although defendants persuasively argue that the doctrine of subrogation is not available to one who voluntarily pays the debt of another, we need not address this issue because of the operation of section 3 — 603(2) of the Uniform Commercial Code discussed above. Similarly, we need not reach the issue of whether defendants ratified plaintiff’s payment of the note and are liable by virtue of a subsequent promise to pay as plaintiff alleged in count III of his complaint.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE NASH JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CLARENCE P. OLSON, Defendant-Appellee.
    Second District
    No. 81—929
    Opinion filed January 19, 1983.
    REINHARD, J., dissenting.
    Theodore J. Floro, State’s Attorney, of Woodstock (Gail A. Moreland, Assistant State’s Attorney, and Phyllis J. Perko and Judith Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order of the circuit court of McHenry County granting a motion by defendant, Clarence P. Olson, to suppress evidence seized by police from the home in which he was living. Defendant had been charged by complaint with possession of cannabis in excess of 500 grams. (Ill. Rev. Stat. 1979, ch. 56½, par. 704(e).) On appeal, the State contends the evidence in question was admissible as it was seized as the result of a search incident to a lawful arrest.

The search took place shortly after midnight on August 8, 1981, at the home where defendant resided with his two older brothers, located in Lake-in-the-Hills, Illinois. Sergeant James A. Wales testified at the suppression hearing that he was directed to defendant’s home by the police dispatcher to investigate complaints of loud music, and that upon his approach to the front door he heard loud music coming from the residence. Sergeant Wales was then joined by Office Alan Bokowski. The front door was open, but access to the interior of the house was barred by a closed screen door. Portions of the interior of the home were visible from the porch through several large windows.

Sergeant Wales knocked on the front door, and Officer Bokowski stood 15 feet to the side from where he could see into a window at the lower level of the house. Approximately two minutes elapsed before anyone came to the door, and during that interval, both officers stated, they saw a group of young people through a window, standing around in the lower level of the house. It appeared to the officers that a party was in progress and that all of these young people were under 21 years of age. The officers also observed that these persons were carrying or drinking beer.

The front door was eventually answered by Ron O’Rourke, who came upstairs toward the entryway with a beer bottle in his hand. O’Rourke laid the bottle down before coming to the door and was there questioned by Sergeant Wales. He stated that he was not the owner of the home, that he thought one of those present might be over the age of 21 and that the owner of the house was downstairs. Officer Bokowski then observed a flurry of activity downstairs, and the officers proceeded to enter the dwelling. As they went through the middle of the house, they passed a table containing a plastic pipe surrounded by a green leafy substance. They proceeded downstairs and there observed several people with beer, as well as numerous seeds on a table. Defendant identified himself to the officers as a resident of the house and produced a driver’s license showing his age as 17. Only one of those present, a nonresident of the house, identified himself as being over 21. Sergeant Wales then checked the downstairs area and, behind the bar, found a brown plastic bag containing what was later identified as marijuana. Wales testified that he had seen various individuals at the bar, but had not observed anyone behind it; Bokowski stated that he had seen one person behind the bar. Following defendant’s arrest, he was advised of his Miranda rights, and he made an inculpatory statement. None of those arrested were charged with alcohol-related offenses; Sergeant Wales administered a verbal warning at the police station and all except defendant were released without being charged with an offense. The officers had no search warrant and had not requested or obtained consent to enter the premises.

In ruling on the motion, the trial court stated that it believed the search had been foreplanned, even before the officers got near the house. The court also found no basis on which the police could have believed that the underage drinking law was being violated since the law (Ill. Rev. Stat. 1981, ch. 43, par. 134a) permits such conduct in a private home under parental supervision and since the officers could not reasonably believe that such permission had not been obtained. In its written order, the court further found that even if the arrest had been valid, the search and seizure were beyond the scope of the arrest. The court therefore found the warrantless search unreasonable and granted defendant’s motion to suppress. The State perfected this appeal by filing a timely notice of appeal and a certificate of impairment of its case.

Initially, the State argues that the trial court’s finding the search was foreplanned is erroneous. We agree. There is no evidence in the record to support that assumption. We conclude, however, that the evidence was properly suppressed on other grounds.

We consider first the State’s argument the evidence was validly seized in the home as incident to a lawful arrest and that the warrant-less, nonconsensual entry to effect that arrest was justified by exigent circumstances.

An officer may arrest a person without a warrant if he has reasonable grounds to believe the person is committing or has committed an offense (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c)). A misdemeanor is an offense for which an arrest may be made without a warrant. (Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 1032, 367 N.E.2d 478, 480.) In the present case the officers apparently considered under the facts known to them that the young persons they had viewed through the windows of the house were violating the statute which prohibits consumption of alcohol by anyone under 21 years of age (Ill. Rev. Stat. 1979, ch. 43, par. 134a), a Class C misdemeanor. That statute also provides, however,

“[T]he consumption by a minor [of alcoholic liquor] under the direct supervision and approval of the parents or parent of such minor in the privacy of a home, is not prohibited by this Act.” Ill. Rev. Stat. 1979, ch. 43, par. 134a.

