author: PRESIDING JUSTICE WEBBER

text:
    WAYNE W. MOSER et al., Plaintiffs-Appellees, v. THE HIGHWAY COMMISSIONER OF THE TOWN OF URBANA, DELBERT JENKINS, Defendant-Appellant.
    Fourth District
    No. 4—82—0608
    Opinion filed April 18, 1983.
    John H. Finfrock, of Finfrock & Weaver Law Offices, of Urbana, for appellant.
    Stanley B. Balbach and S. Byron Balbach, Jr., both of Balbach & Fehr, P.C., of Urbana, for appellees.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiffs filed a petition for a writ of mandamus in the circuit court of Champaign County. The relief sought was to compel the defendant as highway commissioner to pay a drainage assessment in the sum of $156,263.84 together with interest. After a motion to strike was denied, the defendant filed an answer. No evidence was taken since the parties stipulated to most of the operative and pertinent facts, although drawing different conclusions from them. The trial court awarded the writ, and this appeal followed.

Two principal points are in contention: (1) whether the complaint stated a cause of action in mandamus, and (2) whether the underlying judgment on which the writ was sought was valid. We answer in the negative as to both propositions and reverse.

The parties agree that the plaintiffs are the duly appointed drainage commissioners for the subdistrict; that the defendant is the highway commissioner for the town of Urbana and is the “highway authority or highway authorities” for township roads referred to in section 2 — 213 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 2-213).

It is also agreed that the circuit court of Champaign County on March 12, 1980, confirmed an assessment roll for the subdistrict and that the following line item appeared thereon:

Annual “Owner’s Name_Description_Benefits Benefits
Index Number Acres Dollars Dollars
Delbert Jenkins c/o Hwy Comm 1108 Carrol Urbana, IL 61801 30-21-00-000-004 40.35 156,263.84 435.48.”

The parties further stipulated that the address of the Urbana Township Highway Commission office was 2312 East Perkins Road and that the string of digits appearing in the line item above was not part of the county’s permanent real estate numbering system, but was a number used by the subdistrict for billing purposes. Defendant’s answer set up that his home address was 1108 Carrol as it appears in the line item.

There is no dispute that the judgment of March 12, 1980, was a final judgment, but the parties part company as to whether it is enforceable against the defendant, who claims that the notice as it appears in the line item was sent to him personally and not in his official capacity as highway commissioner. No part of the line item has been paid or satisfied.

As indicated above, the trial court awarded the writ which in pertinent part commanded the defendant:

“Include and separately specify within the tentative budget and appropriation ordinance required to be prepared by him, at least 30 days prior to the last Tuesday in March 1983, for THE TOWN OF URBANA, in Champaign County, Illinois, an amount sufficient to pay the unpaid installments of $15,626.38 each for the Thomas Paine Subdistrict of Drainage District No. 3 in the town of St. Joseph, Champaign County, State of Illinois, due May 15, 1980, April 1, 1981, April 1, 1982, and April 1, 1983, together with interest on said installments at the rate of 7% per annum from May 15, 1980, and file the same with the Clerk of THE TOWN OF URBANA, at least 30 days prior to final action thereon, and to take and perform all other administrative steps required by law, on his part to be done and performed, by him, to include each amount in the Tax Levy for THE TOWN OF URBANA, required to be filed on or before the first Tuesday in September 1983.”

It is our opinion that the complaint did not state a cause of action in mandamus. The writ will not lie when the mandate depends upon the cooperation or approval of a third person who is not before the court. (People ex rel. Callahan v. Whealan (1934), 356 Ill. 328, 190 N.E. 698; MacGregor v. Miller (1926), 324 Ill. 113, 154 N.E. 707.) If the cooperation of the third person is a matter of duty and the third person is a public officer, the law will presume that he will do his duty and the writ will lie. People ex rel. O’Meara v. Smith (1940), 374 Ill. 286, 29 N.E.2d 274; People ex rel. Euziere v. Rice (1934), 356 Ill. 373, 190 N.E. 681.

The trial court’s order directs defendant to include in his tentative budget and appropriation ordinance provision for the funds in question. Under section 6 — 501(b) of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 6 — 501(b)) this tentative budget and appropriation ordinance is subject to a public hearing before the township board of auditors, or highway board of auditors, as the case may be, and at that hearing they are to adopt “the tentative budget and appropriation ordinance, or any part thereof as such board of auditors deem necessary.” It is thus apparent that discretion lies with the board and the rule of MacGregor applies. It is a bootless act to require the defendant to do something which may be nullified by the board, whose members are not before the court.

Plaintiff’s petition asked that the defendant be required to pay the $156,263.84 and “such other and further relief as justice may require.” This antique catch-all phrase, born in the mists of chancery and avidly adopted by all other branches of the law, is not sufficient to save the petition. While the ultimate order was different from the prayer of the petition, i.e., it ordered defendant to prepare a budget rather than pay the judgment, nevertheless the defendant had the right to know what it was that he was being required to defend against. There was no allegation that the defendant had funds on hand with which to pay the judgment; if there were, the situation might be different. To spend road district funds, the highway commissioner must draw a warrant on the district treasurer and the warrant must be countersigned by the district clerk, all as provided in section 6 — 201.6 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 6 — 201.6); the countersignature is not discretionary (Ill. Rev. Stat. 1981, ch. 121, par. 6.202.3); and the treasurer is obligated to pay out the funds (Ill. Rev. Stat. 1981, ch. 121, par. 6 — 205). Lacking any allegation or proof that there were funds on hand, this process becomes irrelevant, and the plaintiffs must rely on the “other relief” portion of their prayer.

This portion of the prayer is insufficient. (Daniels v. Cavner (1949), 404 Ill. 372, 88 N.E.2d 823; Cooper v. Village of Lincolnshire (1969), 108 Ill. App. 2d 251, 247 N.E.2d 434.) The difficulty was avoided in People ex rel. B.M. Lewis Union Drainage District v. Rust (1947), 333 Ill. App. 14, 76 N.E.2d 532. The prayer there was in the alternative: either pay the assessment if sufficient funds were on hand, or, if not, levy and collect a tax as provided in the statutes then in force.

Thus it was error for the trial court to deny the motion to strike. Of more serious consequence, however, is the validity of the underlying judgment on which the writ was sought. There can be no serious dispute that mandamus requires a valid judgment in order to establish the defendant’s duty to pay. (Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1946), 395 Ill. 26, 69 N.E.2d 251; Commissioners of Highways v. Big Four Drainage District (1903), 207 Ill. 17, 69 N.E. 576.) We believe that the instant case is controlled by Saline Branch.

In that case the supreme court reasoned that a judgment against a public body is a judgment against a fund and hence is a judgment in personam; as such, it is not enforceable unless the person against whom it is entered is identified with precision. In Saline Branch the assessment was confirmed against “U & C Sanitary District,” an identification which the supreme court found insufficient. In our opinion the recondite notation in the instant case, “c/o Hwy Comm,” is even more so. The trial judge distinguished Saline Branch on the basis that different notice provisions were in the statute at the time of that decision. However, that is immaterial. The fundamental question both in that case and in the instant case is the sufficiency of the identification. A judgment against an official in his individual capacity does not bind him in his official capacity. McMechan v. Yenter (1922), 301 Ill. 508, 134 N.E. 39; Blazer v. Highway Com. (1968), 93 Ill. App. 2d 89, 235 N.E.2d 13.

One accepted meaning of “c/o” is “in care of.” (Webster’s Second New International Dictionary 2991 (1959).) Interestingly enough, it may also indicate “cash order” in banking and “carried over” in bookkeeping. Since it was stipulated at the hearing below that 1108 Carrol is not the office of the highway commission, the notation becomes even more ambiguous.

Plaintiffs argue only that the notice provisions of the Illinois Drainage Code (Ill. Rev. Stat. 1981, ch. 42, par. 5 — 3(2)) were complied with. The question is not notice, but what kind of notice. The case law is clear that a highway commissioner must be sued in his official capacity if he is to be bound. Under the circumstances of a drainage assessment, this official capacity must be clearly set forth. There is no indication in this record that Delbert Jenkins is the highway commissioner. The judgment did not bind him in the official capacity.

Such a holding is not overtechnical. All officials dealing with public funds must be constantly mindful that partial performance is not enough. The requirements may seem to have all the sensibility of the movements of a minuet, but there is good reason for this: the public trust and the protection of public funds.

The order of the circuit court of Champaign County to issue a writ of mandamus is reversed.

Reversed.

