author: JUSTICE NASH

text:
    DIVERSIFIED COMPUTER SERVICES, INC., Plaintiff-Appellee, v. THE TOWN OF YORK, Defendant-Appellant.
    Second District
    No. 81-2
    Opinion filed March 22, 1982.
    Barry E. Garley, of Oak Brook, J. Edward Vertovec, of Elmhurst, and Jack M. Siegel, of Chicago, for appellant.
    John P. Scotellaro, Larry L. Thompson, and Robert Radasevich, all of Bell, Boyd, Lloyd, Haddad & Burns, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Town of York (the Township), appeals from a judgment of the circuit court of Du Page County entered upon the verdict of a jury finding it to be in breach of contract and awarding damages to plaintiff, Diversified Computer Services, Inc. (DCS), of $165,500, together with attorney fees of $80,000 and $19,315.89 for prejudgment interest. The primary issue presented is whether the township was authorized to enter into a contract for the purchase of computer components, programs and maintenance services, to be paid for over a five-year period, where no full, prior appropriation had been made for that purpose. We conclude the township was not so authorized and accordingly reverse.

Lester Swailes, the York Township assessor, sought to improve the operation of his office by installation of a computer system. He entered into negotiations with DCS, which is in the business of selling and leasing computer systems, and, because of budgeting considerations, he expressed interest in a multiyear lease arrangement with an option to purchase. The town board was kept apprised of the progress of these discussions, and the proposed system was demonstrated before it. The assessor advised the town board his office needed the system and that it would be more economical than using the Du Page County computer services as it had in the past.

On March 8, 1977, Swailes and representatives of DCS appeared before the town board of auditors and requested that it approve contracts for the lease-purchase of a computer system from DCS. The minutes of the board meeting reflect that the contracts between Assessor Swailes and DCS were presented to the board, voted upon and approved by it. The necessary documents were thereafter executed by Swailes on behalf of the “York Township Assessor’s Office”; they provided for the payment to DCS of $3,900 each month commencing in March 1977 and continuing for a period of 60 months, with the payments to be applied toward the total purchase price of $175,250 for the computer system at the expiration of the lease. DCS was authorized by the terms of the agreement, on default of the township, to terminate the lease and declare all unpaid installments immediately due and payable. The contract also provided for the recovery of costs and attorney fees incurred by DCS in enforcing its terms.

Because of space limitations in the assessor’s office, it was agreed between Swailes and DCS that the computer equipment would be maintained in DCS’s office and a terminal installed in Swailes’ office linked to it. They apparently further agreed that DCS would also apply its own equipment to the services as a backup, if necessary, until such time as space for it became available in the assessor’s office.

This arrangement between DCS, the township and the assessor operated without incident for several months. Funds for the initial monthly payments due under the lease were included in the annual budget and appropriation ordinances adopted for the years 1977 and 1978 by the town board of auditors, as reconstituted after the April 1977 town election, and 15 monthly payments of $3,900 each were made to DCS through May 1978 pursuant to the terms of the agreement. The town board, however, thereafter expressed dissatisfaction with the equipment, believing it to be of greater capacity than was required for the assessor’s needs and also questioning whether other agencies were making use of it in addition to the assessor. The town board declined to approve the June 1978 payment to DCS, and no further payments were made thereafter under the lease-purchase agreement. DCS served notice the township was in default and then brought this action for breach of contract to recover the remaining payments due under its 60-month term, together with its attorney fees and costs. The township counterclaimed for recovery of the payments it had made under the agreement on the grounds it was invalid and, alternately, alleged that the agreement was breached by DCS by its failure to make prompt delivery and provide exclusive use of the equipment to the assessor’s office.

At the close of all the evidence, the trial court directed findings that a valid contract existed between the parties and that the township had waived its rights relating to the delivery and exclusive use of the equipment. The sole issue submitted to the jury was whether the assessor had been induced to waive the delivery and exclusive use provisions of the agreement by fraudulent representations attributable to DCS, and the question of damages, if any. The jury returned a verdict in favor of DCS for damages and attorney fees after which the court entered judgment thereon and also awarded prejudgment interest.

Initially, we consider DCS’s argument that the issue of whether the township had the power to enter into a contract for which no full, prior appropriation had been made has been presented for the first time on appeal and is thereby waived.

It is true this issue, as now framed, was not raised in the trial court; while the township did attack the validity of the agreement, it did not do so in the present terms. Nevertheless, it has been held that a claim of illegality of an agreement can properly be considered although raised for the first time on review, as the courts may not be called upon to adjudicate rights growing out of an agreement which is void as against public policy or in violation of the public law. (Lind v. Spannuth (1956), 9 Ill. 2d 311, 316, 137 N.E.2d 360, 362; Pietsch v. Pietsch (1910), 245 Ill. 454, 459, 92 N.E. 325, 327; see Lasko v. Meier (1946), 394 Ill. 71, 67 N.E.2d 162.) Also, while this specific issue was not included in a post-trial motion, the question of the validity of the contract was one of law for the trial court and it directed a finding adverse to the township thereby excusing its failure to raise that issue in a post-trial motion. (See Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 380 N.E.2d 786; Keen v. Davis (1967), 38 Ill. 2d 280, 230 N.E.2d 859; E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181, appeal denied (1982),_Ill. 2d__) Moreover, it must be recognized that while the litigants are bound by rules of waiver the courts are not similarly barred when it may be proper to override them to achieve a just result or maintain a uniform body of precedent in a case of public importance. (Wozniak v. Segal (1974), 56 Ill. 2d 457, 460-61, 308 N.E.2d 611, 612-13; Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831, 832.) We choose to consider the merits of the issue of whether a township has authority to enter into a multiyear contract for which funds have not been fully appropriated.

In response to this question, DCS argues that as neither “An Act to revise the law in relation to township organization” (the Township Act) (Ill. Rev. Stat. 1979, ch. 139, par. 1 etseq.), nor any other statute, restricts the power of a town board of auditors to bind a township to the type of contract here considered that it is enforceable, citing 9 Ill. L. & Prac. Cities & Villages §663 (1954); City of Rock Island v. Central Union Telephone Co. (1907), 132 Ill. App. 248; Illinois Power & Light Corp. v. City of Centralia (E.D. Ill. 1935), 11 F. Supp. 874, remanded (7th Cir. 1937), 89 F. 2d 985. Each of these cases, however, was concerned with public utility franchises for telephone and electrical services, and they were limited in their application to contracts permitting the long-term arrangements necessary to provide such services. Neither case involved an appropriation of funds by a municipality or any obligation to expend public funds; they therefore do not assist in the resolution of the present issue.