The officers testified that during their observations through the windows of the house, they saw seven or eight persons who appeared to be less than 21 years old who were drinking beer. The officers also were advised by the young man who answered the door that he believed one person in the house was over 21 and that the owner of the house was downstairs in the three-level home. The officers thereupon entered the home for the purpose of arresting minors who were drinking and seized evidence found therein while doing so.

The trial court concluded that inasmuch as the officers had not sought to determine whether parents were present who had approved the conduct of the minors in the privacy of the home, the officers lacked reasonable grounds to believe the offense had been or was being committed and the arrest was improper.

We need not here determine whether the facts known to the officers when they made the arrest decision were sufficient to sustain it (see, e.g., People v. Coleman (1977), 50 Ill. App. 3d 1053, 364 N.E.2d 742), as, in either case, the circumstances did not permit their non-consensual entry into the home without a warrant to make an arrest for that offense.

The expectation of privacy in a private home is protected by the fourth amendment, and a warrantless entry without consent to effectuate an arrest may only be justified in exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 583, 63 L. Ed. 2d 639, 648, 100 S. Ct. 1371, 1378; People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543; People v. Klimek (1981), 101 Ill. App. 3d 1, 427 N.E.2d 598; People v. Wilson (1980), 86 Ill. App. 3d 637, 408 N.E.2d 988.) In determining whether a warrantless entry of a private dwelling to arrest is justified, the guiding principle is its reasonableness based upon the facts and circumstances known to the officers at the time they acted. (People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543, 549; People v. Henderson (1981), 96 Ill. App. 3d 232, 236, 421 N.E.2d 219, 223, appeal denied (1981), 85 Ill. 2d 570.) In Abney the court noted some of the factors suggesting exigent circumstances authorizing the warrantless entry of a home,

(1) the need for prompt action;
(2) the absence of deliberate or unjustified delay by officers during which a warrant could have been obtained;
(3) a belief the suspect was armed and exhibited signs of a violent character.

Additional factors suggesting officers had acted reasonably were:

(1) existence of a clear showing of probable cause based on reasonably trustworthy information;
(2) defendant was clearly identified;
(3) a strong reason to believe defendant was on the premises; and
(4) the entry was peaceful.

Implicit in these factors is a consideration of the gravity of the offense. People v. Glover-El (1981), 102 Ill. App. 3d 535, 540, 430 N.E.2d 147, 152; see People v. Trull (1978), 64 Ill. App. 3d 385, 380 N.E.2d 1169.

We conclude under the circumstances presented here that the nonconsensual, warrantless entry of the home to make an arrest was not justified. It does not appear that prompt police action to protect the community or persons within the house was required or that delay to obtain a warrant would have unduly impeded an investigation or permitted a criminal to escape. (See People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543; People v. Klimek (1981), 101 Ill. App. 3d 1, 5-6, 427 N.E.2d 598, 602.) Nor will the potential destruction of evidence, standing alone, excuse obtaining a warrant. (People v. Kelley (1982), 104 Ill. App. 3d 51, 432 N.E.2d 630; People v. Seybold (1981), 98 Ill. App. 3d 236, 423 N.E.2d 1132.) In addition, there was no evidence of the presence of weapons or violent behavior, and the suspected offense was minor.

Nor do we consider the officers acted reasonably in entering the private home to make arrests for conduct which would be lawful if it was supervised and approved by the parents of the minors drinking beer. The officers made no effort to determine whether the parents were in another portion of the house, and there was lacking a clear showing of probable cause an offense had been committed.

We have also considered the recent case of People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, in which our supreme court held that the commission of a felony offense in the presence of officers was an exigent circumstance permitting warrantless entry of defendant’s hotel room. Eichelberger must be distinguished, however, as the offense which the officers apparently considered was occurring in the present case was a nonviolent Class C misdemeanor.

As the issues discussed are dispositive we need not consider the other arguments of the parties in this case.

Accordingly, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE REINHARD,

dissenting:

My disagreement with the majority opinion focuses on whether our supreme court’s recent decision in People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, should be distinguished as the majority so concludes. In Eichelberger, the court held that under the facts present there the warrantless entry into the defendant’s hotel room for the purpose of effecting an arrest did not violate defendant’s fourth amendment right since the police officers reasonably believed that a felony was being committed in their presence. While the offense which the police officers here considered was occurring in their presence was the nonviolent Class C misdemeanor of minor drinking, I believe the need for prompt action to stop the crime here being committed and to arrest the person or persons responsible constitutes exigent circumstances just as compelling as in a felony case. The guiding principle is reasonableness under the constitutional provisions governing searches and seizures. (People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543.) Is it reasonable to protect a person from a warrant-less entry into a home and from arrest for a misdemeanor crime he is committing in the presence of police officers when such protection is not available to a person committing a felony in the presence of police officers? I think not. To make such a distinction under the facts here renders law enforcement officers powerless to stop a crime which they see being committed in their presence and requires them to obtain a warrant which may not be readily procurable. To require a warrant allows potential defendants to continue to violate the law or to destroy evidence of that crime. It further inhibits law enforcement agencies in prompt enforcement and administration of their responsibilities.

Under the circumstances present here, the officers reasonably believed a crime was being committed in their presence which justified the warrantless entry into the home and the subsequent arrest. As the majority did not consider other arguments advanced by the defendant, I limit my discussion to this one issue.