MILLS and MILLER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al., Plaintiffs-Appellants and Cross-Appellees, v. LOUIS GIORDANO, Indiv. and as Director of the Illinois Department of Personnel, Defendant-Appellee and Cross-Appellant.
    Fourth District
    No. 4—82—0638
    Opinion filed April 18, 1983.
    Gilbert Feldman, of Cornfield and Feldman, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Sangamon County which dismissed their complaint, holding that it lacked jurisdiction.

The controversy centers about a reduction in health benefits provided by the State. Plaintiffs are the collective bargaining agents for certain groups of employees of the State and the defendant is the Director of Personnel of the State. As such the defendant is responsible for the administration of the State Employees Group Insurance Act of 1971. (Ill. Rev. Stat. 1981, ch. 127, par. 521 et seq.) The complaint alleged that the defendant unilaterally and without negotiations with the plaintiffs reduced health and insurance benefits effective July 1, 1981. It was originally filed in Cook County, but on motion of the defendant venue was transferred to Sangamon County.

The complaint sought a declaration of plaintiffs’ rights and injunctive relief commanding the defendant to restore benefits to the level maintained prior to July 1, 1981. The suit was filed in October 1981 and in April 1982 plaintiffs moved for summary judgment on the basis that the defendant had not responded to it. The defendant then responded by filing a motion to dismiss under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) alleging legal insufficiency of the complaint by reason of sovereign immunity (Ill. Rev. Stat. 1981, ch. 127, par. 801). The trial court ordered the parties to proceed on plaintiffs’ motion for summary judgment.

The defendant then filed a memorandum in opposition to the motion. As exhibits to it, the collective bargaining agreements with the plaintiffs were submitted, and each of these contained comprehensive four-step grievance procedures leading to binding arbitration. Also attached was the affidavit of Peter Yallone, the State’s chief labor negotiator, in which he stated that none of the plaintiffs had filed grievances regarding insurance benefits. The defendant also maintained in the memorandum that the collective bargaining agreements did not specify what health and life insurance benefits union employees were to receive and that such benefits need not be, and were not, the subject of collective bargaining or negotiation by the State. Vallone’s affidavit stated that Executive Order No. 6, signed by Governor Walker in 1973, provided that State insurance benefits were not to be the subject of collective bargaining, and that such benefits had never been the subject of negotiations. *

The trial court denied the motion for summary judgment. A controversy then arose over the written order to be entered. Plaintiffs submitted an order which provided in pertinent part:

“1. The contract issues raised in this cause are hereby resolved to arbitration before an arbitrator to be selected by the parties; and
2. This Court retains jurisdiction for the purpose of resolving any procedural or other questions that may arise in connection with said arbitration.”

The defendant objected to the order, primarily on the basis that the question of health insurance benefits was not subject to arbitration, and stated further in his memorandum in opposition to plaintiffs’ order:

“It is explicitly conceded in each contract that the question of the arbitrability of any issue is for the arbitrator to decide. Thus, if the Plaintiffs filed a grievance, the first question would be whether or not the grievance was permissible under the collective bargaining agreement.”

The defendant then submitted his own order which provided in pertinent part:

“The COURT FINDS AS FOLLOWS:
1. The Defendant contends that the Plaintiffs may not bring this action because the contracts upon which the Plaintiffs’ claims are founded provide for binding arbitration.
2. The Plaintiffs agree that the Court lacks jurisdiction because of the binding arbitration provision.
WHEREFORE, the Court hereby orders that Plaintiffs’ Complaint be dismissed. [The Plaintiffs are, of course, free to file grievances under the grievance procedures in their respective contracts. This order should not be construed to decide whether the question in issue is arbitrable.]”

The trial court signed the defendant’s proposed order but struck therefrom by overlineation with a felt pen the bracketed material. Plaintiffs have appealed from this order, and the defendant has cross-appealed from the trial court’s failure to dismiss on the basis of sovereign immunity. So far as the record discloses, that motion was never specifically ruled upon below.

The principal difficulty with this case is that both sides have assumed something which has not taken place: arbitration. Plaintiffs, by urging that the cause be remanded for arbitration under supervision of the circuit court, assume the very fact in issue, namely, that the matter is arbitrable. Defendant, by urging sovereign immunity, assumes that an arbitration has been ordered. Neither position is tenable.

Plaintiffs’ position is rather inconsistent. They agree that the trial court was without jurisdiction; yet they desire that the court retain jurisdiction to supervise arbitration. There is no middle ground. Either the trial court has jurisdiction or it does not. Plaintiffs point to the Federal system (e.g., Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers International (1962), 370 U.S. 254, 8 L. Ed. 2d 474, 82 S. Ct. 1346; John Wiley & Sons, Inc. v. Livingston (1964), 376 U.S. 543, 11 L. Ed. 2d 898, 84 S. Ct. 909), wherein the trial court determines the issue to be arbitrable and then remands to the arbitrator for decision of both procedural issues and the merits. Plaintiffs urge economy of judicial time and effort in support of this system. However appealing such an argument may be, it is not the law of Illinois.

In this State the procedure is controlled by section 2(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 102(a)), which provides as follows:

“On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.”

In the instant case even a most liberal reading of plaintiffs’ complaint will not yield a conclusion that arbitration is demanded and that the defendant has refused. As has been indicated, the prayer was for a declaration of rights and for mandatory injunctive relief. While there is a strong indication growing out of defendant’s memorandum in response to plaintiffs’ motion for summary judgment that he will refuse arbitration, there is nothing in the record to indicate that arbitration has been so demanded and refused.

Quite the contrary is apparent. The collective bargaining agreements all specify a four-step procedure; arbitration, if it is to take place, does not occur until step number four; it is admitted that steps one through three have never even been attempted, as shown by the Vallone affidavit. The rule in this State is that a complaint must show on its face that all grievance procedures under the collective bargaining contract have been exhausted. Gordon v. Thor Power Tool Co. (1965), 55 Ill. App. 2d 389, 205 N.E.2d 55.

The short of the matter is that plaintiffs’ complaint was altogether premature. The trial court was correct in dismissing it on that basis for lack of jurisdiction. There is no provision in Illinois law for retained jurisdiction in such cases.

Many of the same considerations apply to the defendant’s cross-appeal on the issue of sovereign immunity. In his original motion to dismiss, this was the primary issue, but in his response to the plaintiffs’ motion for summary judgment his primary opposition was the failure to exhaust administrative remedies, i.e., the grievance procedures under the collective bargaining agreements. It was his order, with deletions as explained above, that was entered by the trial court and that order makes no reference, either in the deleted language or in the language left intact, to sovereign immunity.

Nevertheless, defendant maintains that sovereign immunity goes to the question of subject matter jurisdiction, which cannot be waived and can be raised at any time, even on appeal, citing Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 377 N.E.2d 237. He also argues that an appellee may urge any point in support of the trial court’s judgment on appeal, even though the trial court did not rule upon it, provided the factual basis for such point was before the trial court, citing Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285.

These propositions are undoubtedly true, but in our opinion the question in the instant case is ripeness; that is, whether this litigation has reached the stage at which sovereign immunity would be a viable defense. We think not.

The broad doctrine of sovereign immunity is well known. The Illinois Constitution of 1970 abolished it, “[ejxcept as the General Assembly may provide by law.” (Ill. Const. 1970, art. XIII, sec. 4.) The legislature provided:

“Except as provided in ‘An Act to create the Court of Claims, to prescribe its powers and duties, and to repeal An Act herein named,’ filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1981, ch. 127, par. 801.)

The determination of whether an action is against the State of Illinois unless proscribed by law depends not just on identification of the formal parties to the record, but also on issues involved in the relief sought. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310.) When a suit is brought against a State agency or its officers which concerns matters in which the defendants represent the State in their actions and which may expose the State to liability is in effect a suit against the State even though the State is not a formal party to the record. (Talandis.) However, when a State officer performs acts which are illegal or beyond his authority or purports to act under the authority of an unconstitutional statute, a suit brought against that officer is not considered to be against the State. Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975.

In the present posture of the instant case it is impossible to determine whether the State may be exposed to liability (Talandis), or whether this is a case of illegal actions by a State officer (Sass). Those questions will necessarily be decided in a proceeding either to enforce or to stay arbitration. Without attempting to prejudge the matter, we would observe that if arbitration is properly ordered, sovereign immunity might be a defense since the arbitration could expose the State to liability. On the other hand, if arbitration is stayed, the question of liability becomes moot.

In summary, since the plaintiffs’ complaint is premature, the case is not yet ripe for a determination of whether the doctrine of sovereign immunity may apply.