The township contends the lease-purchase agreement was ultra vires and void as it constituted a promise to expend public funds which had not yet been appropriated for that purpose. The township refers to the Illinois Municipal Budget Law (Ill. Rev. Stat. 1979, ch. 85, pars. 801-805), which requires a township to adopt an annual budget and appropriation ordinance in the first quarter of each fiscal year specifying the objects and purposes of which such appropriations are being made and the amount appropriated for each such object or purpose; it also generally prohibits any additional appropriation and provides for notice to the taxpayers and a public hearing prior to passage of the appropriation ordinance. The township argues that the Illinois Municipal Budget Law may be considered on the same basis as the more specific, but similar, statute regulating appropriations and expenditures of those governmental bodies which are subject to the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 1—1 etseq.). Section 8 — 1—7 of the Code provides that “[n]o contract shall be made by the corporate authorities 000 unless an appropriation has been previously made concerning that contract” and that a contract not supported by a prior appropriation is “null and void as to the municipality.” It is apparent DCS would be barred from recovery under its lease-purchase agreement if townships were governed by the Municipal Code. (See Chicago Patrolmen's Association v. City of Chicago (1974), 56 Ill. 2d 503, 309 N.E.2d 3, cert, denied (1974), 419 U.S. 839, 42 L. Ed. 2d 66, 95 S. Ct. 68; Koudelka v. Village of Woodridge (1980), 91 Ill. App. 3d 884, 413 N.E.2d 1381; Guerine v. City of Northlake (1971), 1 Ill. App. 3d 603, 274 N.E.2d 625; Collins v. Village of Glen Ellyn (1959), 21 Ill. App. 2d 373, 158 N.E.2d 89; Beling v. City of East Moline (1957), 14 Ill. App. 2d 263, 144 N.E.2d 865, appeal denied (1958), 12 Ill. 2d 635.) However, townships are not included as municipalities subject to the proscriptions of the Illinois Municipal Code (see Ill. Rev. Stat. 1979, ch. 24, par. 1 — 1—2(1); People ex rel. Stoffel v. Town of Cicero (1949), 404 Ill. 432, 89 N.E.2d 350), and section 8 — 1—7 may not therefore be considered dispositive of this issue.

Nevertheless, the same considerations prompting the legislature to declare void municipal contracts for which prior appropriations were not made have long formed the basis for application of that principle to other governmental entities. This court noted in Mathew v. Town of Algonquin (1972), 3 Ill. App. 3d 429, 434, 279 N.E.2d 91, 94:

“A highway commissioner has been held without power to incur debt against a township for road construction except to the extent of tax funds on hand or tax levies made (Austin-Western Rd. Machinery Co. v. Wetzel (1931), 264 Ill. App. 254) and a person furnishing labor or materials to the highway commissioner of a town has no right to expect payment except from funds on hand or tax levies made (Challacombe v. Anderson (1912), 173 Ill. App. 144).”

See also Coles County v. Messer (1901), 195 Ill. 540, 63 N.E. 391; West Chicago Park Commissioners v. Kincade (1896), 64 Ill. App. 113; E. McQuillin, Municipal Corporations §29.20, at 274-79 (3d ed. 1981); Ancel, Municipal Contracts, 1961 U. Ill. L. F. 357, 360-65.

In Deyo v. Commissioner of Highways (1930), 256 Ill. App. 3d, appeal denied the plaintiff entered into a contract on September 14,1927, with the commissioner of highways of a township who sought to purchase a tractor by paying one-half of the $3,900 purchase price in May 1928 and the other half in May 1929. The levy ordinance in effect, however, provided only $1,000 for the purchase of machinery for the fiscal year ending in September 1928. The reviewing court held that the purchase agreement was unenforceable for lack of a full, prior appropriation for that purpose, stating:

“In the case of Commissioners of Highways v. Newell, 80 Ill. 587, the court said: ‘With quasi corporations of this character the rule obtains that their power to impose taxes or incur indebtedness will be strictly construed.’ In this case it was further held: ‘It, then, follows that they have no power to legally incur an indebtedness for road and bridge purposes beyond the amount of the taxes already levied for that year. In other words, they can in no one year expend, lawfully, more than the amount levied for that year.’ So by analogy the commissioner of highways in the case at bar could not lawfully contract an indebtedness for machinery beyond the amount which had been levied therefor.” (256 Ill. App. 3, 7.)

As we have said, this court also recognized these principles in Mathew v. Town of Algonquin, when it held that the defense of ultra vires is available to a township in an action for engineering services rendered to it, a purpose for which it had no specific or general corporate power to incur an obligation.

DCS essentially contends that it is the Township Act (Ill. Rev. Stat. 1979, ch. 139, par. 1 et seq.) which governs the Town of York and the Act contains no restriction on the power of the town board to bind it by the contract in issue. This argument overlooks the fact that townships, like all other non-home-rule units, have no inherent powers, but only those granted to them by the constitution or authorized by statute. (See Ill. Const. 1970, art. VII, §§1, 8; Ill. Rev. Stat. 1979, ch. 139, par. 38; Town of the City of Peoria v. O’Connor (1980), 85 Ill. App. 3d 427, 433-34, 408 N.E.2d 11, 15, affd in part, rev’d in part on other grounds (1981), 85 Ill. 2d 195, 421 N.E.2d 912.) A review of the Township Act discloses townships have been granted the power to acquire property by purchase and to make contracts necessary to carry out their express powers. (Ill. Rev. Stat. 1979, ch. 139, par. 38.) The Act also specifically authorizes townships to lease property they own to others for terms up to 10 years (Ill. Rev. Stat. 1979, ch. 139, par. 39.01), and, if approved by referendum, they may enter into garbage collection contracts for terms not exceeding 15 years, subject to the duty of appropriating annually the sums due under the terms of the contracts (Ill. Rev. Stat. 1979, ch. 139, pars. 333-336). We find no corresponding provision in the Township Act, however, authorizing a multiyear contract for computer acquisition purposes for which a prior appropriation has not been made as in this case. Furthermore, although DCS argues section 3 of the Municipal Budget Law, to which townships must conform, was enacted solely to guarantee uniform accounting procedures, it has also been said that one of its purposes is to require governmental bodies to budget in advance the funds to be expended for each purpose and, once a budget and appropriation ordinance is adopted, that only expenditures for those purposes and in the sums therein set forth are permissible. See People ex rel. Manifold v. Chicago, Burlington & Quincy R.R. Co. (1944), 386 Ill. 56, 61, 54 N.E.2d 389, 391; People ex rel. Larson v. Thompson (1941), 377 Ill. 104, 117, 35 N.E.2d 355, 361.

We conclude the town board of auditors lacked authority to approve the contract in question, in the absence of a full, prior appropriation of funds for that purpose, and the agreement is therefore unenforceable against the Town of York.