For all the foregoing reasons, the order of dismissal entered by the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    JOHN CHRISTEN TORJESEN, Plaintiff-Appellant, v. LEN YOUNG SMITH, President of the Board of Law Examiners, et al., DefendantsAppellees.
    Fifth District
    No. 82—573
    Opinion filed April 26, 1983.
    Rehearing denied May 10, 1983.

      John Christen Torjesen, of Murphysboro, for appellant, pro se.

    George B. Lee and Charles R. Jelliffe, of Jelliffe & Ferrell, of Harrisburg, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On July 9, 1982, John Torjesen, plaintiff, filed a two-count complaint for mandamus in the circuit court of Jackson County. Count I was directed against the members of the Illinois Board of Law Examiners, and sought an order (l)declaring Supreme Court Rule 703(b) (87 Ill. 2d R. 703(b)) unconstitutional and (2) compelling the board members to permit plaintiff to sit for the bar examination. Count II was directed at Roy O. Gulley, as Director of the Administrative Office of the Illinois Courts, and sought an order compelling defendant Gulley to place plaintiff’s name on the ballot “in the matter of election and appointment to the office of associate judge of the Circuit Court for the First Judicial Circuit.” On August 26, 1982, the circuit court dismissed the complaint with prejudice, finding, inter alia, that no cause of action was or could be stated on the facts alleged therein. Plaintiff has perfected an appeal to this court.

Supreme Court Rule 703 (87 Ill. 2d R. 703) sets forth the educational requirements imposed upon every applicant seeking admission to the Illinois bar by way of examination. Section (b) of the Rule provides as follows:

“(b) Legal Education. After the completion of both the preliminary and college work above set forth in paragraph (a) of this rule, each applicant within the period of six years immediately prior to making application shall have pursued a course of law studies and fulfilled the requirements and received a first degree in law from a law school approved by the American Bar Association. Each applicant shall make proof that he has completed such law study and received a degree, in such manner as the Board of Law Examiners shall require.”

In the instant case, it is undisputed that plaintiff has not received a degree from any law school. Nevertheless, plaintiff alleges in count I that the board has a clear duty to admit him to the examination, since Rule 703(b) is unconstitutional “in that it requires all applicants *** to submit to a three year tutelage under and receive approval from a private and foreign association as prerequisite for admission to the office of attorney at law.” We disagree. There is authority from other jurisdictions upholding the requirement that candidates for admission to a State bar hold a law degree from an institution approved by the American Bar Association (Application of Schatz (1972), 80 Wash. 2d 604, 497 P.2d 153; Petition of Batten (1967), 83 Nev. 265, 428 P.2d 195; Henington v. State Board of Bar Examiners (1956), 60 N.M. 393, 291 P.2d 1108), and we are in agreement with these authorities. To require a board of examiners or a State supreme court itself to look into the individual qualifications and standards of every nonaccredited law school whenever a graduate from that school applies to take the bar examination would be to impose an unreasonable burden on the board or the court. Therefore, a rule requiring applicants to have a degree from a school accredited by the American Bar Association is valid, reasonable, and not offensive to constitutional principles. (Application of Schatz.) Moreover, courts traditionally have employed the members of the bar for the purpose of ascertaining the qualifications of those applying for membership (Rosenthal v. State Bar Examining Committee (1933), 116 Conn. 409, 165 A. 211), and have recognized that the American Bar Association is a representative body upon whose accreditation decisions a State court or bar examining board properly may rely. (Henington v. State Board of Bar Examiners.) Since plaintiff has not persuaded us that Rule 703(b) is unconstitutional, and since it is undisputed that plaintiff did not graduate from any law school, accredited or not, the board members had no duty to admit him to the bar examination. Accordingly, count I of plaintiffs complaint was properly dismissed.

In the second count of his complaint, plaintiff alleges that defendant Gulley has a duty to place plaintiffs name on the ballot for the office of associate judge in the First Judicial Circuit. While this defendant has not filed a brief, we have elected to consider the merits of this aspect of the appeal pursuant to the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493. Plaintiff asserts that section 11 of article 6 of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 11), which provides that judges and associate judges must be attorneys, is unconstitutional by reason of the unconstitutionality of Supreme Court Rule 703(b) (87 Ill. 2d R. 703(b)). We reject this contention. As discussed above, we find no constitutional infirmities in Rule 703(b) and, in any event, the requirement that State court judges be attorneys is not unconstitutional, since such a requirement advances a State’s compelling need to obtain judicial candidates who are qualified to deal with the complexities of the law. (See Bullock v. State of Minnesota (8th Cir. 1979), 611 F.2d 258.) Thus, count II of plaintiffs complaint also properly was dismissed.

Lastly, we note that both the members of the board and defendant Gulley have filed motions to dismiss the instant appeal. These motions, as well as plaintiff’s objections thereto, have been taken with the case. We reject defendants’ assertions that this appeal is barred by the doctrine of res judicata. While plaintiff raised similar issues in a prior case (Jackson County case No. 82-MR-14), no final appealable order was ever entered in that case, nor did the denial of plaintiff’s motion for leave to file a complaint directly with the Illinois Supreme Court operate as a bar to the instant suit (Monroe v. Collins (1946), 393 Ill. 553, 66 N.E.2d 670). We also reject defendants’ contention that this court and the circuit court lack jurisdiction in this cause. The complaint did not attack discretionary acts performed by the defendants, but instead alleged that defendants had a clear duty to act in a nondiscretionary matter. The circuit courts have original jurisdiction in mandamus proceedings (People ex rel. Baird & Warner, Inc. v. Lindheimer (1939), 370 Ill. 424, 19 N.E.2d 336), and the circuit court properly exercised jurisdiction here. Finally, defendant Gulley asserts that questions as to the judicial vacancy in the First Judicial Circuit are moot, since the vacancy has been filled. Plaintiff has alleged, however, that the position has again become vacant. Since this aspect of the controversy is capable of recurring and since, as a practical matter, each vacancy is likely to be filled prior to appellate review of any claim by plaintiff, we have elected to consider plaintiff’s argument on its merits. Accordingly, both motions to dismiss this appeal are denied.

For the foregoing reasons, the judgment of the circuit court of Jackson County, dismissing with prejudice plaintiff’s complaint for mandamus, is hereby affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    SINNISSIPPI APARTMENTS, INC., Plaintiff-Appellant, v. WILLIS HUBBARD, Defendant-Appellee.
    Second District
    No. 82—513
    Opinion filed April 20, 1983.

      Steven E. Sproul, James D. Zeglis, and Mark W. Boswell, all of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellant.
    Bradley T. Koch, of Holmstrom and Green, of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Sinnissippi Apartments, Inc., appeals from an order of the circuit court of Winnebago County which entered a judgment against it and in favor of the defendant, Willis Hubbard, on plaintiffs small claims complaint. Plaintiff, a corporation organized to operate a cooperative apartment complex, had filed a complaint requesting recovery of $2,500 due to defendant’s alleged failure to pay maintenance charges, interest, accounting and litigation expenses relating to the unit in plaintiff’s complex of which the defendant is a shareholder-tenant.

On appeal, the plaintiff contends that the judgment of the trial court was contrary to the manifest weight of the evidence.

Prior to trial, the parties entered into a stipulation of many of the key facts surrounding their dispute. It was stipulated that plaintiff is a corporation organized under Illinois law and is in the business of operating a cooperative apartment. The defendant is a tenant in the apartment complex and executed a lease agreement with the plaintiff. The plaintiff’s tenants are assessed maintenance charges for the use of each apartment, and those charges are determined pursuant to the term and conditions of the lease agreement. Moreover, as a prerequisite for the occupancy of a residential unit in plaintiff’s complex, the defendant was required to become a shareholder in plaintiff’s corporation. During the defendant’s tenancy, he constructed at his own expense (a cost of $32,437) an elevator for the sole and exclusive use of his apartment. As a result of the defendant’s having made that construction, plaintiff’s board of directors on June 24, 1981, issued the defendant an additional 175 shares of stock in the plaintiff corporation. This issuance of additional shares was authorized by pertinent provisions of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.1 et seq.), the articles of incorporation and bylaws of plaintiff corporation and the lease agreement between the parties, subject to the requirement that such issuance be reasonable. No other additional shares had been issued to defendant by plaintiff since January 1978.

The trial court also heard the testimony of several witnesses concerning the controversy between the parties. Thelma Frary, plaintiff’s secretary-treasurer, testified that the issuance of the 175 shares of stock to defendant had increased his shareholdings from 440 shares to 615 shares, and that each of plaintiff’s shareholder-tenants was assessed a maintenance fee according to the number of shares which the tenant owned. The current assessment was 78 cents per share per month. Susan Kaltenbach, an employee of plaintiff’s accounting firm, testified that defendant was $1,505.40 in arrears on payments of assessed maintenance fees, which arrearage resulted primarily from defendant’s nonpayment of that portion of the monthly fee attributable to the extra 175 shares.