DCS notes that after entering into the contract the town board provided for the payment of a portion of the amount due under its terms in the 1977 and 1978 budget and appropriation ordinances. It argues the township should be estopped from asserting the defense of ultra vires. This argument finds little support in the decisions of our reviewing courts where a distinction has generally been drawn between the lack of power in a municipality to act and the improper exercise of authority. (See, e.g., Avery v. City of Chicago (1931), 345 Ill. 640, 178 N.E. 351; Mathew v. Town of Algonquin (1972), 3 Ill. App. 3d 429, 279 N.E.2d 91.) As this court stated in Stahelin v. Board of Education (1967), 87 Ill. App. 2d 28, 41-42, 230 N.E.2d 465, 472:

“Contracts entered into by a municipality which are expressly prohibited by law, and which under no circumstances can be entered into, are void and ultra vires. They may not be rendered valid thereafter by estoppel or ratification on the part of the municipality. However, there is another class of municipal contracts, distinct from the void type heretofore referred to, wherein the municipality has the power to enter into the contract, but where a portion thereof may be beyond its power, or its power may have been irregularly exercised. As to this class of contracts, a municipality may not assert its want of authority or power, or the irregular exercise thereof, where to do so would give it an unconscionable advantage over the other party.”

In our view, the requirement of a prior appropriation imposed upon the township by the Illinois Municipal Budget Law (Ill. Rev. Stat. 1979, ch. 85, par. 803) is not simply a precatory bookkeeping procedure suggested by the legislature for guidance in fiscal matters, but, instead, is a condition precedent to the expenditure of town funds and therefore to the validity of the contract in issue. (See DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550; Guerine v. City of Northlake (1971), 1 Ill. App. 3d 603, 274 N.E.2d 625; Collins v. Village of Glen Ellyn (1959), 21 Ill. App. 2d 373, 158 N.E.2d 89; Greene v. City of Danville (1953), 350 Ill. App. 440,113 N.E.2d 348, appeal denied (1953), 415 Ill. 631; Deyo v. Commissioner of Highways (1930), 256 Ill. App. 3, appeal denied.) The township was not es-topped from asserting ultra vires as a defense to enforcement of the lease-purchase agreement against it in this case.

In conclusion we note that in a context similar to that seen in the present case, the court in May v. City of Chicago (1906), 222 Ill. 595, 599-600, 78 N.E. 912, 913, stated:

“A person dealing with a municipal corporation is charged with the knowledge of the limitations of the power of that corporation for any contract attempted to be entered into by any of its officials.”

As the issue we have discussed is dispositive, we need not consider the other claims of error asserted by the township.

Accordingly, the judgment of the circuit court of Du Page County is reversed and this cause is remanded for such further proceedings as may be necessary on the township’s counterclaim.

Reversed and remanded.

SEIDENFELD, P. J., and REINHARD, J., concur. .


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    THE BOARD OF REVIEW OF WOODFORD COUNTY, Plaintiff-Appellee, v. ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants.—(WESTINGHOUSE AIR BRAKE CO., Defendant-Appellant.)
    Fourth District
    No. 17299
    Opinion filed March 11, 1982.

      Timothy W. Swain and Donald M. Hartshorn, both of Swain, Johnson & Card, of Peoria, for appellant.
    G. Patrick Riley, State’s Attorney, of Eureka (Robert J. Biderman and Keith Vanden Dooren, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

The case concerns the 1976 real property assessment for tax purposes of land in Woodford County owned by defendant Westinghouse Air Brake Co. (WABCO) and used by it as a testing ground. No dispute exists as to the assessment of the improvements on the land.

The Worth Township assessor assessed the land at $400 per acre. WABCO appealed to plaintiff, the Board of Review of Woodford County, which confirmed the assessment as set forth in a notice mailed to WABCO on July 27, 1977. WABCO then filed a petition for appeal with defendant, the Illinois Property Tax Appeal Board (PTAB) on August 11, 1977. PTAB held a de novo hearing (Ill. Rev. Stat. 1979, ch. 120, par. 592.2), and on May 12,1978, rendered a decision reducing the assessment to $200 per acre.

On June 7, 1978, plaintiff filed a complaint for review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 etseq.) in the circuit court of Woodford County. On June 16, 1981, that court entered an order finding the PTAB decision to be contrary to the manifest weight of the evidence, reversing the decision and remanding to PTAB with instructions to reassess the lands. WABCO appeals.

The evidence showed the testing-ground tract to consist of about 410 acres of rolling clay sod with some scrubby vegetation. WABCO had rearranged the topography in order to provide for tracks for testing. The property was reachable by a gravel road and a blacktop road. Electrical and water service was available, but it had no railroad connection nor were railroad or trucking facilities nearby. The use of the land was entirely for the testing of equipment and had been zoned for industrial usage. Some land nearby was zoned for residential purposes and platted. Some houses had been built on this land. Other nearby land was zoned and used for agricultural purposes. The property was not near any substantial industrial development.

At the PTAB de novo hearing, Ellwood Ladendorf, plaintiff’s supervisor of assessments, testified that its $400 per acre assessment of the WABCO tract had been based upon consideration of the sales price paid for two separate tracts in the area that had been or were to be used by Caterpillar Tractor Co. as test grounds and upon the assessment of a third Caterpillar test ground. A 56.71-acre portion of one tract, lying entirely in Tazewell County had been sold to the State of Illinois for highway purposes in 1972 for $758.24 per acre. Another tract was in Peoria County. It was adjacent to property being used by Caterpillar as a testing ground and was purchased by them in 1975 for $973.12 per acre. The portion of the third Caterpillar test ground located in Woodford County was shown to have been assessed at $400 per acre. Mr. Ladendorf stated that based upon the foregoing data and considering subsequent inflation, he was of an opinion that the WABCO tract had an actual market value of $1,200 per acre. He thus justified the $400-per-acre assessment made by plaintiff. See Ill. Rev. Stat. 1975, ch. 120, par. 501(1).

PTAB rejected both sales. It deemed the Tazewell tract sale to lack comparability because it was for highway purposes, a use for which the WABCO property was not shown to be needed. PTAB also questioned whether the sale was an “arm’s length transaction.” It rejected substantial use of the Peoria County sale because the proximity of the land to the existing test grounds would have enhanced its value to Caterpillar. PTAB also noted that a $1,200 valuation for WABCO would be inconsistent with the average assessment of vacant land in Woodford County.

PTAB based its $2Q0-per-acre assessment upon a comparison to the assessments of various tracts of land near the WABCO tract, all of which were zoned for agricultural purposes. These tracts ranged from 5 acres to 160 acres in size and had assessed valuations of from $108 to $237 per acre as to the tillable portion and from $95 to $137 per acre as to the untillable portion. The PTAB order stated that the value of the WABCO property would not exceed the value of the surrounding properties and “would not exceed the value of what it could be replaced for.” It concluded that those assessments, when multiplied to full value, indicated the cost for WABCO to purchase comparable ground in the area. It stated that the WABCO property was not special in nature and should be “assessed uniformly with surrounding property.”