The trial court also heard the testimony of Harold Omark, an appraiser in the assessor’s office, who testified on defendant’s behalf. Mr. Omark had assessed the Sinnissippi Apartments in conjunction with the 1979 quadrennial reassessment and had increased the assessment of the complex by 10%. He had not considered the elevator previously constructed by defendant at all in computing his reassessment. Norris K. Levis, a real estate broker, estimated that only $5,000 of the $144,000 fair market value of defendant’s building could be attributed to the installation of the elevator, and that this was a type of improvement for which the cost of construction did not result in an equivalent increase in market value.

The defendant testified that construction began on the elevator in 1978 and was finished in 1979, and that he had subsequently paid for all of its maintenance and operating expenses. He had written plaintiff’s board of directors on January 9, 1981, offering to accept 50 shares of stock due to the elevator’s construction. Defendant felt he should be issued some additional stock because of the elevator, but regarded 175 shares as an excessive number. On cross-examination, defendant acknowledged that after he had added a room to his apartment in 1965, he had accepted an issue of 20 additional shares. He maintained, however, that he had calculated at the time that his improvement had in fact caused an increase in plaintiff’s taxes, which the resultant increase in his maintenance fee would fairly offset. He further acknowledged knowing prior to installing the elevator that he was going to have to take additional shares. However, he viewed the decision of plaintiff’s board as to the number of shares to be issued to him as arbitrary.

Mrs. Frary, recalled as a witness for the defense, said that her feeling was that the increase in the quadrennial reassessment of plaintiff’s property did not in any way contribute to the decision to increase the number of defendant’s shares.

Owen Harding, president of plaintiff’s board, testified in rebuttal that the decision to increase defendant’s shareholding was considered at approximately 10 directors’ meetings and was taken only after the board consulted both its accountant and its legal advisor. He denied that the board’s decision had been motivated by malice or bad faith.

John Conrad, one of plaintiff’s shareholders, explained that he had developed a formula for determining the value of each share of plaintiff’s stock, which valuation was a factor of 29 areas of concern. Application of this formula resulted in a determination that plaintiff’s stock should be valued at $183 per share. Use of this figure resulted in plaintiff’s decision that defendant’s expenditure of approximately $32,500 for the construction of the elevator should result in the issuance to defendant of an additional 175 shares. The predominant factor in his formula for evaluating plaintiff’s shares was their fair market value, but Mr. Conrad did not know whether installation of the elevator had in fact caused a $32,500 increase in the fair market value of defendant’s apartment.

In a letter of opinion, the trial court rejected the notion that the valuation placed on the stock by the directors was conclusive if made in good faith and not as the result of fraud. The court noted that some assessment might well be justified, but denied “the plaintiff’s claim for 175 additional shares and [left] it to the parties to determine a reasonable assessment.”

The court subsequently signed a written order in which it concluded that article II, section 1 of defendant’s lease agreement with the plaintiff, which provides for plaintiff to levy an assessment for the necessary expenses, upkeep, maintenance and operation costs, afforded plaintiff the authority to issue additional shares to defendant. Moreover, special assessments would be enforced if reasonable and based upon unambiguous lease terms which were consistently enforced and applied. However, the court held that plaintiff had not introduced sufficient evidence to establish that the issuance to defendant of 175 additional shares was directly related to the necessary expenses, upkeep, maintenance and operation of the apartment complex. The court further held that issuance of the shares was unrelated to these items. Accordingly, the trial court found that issuance of the additional shares was unreasonable and unauthorized under the circumstances of the case. The court therefore issued judgment in favor of the defendant.

Plaintiff, contending that the judgment of the trial court is against the manifest weight of the evidence, urges that this case is one presenting the question of whether, in the absence of fraud, it is a matter for a corporation’s board of directors to determine the value of its shares. In reliance upon both statutory and case authority (Ill. Rev. Stat. 1981, ch. 32, pars. 157.17, 157.18; Elward v. Peabody Coal Co. (1956), 9 Ill. App. 2d 234), plaintiff answers this question in the affirmative. Further, assuming that the number of shares issued by the directors in exchange for defendant’s contribution to plaintiff of a capital asset must be shown to be reasonable, plaintiff asserts that its use of the amount paid for the elevator as a basis for calculating that number must be considered reasonable under the circumstances. Finally, plaintiff attacks as illogical the statement in the trial court’s letter of opinion (not repeated in the judgment order) that, while the plaintiff might well be entitled to an additional assessment to be determined by the parties, judgment was to be entered against plaintiff as to the entirety of its claim.

In response, defendant maintains that the issuance of additional shares here at issue amounts to an attempt by plaintiff’s board of directors to make a unilateral amendment of article II, paragraph 1 of the parties’ “Shareholder’s Proprietary Lease.” That paragraph concerns the computation of each tenant’s assessment for the complex’ maintenance charges and provides that the total assessment voted by the board of directors be prorated among the tenants according to the number of shares in the corporation held by each. Defendant takes the view that the directors’ decision to increase his shareholdings over his protest was an invalid attempt to amend the lease unilaterally (citing Carden Hall, Inc. v. George (1968), 56 Misc. 2d 865, 290 N.Y.S.2d 430, and Tompkins v. Hale (1939), 172 Misc. 1071, 15 N.Y.S.2d 854).

Similarly, defendant claims that the board’s action may be viewed as an attempt to increase his rent, done without regard to the requirements of article XII, section 1 of plaintiff’s bylaws.

Finally, defendant concludes that plaintiff failed to establish any basis upon which his shareholdings could be increased, given that he bears the entire cost of the operation and maintenance of the elevator and that construction of the elevator did not result in an increase in the assessed value of plaintiff’s property and caused only a $5,000 increase in its appraised fair market value. The defendant views the board’s action as making him responsible for paying virtually the entire amount of increase in the apartment complex’ real estate taxes, despite testimony that the newly constructed elevator was not a factor resulting in that increase.

Three types of cooperative apartments are described in 1 American Law of Property sec. 3.10, at 199-200 (1952), which contains the following discussion of the most prevalently employed type, which involves corporate ownership of the apartment complex:

“Shares of stock *** are sold to persons who will occupy the housing units, the number of shares *** depending on the value of the particular apartment or unit. ‘Proprietary’ leases are issued by the corporation to the shareholders. These leases con-, tain provisions common to other leases. *** Rent, which is subject to being increased or decreased, is based upon estimates of amounts necessary to pay operational costs and interest and installments of principal on any capital indebtedness. Other provisions include covenants against assignment without the consent of the board of directors of the corporation, that the tenant will make inside repairs but no structural changes, and that the corporation may forfeit the lease for breach of various of the covenants or violation of the rules of conduct established by the corporation.
* * *
It would seem clear that the lease in the usual cooperative apartment organization creates the relation of landlord and tenant between the corporation and the shareholder-occupant. Of course, the purpose of the organization is to approach individual home ownership as nearly as is possible in a situation where the only practical solution is common operation and management of many features, and the number of the occupant’s shares are determined by the value of the apartment he occupies. But in legal theory the corporation is distinct from its shareholders, no one of whom has a right to receive legal title to any specific property of the corporation under the better-drawn plans, and it is necessary that this distinction be observed in order to carry out the purposes of the cooperative. The courts have recognized that the relation is that of landlord and tenant in allowing the corporation the usual remedies of a landlord against a tenant.”

See generally Gale v. York Center Community Cooperative, Inc. (1960), 21 Ill. 2d 86; Logan v. 3750 North Lake Shore Drive, Inc. (1974), 17 Ill. App. 3d 584; Brothers v. McMahon (1953), 351 Ill. App. 321; Kenny v. Thompson (1949), 338 Ill. App. 403.

Moreover, “a cooperative is somewhat of a ‘legal hybrid’ in that the stockholder possesses both stock and a lease, and the relationship between the tenant-shareholder and the owner-cooperative is largely determined by reading together the certificate of incorporation, stock offering prospectus, the stock subscription agreement, and the proprietary lease.” (Sanders v. Tropicana (1976), 31 N.C. App. 276, 281, 229 S.E.2d 304, 307-08.) The primary interest of every stockholder in such a corporation is the long-term propriety lease and the stock is incidental to such purpose and merely affords the practical means of combining an ownership interest with the method of sharing proportionately the assessments for maintenance and taxes. Penthouse Properties, Inc. v. 1158 Fifth Avenue, Inc. (1939), 256 App. Div. 685, 11 N.Y.S.2d 417.

In the present case, there is no provision in plaintiffs bylaws or in the “Shareholder’s Proprietary Lease” that requires shareholder-tenants to accept issues of stock voted by plaintiff’s directors on account of a tenant’s construction or improvement of a capital asset. Indeed, a member of plaintiff’s accounting firm observed in a letter to plaintiff’s secretary-treasurer that, “I have been unable to determine the rationalization for issuing additional shares of Stock when a leaseholder makes an improvement in his property.” However, the trial court found that article II, section 1 of the lease afforded plaintiff authority to issue the additional shares to defendant. As pertinent, that section provides:

“[The Lessee hereby covenants to] pay the Lessor *** an annual assessment as rental for said apartment for and during the term of this lease equal to that proportion of the gross amount required by the Lessor during each year for the purposes next mentioned which the number of shares of the capital stock of the Lessor owned by Lessee herein bears to the total number of shares of stock of the Lessor then outstanding, to-wit, one/8290th of the gross amount so required for each share of said stock owned by the Lessee herein; it being understood and agreed that the Board of Directors of the Lessor shall, by resolution adopted at its first meeting after the annual meeting of stockholders, or at any other subsequent meeting, estimate the sum of money which, in its judgment, will be required by the Lessor during the year next ensuing, *** for the maintenance of the corporate existence of the Lessor and the carrying charges on the property of the Lessor, including payment of taxes and assessments, interest on mortgage indebtedness, if any, insurance, cost of repairs and replacements, and the necessary expense of upkeep, maintenance and operation, plus any deficit in the amount fixed for the preceding year, and levy an assessment therefor; said assessment to be payable, without notice, in equal monthly installments in advance on the first day of each and every month during said year.
It is further understood and agreed that if any time the Board of Directors shall, by resolution, declare that an emergency exists requiring additional funds not included in the annual estimates above referred to, the said Board may make a supplemental estimate of the sum to be required by the Lessor for the purposes above mentioned for the ensuing year, and levy an assessment therefor, which shall be payable in the proportion hereinbefore specified and in such manner as shall be determined by the Board of Directors. It is further understood and agreed that the right to establish the amounts, and to require the payment of any of the assessments above provided for, shall be possessed only by the Board of Directors of the Lessor, and shall not pass to any receiver or creditor of the Lessor.”

Contrary to the conclusion reached by the trial court, this paragraph does not expressly or by implication confer upon the directors the authority to issue additional shares of stock as a method of determining each tenant’s maintenance assessment. We rest this conclusion upon the fact that the lease’s terms specify a method for making this calculation on the basis of the ratio between each tenant’s number of shares and “the total number of shares of stock of the Lessor then outstanding ***.”

While defendant had sought and obtained the directors’ prior approval for the construction of the elevator, no provision was made at that time reflecting an agreement whereby defendant would be bound to accept an additional number of shares to be determined by the board. This fact, therefore, belies plaintiff’s contention that the parties’ conduct amounted to an implied amendment of the proprietary lease requiring defendant to accept additional stock. Moreover, implied amendments of the tenant’s lease appear to be contrary to the spirit of article III, paragraph 4 of the lease, which provides for all leases to be uniform in content and requires that changes in the form of leases have written consent from two-thirds of the shareholders.

Inasmuch as we find no provision in the corporate bylaws authorizing plaintiff to impose upon its shareholders the obligation to accept additional stock on account of the shareholders’ contributions to the corporation’s capital, nor any provision in the proprietary lease which requires shareholders to accept such shares when tendered, we conclude that there is no basis upon which defendant could have been required to accept shares voted by plaintiff’s board of directors. Neither the fact that defendant had voluntarily accepted such shares in the past, or that he was prepared to accept voluntarily a smaller number of shares in the present circumstances will suffice to demonstrate defendant’s agreement to the practice for which plaintiff contends.

We agree with plaintiff that the trial court’s ruling, that plaintiff was authorized to issue additional shares, was inconsistent with its conclusion that the corporation was not entitled to any recovery whatever. We also agree with plaintiff’s contention that it is the responsibility of a corporation’s directors, in the absence of fraud, conclusively to determine the value of the corporation’s no-par stock. However, we conclude that plaintiff lacked the authority to require defendant to accept the additional shares issued by plaintiff’s board. Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE STOUDER

text:
    WILLIAM SCHRANZ et al., Plaintiffs-Appellants, v. DOROTHY HALLEY, Defendant-Appellee.
    Third District
    No. 82—216
    Opinion filed April 14, 1983.
    Rehearing denied May 23, 1983.

      Gray, Kleczek & Kielian, P.C., of Joliet, for appellants.
    Harry D. Leinenweber, of Dunn, Leinenweber & Dunn, Ltd., of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

After a jury trial the circuit court of Will County entered judgment on the verdict in favor of the defendant, Dorothy Halley, and against the plaintiffs, William Schranz and Kimberly Schranz, on their claim for damages for personal injury.

On this appeal the plaintiffs argue the trial court erred in refusing to direct a verdict in their favor on the issue of liability and grant them a new trial on the issue of damages only. We find no merit to this argument. Alternatively, the plaintiffs argue the trial court erred in giving a modified instruction at the request of the defendant over the objection of the plaintiffs which error the plaintiffs claim constitutes reversible error. We agree with this contention.

The evidence in this case is neither extensive nor complicated. A brief summary will suffice for our purposes.

The defendant, Dorothy Halley, owned property in Joliet improved with a building containing two apartments. She lived in the downstairs apartment and the upstairs apartment was served by an outside stairway. The property adjoining was occupied by William Schranz and his family, including the minor plaintiff, Kimberly Schranz, who was seven years old at the time of this incident.

On the 30th day of April 1978, Kimberly was on the stairway and apparently leaned against the railing which gave way causing her to fall to the ground below injuring her. Her father was working outside in his own yard and heard the incident but did not actually see the fall take place.

Conflicting evidence was introduced concerning the condition of the railing and what the landlord should or should not have known about its condition, as well as the frequency of Kimberly’s presence on the stairway either with or without the invitation of the upstairs tenant. There was also some evidence of the defendant’s conduct or gestures on some occasions disapproving of the child’s presence on the stairway.

William Schranz brought this action individually and as next friend of his minor daughter Kimberly.

Although the plaintiffs argue the facts disclose liability as a matter of law, their argument ignores two rather salient areas of controversy namely, the dispute concerning the condition of the railing and the knowledge the landlord had or should have had of its condition and also a dispute concerning the foreseeability of the child’s presence on the stairway and the duties which depend on such foreseeability. Both parties have referred at length to Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, which sets forth elements which a minor plaintiff is required to prove in order to recover under the legal theory applicable to liability in cases of this type. Without restating the elements here, we repeat our belief that questions of fact were presented sufficient to require their resolution by a jury and the facts do not impose liability on the defendant as a matter of law.

We next consider the plaintiffs’ contention the trial court erred in giving an instruction over plaintiffs’ objection. The instruction complained of is Illinois Pattern Jury Instructions, Civil, No. 20.01 (modified) (2d ed.) (issues instruction), which provides in pertinent part:

“The defendant claims that the plaintiff, Kimberly Schranz [sic] was contributorily negligent in trespassing on defendant’s stairway and that the plaintiff William Schranz, was contributorily negligent allowing his daughter to trespass on defendant’s stairway.
The defendant further claims that the foregoing was the sole proximate cause of the claimed injuries of plaintiffs.”

Plaintiffs objected for the following reasons: First, the issue of trespass is not a defense in this matter; Second, there is nothing in the evidence suggesting that Kimberly was a trespasser; Third, it is totally irrelevant whether or not Kimberly was trespassing; Finally, the instruction is confusing because it strongly suggests that if William Schranz allowed his daughter to trespass on the stairway, Kimberly cannot recover if the jury finds that to be the sole proximate cause of the injuries. Plaintiffs’ contention is that whether or not Mr. Schranz was negligent in allowing his daughter to go on the stairway is irrelevant with regard to her recovery.

We believe all of the objections to the proposed instruction were well taken and the trial court should not have given the modified issues instruction as tendered by the defendant. Notwithstanding the defendant’s assertion to the contrary, we find the plain meaning of the issues instruction to be that the trespass of the minor is or may be a defense to the action. This is contrary to Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and indeed the defendant has failed to call our attention to any case approving such an instruction.

In Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5, 220 N.E.2d 43, this issue was specifically discussed in the context of a 14-year-old boy trespassing on railroad property notwithstanding repeated efforts by railroad employees to discourage the trespassing. The boy was injured after hopping a freight train and becoming crushed between the side of a train and a bridge support. The court declared that the plaintiff’s trespassing could not be a cause of his injury and that his trespassing was only relevant with relation to the foreseeability of his presence and the railroad’s duty as a result of such foreseeability. See also Dallas v. Granite City Steel Co. (1965), 64 Ill. App. 2d 409, 211 N.E.2d 907.

We believe the instruction permitted the jury to apply an incorrect statement of the law and consequently prejudicial and reversible error occurred.

For the foregoing reasons the judgment of the circuit court of Will County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ALLOY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    AUGUSTUS LEMASTER, Plaintiff-Appellant, v. THE CITY OF GREEN ROCK et al., Defendants-Appellees.
    Third District
    No. 82-408
    Opinion filed April 22, 1983.
    Thomas A. Blade, of Moline, for appellant.
    Joseph D. Sheahan, of Davenport, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court;

Plaintiff Augustus Lemaster filed a complaint for declaratory-judgment, injunction and writ of mandamus against defendants city of Green Rock and its clerk, Martha Sawyer, alleging that certain payments constituted an unlawful increase in her salary. After a hearing on the merits and other determinations not germane to this appeal, the circuit court of Henry County entered summary judgment in defendants’ favor.

In April 1979, Sawyer was elected city clerk of Green Rock, and she received a monthly salary for serving in this part-time position. By ordinance the clerk was also designated as the city collector. By tradition, however, the functions of that position were delegated to a deputy clerk, and Sawyer maintained that tradition. In July 1980, the deputy clerk resigned in an effort to eliminate what plaintiff believed would have been a potential conflict of interest, and Sawyer assumed her duties. In September 1980, an ordinance was passed and, pursuant to its terms, Sawyer began to receive personally those sums previously appropriated for the function of collection and paid to the deputy clerk. Presented for our review is the sole issue of whether the trial court correctly ruled that the city did not pay, and Sawyer did not receive, an unlawful increase in salary.

The controversy at bar stems from constitutional and statutory provisions. Article VII, section 9(b) of the 1970 Constitution of the State of Illinois provides:

“An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.”

Section 3 — 13—1 of the Illinois Municipal Code (hereinafter the Code) (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 13—1) provides, inter alia:

“All municipal officers, except as otherwise provided, shall receive the salary, fees, or other compensation that is fixed by ordinance. After they are once fixed, these salaries, fees, or other compensation shall not be increased or diminished, so as to take effect during the term of any elected municipal officer. The salaries, fees or other compensation of any appointed municipal officer, not including those appointed to fill vacancies in elective offices, may be increased but not diminished so as to take effect during the term for which such officer was appointed.”

Plaintiff contends that Sawyer is an elected municipal officer whose salary was increased when she began receiving the former deputy clerk’s compensation.

Section 3 — 4—3 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 3— 4 — 3) provides:

“No mayor, alderman, city clerk, or city treasurer, shall hold any other office under the city government during his term of office except as otherwise provided in Sections 3 — 4—15 and 3-11-28.”

Section 3 — 11—28 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 3— 11 — 28) pertains to clerks:

“In any city having a population of less than 1,000,000 in which the city council has provided for the appointment of a city collector, the city council may provide by ordinance that the city clerk shall hold the office of city collector.”

Compensation in such a situation is addressed in section 3 — 13—11 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 13—11):

“In municipalities where the same person holds the elective office of municipal clerk and the appointive office of municipal collector, the corporate authorities may provide by ordinance for such person to receive the compensation provided for each of these offices.”

This is precisely the situation at bar, stemming from the passage of the September ordinance.

Plaintiff relies on four decisions for the proposition that a salary increase for an elected official exists where the increase is designated for an appointed office. Wood v. Cook (1863), 31 Ill. 271, involved a former sheriff of Cook County who brought an action against a deputy sheriff and his sureties on their bond. The condition of the bond was that the deputy would faithfully discharge his duties as a deputy sheriff, and the alleged breach involved the collection of certain moneys. From 1839 to 1845, the offices of sheriff and collector were independent; however, in the latter year the sheriff became the ex officio collector. This being the case, the court rejected the argument that the collection function was not a duty addressed in the bond. In Foote v. Lake County (1903), 206 Ill. 185, 169 N.E. 47, plaintiffs decedent had been elected county treasurer when an act was passed providing that such officials would also be ex officio supervisors of assessments in their respective counties. This being the case, the court ruled that the compensation fixed by the county board included payment for all duties prescribed for the treasurer as supervisor of assessments. Lee v. City of Venice (1917), 206 Ill. App. 376, involved a mayor who by ordinance and statute was president of the board of local improvements. The city council passed a resolution pursuant to which he received a small monthly salary while certain improvements were in progress. The court ruled that the duties of board president were part of the duties of the mayor. This being the case, his salary as mayor was the only compensation to which he was entitled. In Dalton v. City of Moline (1977), 48 Ill. App. 3d 494, 359 N.E.2d 500, the mayor, by ordinance, was liquor control commissioner. During his term, the city council adopted a resolution establishing a monthly salary for the latter position. The court ruled the nominally two separate positions must be considered as one. This being the case, he was limited to his salary as mayor.

The common thread running through these four decisions is that an elected public official held an appointive ex officio position pursuant to an ordinance or statute, and the ex officio duties were considered part of the function of the elective office. As Sawyer is the ex officio collector of Green Rock by virtue of an ordinance conferring this status on the city clerk, it would appear at first glance that she is barred from receiving the former’s salary.

Dumke v. Anderson (1976), 44 Ill. App. 3d 626, 358 N.E.2d 344, also involved a situation where, by ordinance, the village clerk held the office of village collector; moreover, the ordinances of the municipality referred to the office as “clerk-collector.” When the board of trustees moved to reduce the collector’s salary to $1 per year, the “clerk-collector” sought declaratory and injunctive relief. The court considered whether there are two positions involved, or one:

“We are of the opinion that section 3 — 8—3 did not give the village board the authority to combine the offices of clerk and collector. Nowhere in the statutes is there reference to a combined office of clerk-collector. Nowhere is there any specific grant of authority providing for a combination of the two offices. Indeed, section 3 — 13—11 of the Illinois Municipal Code, amended in 1971, after section 3 — 8—3 was last amended in 1965 makes continued reference to separate offices: *** The intent of the legislature in enacting these statutes was to make clear that one person could hold both the elective and the appointive office. See also, Eaton v. Bragg (1951), 96 N.H. 407, 77 A.2d 589.
* * *
It is apparent, then, that the Oak Lawn Village Board could not, by the provisions of section 3 — 8—3 under which it purported to act, legally combine the two offices. The legal effect of the ordinance was to eliminate the president’s power to appoint the village collector-the collector would henceforth be appointed automatically as a result of the election of the clerk. The ordinance created a unitary selection process for two distinct offices; those offices, however, continued their separate existence. Thus, Kolb’s office of collector is an appointive one, and distinct from his elective office of clerk.” (Emphasis added.) Dumke v. Anderson (1976), 44 Ill. App. 3d 626, 631-32, 358 N.E.2d 344, 349. See also Tupy v. Oremus (1982), 105 Ill. App. 3d 932, 435 N.E.2d 197, appeal denied (1982), 91 Ill. 2d 581.

Under Dumke, it is clear that the elective office of clerk is distinct from the appointive office of collector. This is also apparent from the statutory scheme governing municipalities. (See Ill. Rev. Stat. 1979, ch. 24, par. 3 — 13—11.) Thus, unlike the situations in the decisions relied upon by the plaintiff, Sawyer’s ex officio duties are not considered part of the function of her elected office. This being the case, those decisions are inapposite; and under both Dumke and section 3— 13 — 11 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 13—11), Sawyer’s receiving the collector’s compensation did not constitute an illegal increase in salary.

While there is no indication that such is present in the case sub judice, we are not unmindful of the potential for abuse which is present in the situation at bar. In regard to any possible modification of the present legal environment, we defer to the wisdom of the General Assembly.

Given our view of this cause, it is unnecessary to address the additional arguments here raised.

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

Judgment affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PETER SICKLEY, Defendant-Appellee.
    Third District
    No. 82—499
    Opinion filed April 21, 1983.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.

      Cynthia M. Raccuglia, of Anthony C. Raccuglia & Associates, of Peru, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Peter Sickley, was charged in a three-count indictment with the offense of indecent liberties with a child. Defense motions to suppress a written statement and videotape statements were denied.

At trial, the defendant renewed his motion to suppress the statements and moved in limine to exclude the testimony of a polygraph examiner who witnessed the statements of the accused.