With reference to the de novo hearing to be held by PTAB on appeals from boards of review, sections 111.2 and 111.4 of the Revenue Act of 1939, provide in pertinent part:

«o 8 e §ucjj procedure, to the extent that the Board considers practicable, shall eliminate formal rules of pleading, practice and evidence, and except for any reasonable filing fee determined by the Board, may provide that costs shall be in the discretion of the Board. 6 ° *” (Ill. Rev. Stat. 1979, ch. 120, par. 592.2.)
“eee jBe Board shall make a decision in each appeal or case appealed to it, and such decision shall be based upon equity and the weight of evidence and not upon constructive fraud, and shall be binding upon appellant and officials of government. * ° *” (Ill. Rev. Stat. 1979, ch. 120, par. 592.4.)

Besides being aware of the informal nature of the proceedings envisioned, the parties are aware that section 11 of the Administrative Review Act (111. Rev. Stat. 1979, ch. 110, par. 274) states: “The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” They also realize that ordinarily the decision of such an administrative agency can be set aside on administrative review only when the decision is without substantial foundation in the record or is against the manifest weight of the evidence. (Farny v. Civil Service Com. (1973), 10 Ill. App. 3d 80, 293 N.E.2d 450.) However, they also realize that on administrative review from PTAB, a court may reverse an order of assessment based upon “an improper method of valuation” as distinguished from the situation where the court has “a mere difference of opinion” with PTAB “as to the market value of a particular piece of property.” Chrysler Corp. v. Illinois Property Tax Appeal Board (1979), 69 Ill. App. 3d 207, 211, 387 N.E.2d 351, 354; Consolidation Coal Co. v. Property Tax Appeal Board (1975), 29 Ill. App. 3d 465, 331 N.E.2d 122.

The trial court found the PTAB decision to be both based upon an improper method of valuation and contrary to the manifest weight of the evidence. Its opinion indicated that the three recognized methods of valuation of property were the market value, the replacement value and income value approaches. It correctly concluded that the market value approach was proper here and that the other two would have been inappropriate. We agree. As the property was not rented or rentable, the income approach could not be used. The court interpreted the language of the PTAB opinion to indicate that the replacement value approach was used but that the comparable sales of the Caterpillar testing ground properties should have been used as a basis instead. The court concluded that, had they been used, the proper market value approach would have been used. Because of the existence of sales data of property it deemed comparable, and because it thought PTAB gave too little consideration to the zoning classification of the WABCO tract, the trial court also found the PTAB decision contrary to the manifest weight of the evidence.

Although the PTAB order stated the value of the tract would not exceed that of the surrounding land or that for which it could be replaced, we do not interpret it to have been using the replacement cost method of valuation. That method involves consideration of the cost of replacing improvements on real estate. (Chicago Land Clearance Com. v. Darrow (1957), 12 Ill. 2d 365, 146 N.E.2d 1.) Here, the tract involved was not greatly improved, and the comparison discussed by PTAB was not with costs of replacing the improvements but that of acquiring similar land.

In Will County Board of Review v. Property Tax Appeal Board (1971), 48 Ill. 2d 513, 272 N.E.2d 32, the PTAB was confronted with the task of determining a proper assessment of property of the Metropolitan Sanitary District of Greater Chicago lying in the bed of the Des Plaines River. There, as here, the PTAB considered, and based its assessment upon, a comparison with assessments of adjacent unimproved tracts being used for various purposes, including farming. The supreme court noted that the PTAB was “not bound by formal rules of evidence” and that the Board of Review’s “contention that all evidence of comparative values ‘requires a recent, bona fide voluntary sale of property similar in locality and character to that in question’ is unsound as applied to the assessment of property for taxation.” (Emphasis added.) (48 Ill. 2d 513, 519, 272 N.E.2d 32, 36.) Here, as in Will County Board of Review, the property whose assessments were compared and the property whose assessment was in question were all the same county and subject to the same multiplier. (Ill. Rev. Stat. 1979, ch. 120, par. 632.) We thus conclude that, here, PTAB was not using a method of replacement cost but one of comparative values and was attempting to find market value in this way. In any event, regardless of the nomenclature given to the method used, under the foregoing precedent, the method was proper.

Neither the rejection by the PTAB of the data concerning the Caterpillar tracts nor the fact that the WABCO tract was zoned for industrial use while the “comparable” properties were zoned otherwise rendered the PTAB decision contrary to the manifest weight of the evidence. The need for one of the Caterpillar tracts for highway purposes detracted from its comparability to the WABCO tract. The tract sold to Caterpillar to enlarge its existing tract was of enhanced value for that reason. All of the Caterpillar tracts had different location values than the WABCO tract. Some evidence indicated that the sole purpose of WABCO obtaining an industrial classification for its tract was so that it would not be prohibited from continuing its activities there and that the tract had no foreseeable use for other industrial purposes. The PTAB could have concluded that the zoning of the tract did not add much to its value. The WABCO assessment was substantially higher than most of the nontillable surrounding agricultural land. Even though reasonable minds could conclude that the assessment of the tract was too low, that would not make the assessment contrary to the manifest weight of the evidence or without substantial support in the record.

Neither the rejection of proper evidence by the administrative agency whose order is under review nor its receipt of improper evidence would, of themselves, be grounds for reversal by a reviewing court.

For the reasons stated we reverse the decision of the circuit court and affirm the decision of the PTAB.

Reversed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    DONALD F. SIZELOVE, Plaintiff-Appellant, v. INA INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellees.—(THE WESTERN FIRE INSURANCE COMPANY et al., Defendants.)
    Fourth District
    No. 17385
    Opinion filed March 11, 1982.

      Luedtke, Hartweg & Turner, of Bloomington (John R. Luedtke, of counsel), for appellant.
    Heyl, Royster, Voelker & Allen, of Urbana (William J. Voelker, Jr., James C. Kearns, and Edward M. Wagner, of counsel), for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Plaintiff brought a declaratory judgment action seeking to have the court declare that certain fire insurance policies were in effect on the date his building was destroyed by fire. The trial court granted summary judgment to INA and Hartford, holding that plaintiff’s purchase of new policies shortly before the fire coupled with plaintiff’s communication to the insurer of plaintiff’s intent to cancel his existing policies operated to cancel the existing policies under the doctrine of cancellation by substitution. Plaintiff appeals from that order.

Plaintiff owned land and a building located in Bloomington. The building and its contents were destroyed by fire on January 23, 1979.

Shortly after purchasing the property, plaintiff obtained fire insurance through a local agency, the Frisch-Hodnett Agency. Frisch-Hodnett contacted another local agency, Capen, Frank, Proctor and Bowles (CFPB), and asked if CFPB would procure the insurance. CFPB obtained policies in an aggregate amount of approximately $125,000. Plaintiff also obtained additional coverage totalling $55,000 through another local agent, Bernard Jacobs.

In the fall of 1978, plaintiff asked John Bova of Clemens and Associates to obtain new and different coverage in an amount of $300,000 and to take steps to place plaintiff’s insurance coverage with Bova. Bova contacted several insurance companies and obtained four policies with aggregate coverage totalling $300,000.

Bova received these policies on January 11, 1979. On that date, he sent a letter to C. William Frank of CFPB. Bova wrote:

“Bill: We did get the policies changed and we would appreciate any return premiums be forwarded to our office. We got the fire and comprehensive general liability coverages. Thank you. John Bova.”

Frank’s secretary telephoned Bova on January 18,1979. Bova was out of town. Frank’s secretary left a message for Bova to call CFPB. When Bova returned on January 22, 1979, he called Frank’s secretary. She told him that either the original policies or lost policy releases would be needed in order to cancel the existing policies.

On January 22, 1979, Frank’s secretary sent the following memorandum to John Bova:

“Please have Don Sizelove sign the attached lost policy releases and we will order cancellation effective 11-15-78. Please type in a policy number for each under the reason for cancellation in case the insuring companies get huffy over our late request. Thank you for your help.”

On that same date, she sent the following letters to INA and Hartford:

To INA:

“We have been advised that the insured purchased duplicate coverage from another agent effective 11-15-78. As soon as I get lost policy release and new policy number, I’ll forward on to you.”

To Hartford:

“Please be advised that we will be sending above back to you for cancellation effective 11-15-78. Insured purchased from Clemens and Associates. As soon as I get a lost policy release, I’ll send it in.”

Frank stated that the usual procedure was to forward the original policy or policy releases along with new policy numbers to the insurance company and request that they cancel the existing policies. The defendant insurance companies never issued any credit memoranda regarding these policies. Neither the plaintiff nor John Bova ever received a refund of the unearned premiums from INA or Hartford.

Plaintiff’s building was destroyed by fire in the early morning hours of January 23,1979. INA and Hartford have denied liability, claiming that their policies were not in effect on the date of the fire.

The trial judge entered an order on February 25, 1981, granting defendants’ motion for summary judgment. In his order, Judge Knecht discussed the doctrine of cancellation by substitution. He stated that the act of securing new coverage with the intent of replacing existing coverage coupled with the mutual consent of the parties will result in the cancellation of the existing policies. He discussed the facts of the instant case which made the doctrine of cancellation by substitution applicable:

“In short, (1) replacement insurance was secured; (2) the intent to cancel was present; (3) the Plaintiff desired only $300,000 of coverage; (4) communication occurred between Bova and CFPB; (5) a request to cancel was made; (6) and CFPB indicated some additional paperwork was needed to formalize the cancellation. Bova was Plaintiff’s agent and CFPB was Hartford and INA’s agent. Plaintiff’s agent actively sought cancellation and a premium refund. Plaintiff did not want nor did he expect to have coverage in excess of $300,000. The conduct of defendants’ agent constituted an acceptance of the notice requesting cancellation. If no fire had occurred, the only issue between the parties would be the amount of Plaintiff’s premium refund.”

The issue now before us is whether obtaining a new insurance policy with the intent to have the new policy replace existing coverage coupled with notification to the insured’s old agency of this intent operates as a cancellation of the existing policies by substitution.

Three recent Illinois cases have dealt with the doctrine of cancellation by substitution: Lee v. Ohio Casualty Insurance Co. (1978), 58 Ill. App. 3d 1, 373 N.E.2d 1027, Continental Casualty Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 402, 402 N.E.2d 756, and Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 414 N.E.2d 768.

In Lee, plaintiffs were the lessors of a building destroyed by fire on November 6, 1973. Prior to the fire, plaintiffs had $178,000 in coverage through various insurers. On November 2, 1973, plaintiffs obtained a 30-day binder from Illinois National Insurance for $180,000 of fire coverage. Plaintiffs intended to cancel their existing fire policies when they received the new policy. The existing insurers had no knowledge of plaintiff’s intent.

After the fire, the original insurers refused to pay, claiming that their policies were automatically cancelled when plaintiffs obtained a binder from Illinois National. The trial court found for the original insurer.

On appeal, this court rejected the doctrine of automatic cancellation by substitution. We refused to find that the existing policies had been cancelled by substitution of new policies where plaintiffs (1) purchased insurance from a new agent; (2) did not surrender the existing policies; (3) did not notify the original insurers of their desire to cancel; and (4) did not intend to cancel until the new policies were received.

Continental Casualty Co. was a declaratory judgment action brought by plaintiff insurance company seeking to have a second insurer declared a co-insurer of loss suffered by one of plaintiff’s policy holders. In Continental Casualty Co., a policy holder (Wagley) wanted different insurance because the premiums on his existing policy had increased. Wagley’s agent obtained a binder from defendant through a broker, Corroon & Black. This binder extended the current coverage, which was about to expire, until a less expensive policy could be obtained.

Wagley purchased a new policy from plaintiff through Corroon & Black on January 29. On January 30, plaintiff issued a binder covering Wagley’s property effective January 15. No formal document was prepared cancelling defendant’s binder on January 30. In the normal course of events, a cancellation notice would have been given to defendant in three or four days, cancelling the binder effective January 15. Wagley’s property was damaged by fire on January 31.

Plaintiff sought contribution from defendant. The trial court granted defendant’s motion for summary judgment, finding that defendant’s agent intended to cancel defendant’s binder by substituting the binder of plaintiff.

The First District affirmed the grant of summary judgment. The court agreed with Lee, stating that more than a mere intent to cancel must be shown. However, the court affirmed the grant of summary judgment on the basis that mutual consent to cancel existed between defendant and Wagley. The court listed several factors which led to this conclusion: (1) the insured did not want double coverage; (2) Corroen & Black issued defendant’s binder-on a temporary basis, knowing that it was to be replaced when less expensive insurance was obtained; and (3) Corroon & Black’s knowledge was chargeable to the defendant.

In Songer, plaintiff took out a policy on his farm house with Country Mutual in 1973. Plaintiff became dissatisfied with the coverage, and he obtained a binder from State Farm. Shortly thereafter, fire destroyed plaintiff’s farm house. No notice of cancellation was given to Country Mutual, nor did Country Mutual refund any unearned premium. The Fifth District found Country Mutual liable for its pro rata share of the loss, relying heavily on the principles enunciated in Lee.