The circuit court of La Salle County reversed its prior ruling and granted defendant’s motion to suppress the statements, from which the State now appeals.

The facts indicate that the 57-year-old defendant was a guidance counselor at the Tónica High School and Grade School for 18 years. It was alleged that on three separate occasions in December of 1981 the defendant engaged in lewd touching of one of his female students.

Following the alleged incidents but prior to the defendant’s indictment, arrangements were made for the defendant to take a polygraph examination. Due to the existence of the allegations and the pendency of the criminal investigation, the defendant had been suspended from his professional duties in the school system.

An initial polygraph examination (which is not the subject of this appeal) was taken by the defendant at the request of the La Salle County Sheriff’s Department. The results were apparently either inconclusive or unsatisfactory, and the defendant was afforded the opportunity to take another polygraph examination. This time the lie detector test was administered by William P. Schrieber, a polygraph examinator for John E. Reed & Associates, which had made arrangements with the school board to examine the defendant. The admissibility of statements made by the defendant and a written “letter of apology” obtained from the defendant at the conclusion of his interrogation by Schrieber are the subjects of this appeal. The pretest interview and the confrontation of the defendant following the polygraph examination have been preserved on videotape. The actual lie detector test was not recorded.

The defendant’s motion to suppress alleged that the statements of the accused were involuntary and elicited by representations of leniency.

At the hearing Schrieber testified he met with the defendant on February 5, 1982, at the Chicago office of John E. Reed & Associates pursuant to arrangements with the Tónica school district, and that the appointment and examination were made with the consent of the defendant and his attorney. The defendant’s attorney, however, was not present in the examination room with his client and was unaware of the tactics employed by Schrieber. Schrieber described the defendant’s demeanor as somewhat nervous but not abnormally distraught. He testified that he obtained some routine background information from the defendant and then conducted a pretest interview in which he went over with the defendant the questions that would be asked. The polygraph examination was then administered to the defendant and following a brief analysis of the results, he informed the defendant that he had failed the test. Then, according to “standard procedure,” the defendant was “confronted” and using a “religious mode,” the defendant was persuaded to tell the truth and admit to the touching of the student. He denied making any threats or promises to the defendant to induce such statements. Schrieber also testified that he did not mention the school board or the defendant’s possible reinstatement to teaching if he cooperated.

The defendant testified that when he appeared for the polygraph examination Mr. Stanley Eisenhammer, the attorney for the school board, was present. The defendant stated that he was upset and depressed because he had been dismissed from his teaching duties and despite his belief that he was innocent, the only way he could clear himself was by taking the test and passing it. The defendant denied that he confessed to touching the child’s bare chest or thigh and only wrote the “letter of apology” to Eisenhammer at the insistence of Schrieber. The defendant testified that Schrieber convinced him the letter was necessary if he wanted to get his job back.

Without viewing the videotape the circuit court denied the defendant’s motion to suppress. However, the court did view the videotape at a later date but denied the defendant’s motion to reconsider. Specifically, the court found the defendant’s statements to be voluntary despite the fact that it appeared the defendant believed he was being promised a recommendation that he be retained.

When the trial commenced the People called Daniel Malloy, a witness to defendant’s written letter of apology, to testify. The defendant moved in limine to exclude his testimony on the grounds that the defendant had given only a limited consent to the disclosure of any statements made to the polygraph examiners and that it would be error to identify the witness as a polygraph examiner or to resort to a fiction as to his identity.

The court granted the defendant’s motion for the reason that the defendant could not, on cross-examination, go into the conversations and events which led to the written statement of apology. Furthermore, the court indicated that after “much soul searching” it was “appalled at the tactics” employed by Schrieber and that they amounted to “psychological brainwashing” which rendered the statements involuntary.

We have reviewed the videotape and believe that it would be impossible to pass upon the issue of the voluntariness of the defendant’s statements without viewing this evidence.

The videotape evidence discloses that for approximately one-half hour Schrieber conducted a pretest interview of the defendant as to his background and the allegations made against him. The defendant denied that he touched the child’s bare chest or breasts and further denied that he touched her bare thigh. The defendant admitted touching a bump on the child’s lip which she told him had been sustained in a fall from a horse. The child had not been doing well in her school work, and the defendant found that this was in part due to her grief over the death of a close relative. In consoling the child the defendant had held her in his arms but denied touching her in any unnatural or lewd manner. The child liked to sit on his knee and the defendant told her it didn’t look right and others might not understand since his office door was always open and anybody could see them.

The defendant was asked if he had ever in his life engaged in any “unnatural sex,” even as far back as when he was a child, and the defendant responded with several personal but totally irrelevant statements regarding his youth. These questions were put to the defendant after Schrieber discovered that the defendant was a devout Catholic who confessed his sins and attended mass and received communion weekly. The defendant repeatedly denied touching the child.

Following the pretest interview the defendant underwent the polygraph examination, which was not taped.

The videotape resumed with the defendant being confronted with Schrieber telling him “our investigation clearly shows you did these things” to the child. The defendant indicated that he didn’t understand how this could be since he had not done those things, but again Schrieber repeated there was no use denying the charges since the investigation clearly showed the defendant to be guilty. Schrieber then proceeded on a 20-minute harangue in which he continually accused the defendant of committing the acts against the child. Schrieber repeatedly mentioned the school board, knowing full well that the defendant was suspended from his teaching position. Not only did Schrieber tell the defendant that he could not make a recommendation to the board unless the defendant appeared apologetic and honest, but he used the example of two people being employed by the board, both of whom were believed by the board to have done something wrong, and who would the board rather work with, the one who appeared apologetic or the one who did not say anything. By not saying anything he would let the people on the school board think he had “intentions of going all the way” and that “he had done this with every girl that had ever come into his office.”

When the defendant tried to interpose his innocence, Schrieber interrupted him by telling him to let him finish. The defendant was asked, “Did you call her in with the intention of touching her or did it just happen? Which one was it?” Schrieber would not allow the defendant to maintain his innocence and told him that he “did not even want to hear that he didn’t touch her bare chest or bare thigh.” That the only way for the defendant to “straighten this thing out” was to admit it and then the board would “work with him.” That only a religious person would confess and the defendant had said he was a devout Catholic and he must then confess because God could see into his mind and he would be haunted by this the rest of his life unless he got this straightened out by admitting it. The defendant was told that the school board was going to ask their impression and “what we have to say is very important,” and that they wanted to believe him but couldn’t unless he would admit to it.

Finally the defendant admitted that he must have gotten “carried away” although he didn’t remember doing any of the things the child claimed, but Schrieber said the child had no reason to lie so the best thing would be to write a “letter of apology” to the school board, which the defendant agreed to do. Schrieber dictated the statement and the defendant wrote down verbatim what he was told. Prior to writing the “apology” the defendant asked Schrieber for advice as to whether he should first talk to his attorney, who was in the other room, and Schrieber explained that he couldn’t really advise him, but if the attorney had arranged for the test he must have meant for him to cooperate fully and that included writing the letter, and that the attorney would want it done “now.”

The primary question to be answered by the circuit court was whether, under the totality of the circumstances, the defendant’s statements were involuntary. People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.

In determining whether a statement is voluntary, it must be ascertained whether the defendant’s will was overcome at the time he confessed or whether the admission was made freely, without compulsion of any sort. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The State has the burden of showing that a statement was made without compulsion of any sort. This does not mean that only statements induced by physical coercion or promises of leniency or immunity are involuntary. Consideration is to be given to the details of the interrogation and the characteristics of the accused. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.

The trial court’s decision on the issue of voluntariness is not to be disturbed unless it is contrary to the manifest weight of the evidence. People v. Woodburn (1979), 75 Ill. App. 3d 532, 393 N.E.2d 1332.

Our review of the videotape evidence leads us to conclude that the decision of the circuit court that the statements of the defendant and the “letter of apology” were induced through misrepresentation, duress, improper influence and psychological brainwashing was correct. The defendant had two choices. First, keep silent and let the school board believe he had committed the acts that he was accused of, or apologize for something that did not appear so bad, that he had done nothing more “than other board members may have done under the circumstances,” that he had just gotten “carried away” but that he had “stopped himself” and once he admitted it, things would be “worked out” when they (polygraph examiners) met with the board to give their report and recommendations. The only thing the defendant could do to satisfy Schrieber, to earn his recommendation, was to retract his repeated claims of innocence and admit “he was human” and the board “being human” would understand. Attorney Eisenhammer’s presence at the offices of the polygraph examiner immediately prior to the test and the dictated letter of apology to him following the “confrontation” could only reconfirm, in the defendant’s mind that Schrieber had the power and the authority and was prepared to use it for or against him depending upon his cooperation. The defendant was repeatedly told, “Remember, our main concern is you, Pete.”