Each of these cases clearly rejects the doctrine of automatic cancellation by substitution, i.e., the act of procuring new coverage with the intent that it would replace existing coverage does not, standing alone, operate to cancel the existing coverage. However, none of the cases announces a clear and concise rule to aid courts in deciding whether cancellation by substitution has taken place.

We are persuaded that a party desiring application of the doctrine of cancellation by substitution must show (1) that the insured secured substitute coverage and either acted in such a manner as would disclose to the insurer an intent to cancel the existing coverage or requested cancellation under the terms of the existing policy; or (2) that the insured secured substitute coverage and that mutual consent to cancel the existing coverage existed between the insured and the insurer.

Clearly, plaintiff intended to replace the existing policies with the new policies, as enumerated above in the six points of the trial court’s order.

Defendant also established that an agreement to cancel existed between plaintiff and defendant. Bova notified Frank on January 11 that new coverage had been obtained. Frank’s secretary informed Bova that when plaintiff executed the lost policy releases, cancellation would be ordered effective November 15, 1978. Frank’s secretary also notified defendants of the cancellation. The execution of the lost policy releases was merely a ministerial act. Had the fire not occurred when it did, plaintiff would have executed the lost policy releases, the insurance company would have followed its normal procedures, and the policy would have been cancelled effective November 15, 1978.

We find that the facts support the finding by the trial court that the policies issued by the defendants were cancelled by substitution.

The judgment of the circuit court of McLean County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    ROBERT M. THORNTON et al., Plaintiffs-Appellees, v. RHODUS MOBILE HOMES, INC., Defendant.—(McLEAN COUNTY BANK, Garnishee-Appellant.)
    Fourth District
    No. 17393
    Opinion filed March 11, 1982.

      Thomas M. Barger, III, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellant.
    John N. Stevens, of Arnold, Gesell, Schwulst & Stevens, of Bloomington, for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal raises as its principal issue whether a bank account, commonly called a “reserve account,” is subject to garnishment.

Plaintiffs obtained a judgment against defendant Rhodus Mobile Homes, Inc. (Rhodus), and then instituted garnishment proceedings against the garnishee McLean County Bank (Bank). The circuit court of McLean County entered judgment in favor of the plaintiffs and against the Bank, which appeals. We reverse.

Some background, as developed by testimony at the garnishment hearing, is necessary to an understanding of the issue. From what has been said in the briefs before this court and in oral argument, it appears that the reserve account is a common device in general use particularly in the area of financing automobiles and related articles, as in this case mobile homes. It further appears that no set pattern for the creation or administration of such accounts exists, but each lending institution develops its own practices in this regard, although they all share a common purpose.

In the instant case, over a period of years, Rhodus had been financing the sale of its mobile homes with the Bank. The general method was for Rhodus to prepare a retail installment contract for its customer. The contract would then be sold to the Bank at a lower interest rate than that charged by Rhodus to its customer. The difference between the rate called for in the contract and the rate at which the Bank purchased was placed in a reserve account under Rhodus’ name, although only the Bank had access to the reserve account.

The purpose of the reserve account was generally to protect against potential losses. If the buyer of the mobile home were to prepay his contract, or if he were to default, the reserve account was available to cover such situations. Also, since the contracts were sold to the Bank with recourse against Rhodus, the reserve account would likewise be available to cover any actions of Rhodus which might cause a loss and to cover any prepayment or default by the purchaser if Rhodus were no longer in business. If, in the future, there were no outstanding obligations of Rhodus to the Bank, any balance in the reserve account at that time would be payable to Rhodus.

An official of the Bank testified that all reserve accounts in the Bank were handled in the same manner. He further testified that although there were corporate resolutions on file for the general banking business of Rhodus, no such resolutions had ever been obtained for the reserve account. The signature card, introduced into evidence, showed that only four persons, all officers or employees of the Bank and none connected with Rhodus, were authorized to make withdrawals from the reserve account. However, from the time of its institution in 1969 until it was closed in 1980, statements of the reserve account showing deposits and withdrawals were furnished to Rhodus and no objection was ever made.

The official further testified that at the time of service of the garnishment summons funds did exist in the reserve account, but that demand had been made by the Bank of Rhodus under the recourse provisions of the contracts for payment of three contracts which were in default.

While there was some initial distraction in the record concerning the burden of proof and whether there might be some question of offset, the real issue as drawn by the parties is whether the reserve account was subject to any contingency. The order of the trial court finds that the reserve account is the property of the judgment debtor, Rhodus, that there is no “offsetting demand” in the Bank within the meaning of section 8 of the Garnishment Act (Ill. Rev. Stat. 1979, ch. 62, par. 40), and that the reserve account is a proper subject of garnishment proceedings.

It is beyond debate that a liability which is subject to a contingency at the time the answers to garnishment interrogatories are filed is not garnishable. In Pressed Steel Equipment Co. v. Thornburgh Pressteel Co. (1923), 228 Il. App. 1, affd (1924), 312 Ill. 359, 144 N.E. 6, the garnishee purchased accounts receivable at face, or 100%, value; 77% was paid over in cash and 23% was retained as security. When the account was paid in full, the 23% was then paid over, but until that time the court held it to be contingent, saying:

“We think it is clear, and it is not questioned, that while the purchase price of the accounts was based on their face value yet the contract contemplated that twenty-three per cent thereof should be payable out of the accounts assigned and collected, and when and as collected, and that if not collected no indebtedness would arise for the twenty-three per cent or any portion thereof that those collected would not pay. Hence a liability for any part of the twenty-three per cent was contingent and uncertain in its nature.” (228 Ill. App. 1, 5.)

The court stated that, assuming the accounts were reasonably good, a future indebtedness was probable, but at the time of filing the garnishment answer it was not capable of ascertainment or computation and hence was contingent. The court then noted the long standing rule that if a liability is contingent, it is not subject to garnishment. Accord, Morphet v. Morphet (1958), 19 Ill. App. 2d 304, 152 N.E.2d 492; Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630.

Plaintiffs do not seriously dispute this rule, but rather claim that contingency is a matter of fact to be determined by the trial court whose judgment should not be overturned unless manifestly erroneous. They cite Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518, for the proposition that if there be “any evidence” upon which to support the trial court, an appellate court may not interfere. While the Brown court did use the term “any evidence” in the course of its opinion, it concluded by saying, “[T]his court will not substitute its judgment as to the credibility of witnesses for that of the trial court, and will not disturb the findings unless they are manifestly against the weight of the evidence.” (Emphasis added.) (18 Ill. 2d 94, 102, 163 N.E.2d 518, 523.) We conclude that the standard remains that of manifest weight.