The State argues that despite the fact that our supreme court has held that polygraph. results are not admissible (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070), this does not preclude the introduction into evidence of statements obtained after a polygraph examination is administered. We agree. However, the inquiry into the issue of voluntariness cannot be conducted in a vacuum. Here, the alleged failure of the defendant to pass the polygraph examination was an event, if not the event, used by the examiner to confront the defendant and to coerce his cooperation. The defendant was in effect told that to take issue with such evidence, “our investigation,” would be useless and if he wanted to save his job and his career at 57 years of age, his only chance was to admit his wrong and that the board would understand because he (Schrieber) would report to the board and what he had to say was important.

The State also contends that no direct promises of leniency were made to the defendant and that any impression the defendant had was purely subjective. It is further alleged that under the rule of People v. Heide (1922), 302 Ill. 624, 135 N.E. 77, a confession only becomes incompetent when any degree of influence has been exerted by any person having authority over the charge against the defendant to cause duress or hope of leniency. The State argues that since Schrieber had no authority to institute or dismiss criminal charges against the defendant, he lacked the requisite authority as provided in Heide.

While it is true that Schrieber may have had no actual power to initiate or terminate criminal proceedings against the defendant, that does not appear to be the issue. The important question is whether he represented to the defendant that he had real or apparent authority to alter or influence a certain course of events in the event the defendant capitulated and whether the defendant reasonably believed that changing his statement was necessary to obtain certain preferential treatment. People v. Ruegger (1975), 32 Ill. App. 3d 765, 336 N.E.2d 50 (police officers’ offer to “go to bat” for the defendant on matters relating to a recognizance bond and probation if defendant held sufficient to render subsequent statements of defendant involuntary); see also People v. Hogan (1982), 31 Cal. 3d 815, 647 P.2d 93, 183 Cal. Rptr. 817 (psychological coercion).

The videotape is graphic evidence of the deterioration of the defendant’s will to resist under the pressure to save his career by the only means made available, i.e., a confession in return for a favorable recommendation by Schrieber to the school board. The totality of the circumstances surrounding defendant’s statements and letter of apology raises a strong doubt as to their volitional character. People v. Hogan (1982), 31 Cal. 3d 815, 843, 647 P.2d 93, 109, 183 Cal. Rptr. 817, 833.

For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

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


text:
    PAT WHITE, d/b/a Royal Jewelers, Plaintiff-Appellant, v. DAVID NEELAND, Defendant-Appellee.—(Linda Neeland, Defendant.)
    Third District
    No. 82—515
    Opinion filed April 27, 1983.
    Michael R. Berz and Debra K. Smietanski, both of Berz & Smietanski, of Kankakee, for appellant.
    James T. Burns, of Law Offices of Charles O. Henry, of Kankakee, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

The plaintiff brought a small-claims action against David Neeland and his wife to recover for jewelry purchased by Mrs. Neeland. The plaintiff appeals the trial court’s order granting the husband’s motion to dismiss. We reverse.

The facts are not in dispute. Between March 10 and August 17, 1979, Mrs. Neeland purchased from the plaintiff two diamond watches, a diamond cocktail ring, a pearl necklace, pearl earrings, and a lighter. The value of the merchandise exceeded $6,000. Payments made by the wife reduced the balance due on her account to $2,608.94. No further payments were made, however, after May 22, 1981. On January 7, 1982, the plaintiff brought suit against both the husband and wife for $2,500, the maximum recoverable in a small claims action. 87 Ill. 2d R. 281.

The husband filed a motion to dismiss alleging that he had not made the purchases, that he did not possess any of the merchandise, and that he did not sign the purchase agreement upon which the claim was based. The trial court allowed the motion finding that defendants were a family in fact but that the purchase of jewelry, precious gems and precious metals, did not fall within the scope of the Family Expense Act (Ill. Rev. Stat. 1981, ch. 40, par. 1015). The plaintiff turned to this court after the trial court found pursuant to Supreme Court Rule 304(a) that there was no just reason for delaying appeal. 87 Ill. 2d R. 304(a).

The Act provides in pertinent part:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” Ill. Rev. Stat. 1981, ch. 40, par. 1015.

The parties have confined their arguments to the issue of whether the purchase of jewelry constitutes a family expense under the Act. There is a scarcity of case law on the subject.

The Act finds its origins in the “An Act to revise the law in relation to husband and wife.” (Ill. Rev. Stat. 1874, ch. 68, par. 15.) It was copied from a similar provision in Iowa, and our courts have looked to the decisions of that State when interpreting the Illinois statute. (See Dunn v. Pickard Brothers (1887), 24 Ill. App. 423.) At common law, the wife could bind her husband for “necessaries” only as express authority was given her, or as authority was, or could be, implied from the husband’s neglect to furnish articles suitable to her situation in life. (Arnold v. Keil (1898), 81 Ill. App. 237.) Under the statute, however, both the husband and wife are jointly and severally liable for the expenses of the family. Such expenses embrace more than “necessaries” under the common law. (Hyman v. Harding (1896), 162 Ill. 357, 44 N.E. 754.) What constitutes a “family expense,” however, escapes precise definition. They include “expenses for articles which conduce in a substantial manner to the welfare of the family generally and tend to maintain its integrity.” (Carson Pirie Scott & Co. v. Hyde (1968), 39 Ill. 2d 433, 436, 235 N.E.2d 643, 645.) In the case of Louis Berman & Co. v. Dahlberg (1948), 336 Ill. App. 233, 83 N.E.2d 380, the court looked to whether the expenditure was incurred for, on account of, and to be used in, the family, and also to whether the expenditure was for an article used, or kept for use, in the family. See Ill. Ann. Stat., ch. 40, par. 1015, Historical and Practice Notes, at 245 (Smith-Hurd 1976).

The plaintiff argues that the purchases of the defendant wife should be considered within the purview of the Act. His principal contention is that the jewelry served as an investment from which the entire family could benefit. Relying upon Hyman, however, the husband argues that the trial court properly dismissed the lawsuit as to him.

In Hyman, the plaintiff sued a husband and wife for the cost of a ring purchased by the wife. The jury found for the plaintiff and against both defendants. The husband appealed and the supreme court reversed, concluding that the ring, an article worn for mere adornment and display in general society, did not constitute an item of family expense for which the statute made both the husband and wife chargeable.

However, in Marquardt v. Flaugher (1882), 60 Iowa 148, 14 N.W. 214, a case discussed in Hyman, a gold watch and chain and other articles of jewelry actually used in the family were held to be articles of family expense. In Neasham v. McNair (1897), 103 Iowa 695, 72 N.W. 773, a diamond shirt stud worn by the husband was found to be a family expense, in part, because of its utilitarian function. The husband was held liable for his wife’s purchase of a fur coat in Louis Berman & Co. v. Dahlberg (1948), 336 Ill. App. 233, 83 N.E.2d 380. In that case, a salesperson had exhibited the coat to the husband in the presence of his wife prior to the sale. Thereafter, the husband, through one of his secretaries, sought a reduction in the purchase price. The court noted that the wife wore the coat on at least two occasions in public while accompanied by her husband. These factors led the appellate court to conclude that the coat’s purchase was a family expense.

As the foregoing cases illustrate, the question of whether articles of jewelry or similar items of luxury constitute a family expense depends upon the nature and actual use of the item in question. By granting defendant’s motion to dismiss, the trial court determined as a matter of law that the jewelry purchased by Mrs. Neeland conduced no substantial benefit to her family. (Carson Pirie Scott.) The court erred in doing so.

We regard this as a question of fact which could not have been decided upon the pleadings. We are not unmindful that for most families the purchase of over $6,000 worth of jewelry would represent an extraordinary expense. Our statute, however, does not limit the liability of parties to purchases that are reasonable and necessary. (See Iowa Code Ann. sec. 597.14 (West 1981).) Rather, the ultimate issue focuses upon who benefited from the expenditure.

While there may be some expenses which, as a matter of law, could be of no benefit to the family, we conclude that the jewelry purchased here does not fall into that category. The record provides no information as to how, by whom, or for what purpose the jewelry was to be used. Our decision should not be construed, however, as countenancing the plaintiff’s theory that the wife’s purchases benefited her family because of their investment potential. Again, that is a question of fact for the trier of fact.

For all the foregoing reasons, the judgment of the circuit court of Kankakee County is reversed.

Reversed.

MILLS and TRAPP, JJ., concur.