In analyzing the evidence, plaintiffs draw attention to National Home, Inc. v. American National Bank & Trust Co. (1958), 16 Ill. App. 2d 111, 147 N.E.2d 412, and argue that the significance of that case, although it held the liability to be contingent relying on Pressed Steel, was the large quantum of evidence produced. We do not agree. The opinion indicates that the case was tried upon the garnishment answers and certain agreed facts and without hearing evidence. In the instant case, the record indicates that the trial court stated, and counsel agreed, that neither party would have any evidence to produce other than the testimony of the Bank official. The quantity of evidence, as distinct from its quality, is seldom significant in any litigation. Evidence, and its preponderance, is to be determined from its value and weight, not from the mere number of witnesses and exhibits on one side or the other. (Ridgway v. Crum (1951), 343 Ill. App. 12, 98 N.E.2d 394.) Even if quantity were a factor, plaintiffs are bound in the instant case by their assent to the production of one witness for the entire case.

It is undisputed, as plaintiffs argue, that the reserve account here represented Rhodus’ profits, that it was held in Rhodus’ name, and that no corporate resolution existed for its establishment or disposition. However, it is also undisputed that from 1969 until its dissolution in 1980, Rhodus was supplied with statements, knew of the existence of the account and its purpose, and never raised any questions or objections. Authority may be manifested in many ways, one of which is ratification by silence. We find instructive the language in Freeport Journal-Standard Publishing Co. v. Frederic W. Ziv Co. (1952), 345 Ill. App. 337, 103 N.E.2d 153:

“Silence under such circumstances that, according, to the ordinary experiences and habits of men, one would naturally be expected to speak if he did not consent, is evidence from which ratification can be found.” 345 Ill. App. 337, 350, 103 N.E.2d 153, 158-59.

We believe that the facts here establish a clear ratification of the nature of the reserve account by Rhodus.

Undoubtedly the case would be much clearer if there had been a written agreement concerning the reserve account. However, its absence is not fatal. The Bank official testified fully and completely as to the purpose of the account and how it was handled mechanically. This testimony was uncontradicted. A reviewing court may not presume that there were aspects of a witness’ uncontradicted testimony, not apparent in the record, which would justify the trial court in disregarding that testimony. (People v. Patterson (1980), 88 Ill. App. 3d 144, 410 N.E.2d 223.) In the instant case the trial court’s result can be reached only by disregarding the Bank official’s testimony regarding the reserve account.

In sum, we hold that the Bank proved its affirmative defense of contingency and the reserve account was not subject to garnishment.

Plaintiffs make a final argument that the matter of contingency was not raised in the trial court and hence cannot be raised on appeal. We disagree. It is true that in its garnishment answers to interrogatories the Bank did not use the term “contingency” specifically. It spoke rather of “offset.” However, the answers describe in detail the operation of the reserve account and its potential ultimate disposition. The label may be missing but the contents are clear. The argument is without merit.

The order of the circuit court of McLean County is reversed.

Reversed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    DAN E. GILLESPIE, Plaintiff-Appellee, v. THE CITY OF MAROA, Defendant-Appellant.
    Fourth District
    No. 17441
    Opinion filed March 11, 1982.

      Brown, Hawkins, Basóla & Mattingley, of Decatur (Gregory A. Mattingley, of counsel), for appellant.
    Harry J. Westfall, of Decatur, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Arrest by city police officer for disorderly conduct — no charges filed — City and officer sued for unlawful arrest — out of court settlement between arrestee and officer — suit against officer dismissed with prejudice.

Must the City now indemnify the officer for the amount of the settlement?

No.

We reverse.

On September 16,1973, plaintiff was employed by the City of Maroa as a police officer. While on routine patrol, he stopped a vehicle driven by Julian T. Liming for two minor traffic violations. Liming became belligerent and abusive and was arrested by plaintiff on charges of disorderly conduct. The Macon County State’s Attorney did not file any charges against Liming as a result of this incident. Liming subsequently sued both plaintiff and defendant for unlawful arrest. Initially, both parties were represented by the same law firm and defendant thus had actual notice of the pendency of the lawsuit against plaintiff. Plaintiff did not, however, provide defendant with a separate written notice of Liming’s lawsuit against him. Eventually, Liming and plaintiff effected an out-of-court settlement of their dispute. Under terms of the settlement agreement, plaintiff paid Liming $500 and Liming executed a release in plaintiff’s favor. The release provided, inter alia, that Liming would direct his attorney to move for dismissal with prejudice of his lawsuit against plaintiff. On March 19,1981, plaintiff filed suit in the small claims division of the Macon County circuit court, seeking indemnification from the City of Maroa for the amount of the settlement. Following a bench trial, judgment was entered in favor of plaintiff in the amount of $500. Defendant appeals from this judgment.

At the outset, we note that plaintiff failed to file a brief in this appeal. This does not, however, require pro forma reversal of the trial court’s judgment, and since we are confronted with a relatively simple record, we may decide the merits of this appeal. See People v. Athey (1976), 43 Ill. App. 3d 261, 356 N.E.2d 1332.

I

Defendant initially contends that plaintiff’s failure to give separate written notice of the pendency of Liming’s lawsuit against him bars plaintiff’s claim for indemnity. At issue here is the interpretation to be accorded the notice requirement of section 1 — 4—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—6). Section 1 — 4—6 reads in pertinent part as follows:

“In case any injury to the person or property of another is caused by a member of the police department of a municipality “ * the municipality * * * shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the policeman * * *. Any policeman, or any person who, at the time of the performing such an act complained of, was a policeman, who is made a party defendant to any such action shall, within 10 days of service of process upon him, notify the municipality by whom he is or was employed, of the fact that the action has been instituted, and that he has been made a party defendant to the same. Such notice shall be in writing, and shall be filed in the office of the city attorney or corporation counsel, if there is a city attorney or corporation counsel, and also in the office of the municipal clerk, either by himself, his agent, or attorney. The notice shall state in substance, that such policeman, (naming him), has been served with process and made a party defendant to an action wherein it is claimed that a person has suffered injury to his person or property caused by such policeman; stating the title and number of the case; the court wherein the same is pending; and the date such policeman was served with process in such action, and made a party defendant thereto. * * * The duty of the city to indemnify any such policeman for any judgment recovered against him shall be conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described.” (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—6.)

Defendant admits that it had actual knowledge of Timing’s lawsuit against plaintiff. The issue, thus, is whether actual notice of the pendency of the lawsuit negates the necessity of compliance with the notice requirements of section 1 — 4—6 of the Municipal Code in order for a policeman to obtain indemnification pursuant to that section.

We have discovered no authority as to the effect to be accorded section 1 — 4—6 of the Municipal Code in this type of situation. The public policy considerations underlying the construction which has been given the notice requirement of section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102), do, however, provide us with some guidance as to the resolution of this issue. Section 8 — 102 prescribes the type of notice which is to be given by one who commences a civil action for damages against a local public entity or its employees. Formerly, the filing of a lawsuit within the period prescribed by section 8 — 102 for giving notice did not constitute compliance with the notice requirement. (Erford v. City of Peoria (1907), 229 Ill. 546, 82 N.E. 374.) This interpretation of section 8 — 102 was explicitly overruled, however, in Dunbar v. Reiser (1976), 64 Ill. 2d 230, 356 N.E.2d 89. There, no notice was served on the city within the six-month period which section 8 — 102 then prescribed, but suit was filed against the municipality within one month after the incident complained of. The court held that since under these circumstances, modern discovery procedures afforded the municipality the opportunity to obtain even more information about the incident than could be obtained from a notice which completely conformed to the requirements of section 8 — 102, the filing of suit within the notice period satisfied the notice requirements of that statute. The same considerations which caused the Dunbar court to hold that the filing of suit within the notice period satisfies the notice requirement of the Tort Immunity Act, necessitate the formulation and application of a similar rule in regard to the type of situation with which we are confronted here. The clear purpose of statutory notice provisions involving actions against governmental entities is to encourage early investigation into claims asserted against the entity, at a time when the matter is still fresh, witnesses are available, and conditions have not materially changed. (Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176.) In the present case, the City of Maroa, having been sued jointly with plaintiff, and having been represented for a time by the same law firm as plaintiff, obviously had knowledge of the pendency of Timing’s lawsuit against plaintiff, and itself being a defendant in the action, had as ample an opportunity to investigate the basis of Timing’s claim against plaintiff as it would have had if plaintiff had fully complied with the notice requirements of section 1 — 4—6 of the Municipal Code. Therefore, we conclude that under the circumstances involved here, plaintiff’s failure to comply with the notice requirements of section 1 — 4—6 of the Municipal Code is not in itself a bar to his claim for indemnity.

II

Defendant next argues that the word “judgment,” as used in section 1 — 4—6 of the Municipal Code (111. Rev. Stat. 1979, ch. 24, par. 1 — 4—6), does not encompass an amount paid pursuant to a settlement agreement which results in dismissal with prejudice of the underlying lawsuit. In support of its argument, defendant relies on section 2 — 302 of the Tort Immunity Act which provides in pertinent part as follows:

“If any claim or action is instituted against an employee or former employee of a local public entity based on an injury allegedly arising out of an act or omission occurring within the scope of his employment as such employee, the entity may elect to do any one or more of the following:
(a) Appear and defend against the claim or action;
(b) Indemnify the employee or former employee for his court costs incurred in the defense of such claim or action;
(c) Pay, or indemnify the employee or former employee for a judgment based on such claim or action, or
(d) Pay, or indemnify the employee or former employee for, a compromise or settlement of such a claim or action.” (111. Rev. Stat. 1979, ch. 85, par. 2 — 302.)

Defendant contends that section 1 — 4—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—6) and the above section of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 302) are in pari materia and that if “judgment” were construed as encompassing all settlements, subsection (d) of section 2 — 302 of the Tort Immunity Act would be superfluous.

Statutes are in pari materia when they have the same purpose or object (People ex rel. Community High School District No. 231 v. Hupe (1954), 2 Ill. 2d 434, 118 N.E.2d 328) or relate to the same person or thing (People ex rel. Tilley v. New York, Chicago & St. Louis R.R. Co. (1936), 364 Ill. 456, 4 N.E.2d 867). Section 1 — 4—6 of the Municipal Code and section 2 — 302 of the Tort Immunity Act are thus obviously in pari materia in that they relate to reimbursement of police officers for claims for damages which are filed against them arising out of acts committed in the course of their employment and set forth the conditions under which policemen may be reimbursed for the amount of such damages by their municipal employers.

Having determined that these two statutory provisions are in pari materia, a close look at section 2 — 302 of the Tort Immunity Act reveals that for purposes of section 1 — 4—6 of the Municipal Code, “judgment” must not be interpreted as encompassing an out-of-court settlement of the type involved here. If “judgment” were read as encompassing a settlement of this type, subsection (d) of section 2 — 302 of the Tort Immunity Act which provides that governmental entities may pay, or indemnify employees for settlements or compromises of certain claims filed against them, would conceivably apply only to those situations where an employee settles a claim before a suit is even filed or where a settlement is made and the underlying lawsuit is not dismissed. Both of these situations obviously occur rarely, if ever. Thus, an interpretation of “judgment” as encompassing an out-of-court settlement which results in dismissal with prejudice of the relevant lawsuit would render subsection (d) of section 2 — 302 of the Tort Immunity Act redundant. Since a statute should be construed so as to give effect to all of its provisions so that no part thereof is inoperative, superfluous, or ineffective (Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 153 N.E.2d 72), we cannot construe the term “judgment,” as used in section 2 — 302 of the Tort Immunity Act, as encompassing an out-of-court settlement of the kind which we have here. Since words in in pari materia statutes should be construed in a uniform manner (see Commissioner of Internal Revenue v. Estate of Ridgway (3d Cir. 1961), 291 F.2d 257), we must hold that “judgment,” as used in section 1— 4 — 6 of the Municipal Code, likewise does not encompass an out-of-court settlement resulting in dismissal with prejudice of the underlying lawsuit. Because Liming did not, therefore, recover a judgment against plaintiff for purposes of section 1 — 4—6 of the Municipal Code, that statute does not require defendant to indemnify plaintiff for the amount of plaintiff’s settlement with Liming.

Ill

Defendant further contends that plaintiff’s immunity from liability when arresting Liming provides an independent basis for denial of plaintiff’s claim for indemnification for the amount of his settlement with Liming. As support for this proposition, defendant relies on section 2— 202 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 202) as construed in Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144. Section 2 — 202 of the Tort Immunity Act reads as follows:

“A public employee is not liable for his action or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.” (Ill. Rev. Stat. 1979, ch. 85, par. 2 — 202.)

The Arnolt court held that if a policeman is immune from liability because of section 2 — 202 of the Tort Immunity Act, there is no duty to indemnify him under section 1 — 4—6 of the Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1 — 4—6). In the present case, the trial court did not specifically find that plaintiff was engaged in “the execution or enforcement” of a law at the time of Timing’s arrest, but it did find that Timing’s suit against plaintiff arose “out of an arrest situation”; that at the time of the arrest, plaintiff was “performing his duty as a police officer”; and that “there was no wilful conduct on the part of plaintiff.” We deem this holding, especially the finding that plaintiff did not engage in wilful conduct at the time of the arrest, to be the equivalent of a decision that plaintiff, at the time of Timing’s arrest, was engaged in a good faith effort to enforce a law and was thus immune from liability for any alleged damages arising out of the arrest. (See Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 367 N.E.2d 478.) It follows that plaintiff’s immunity at the time of the arrest necessarily precludes any duty on the part of defendant to indemnify him for the amount of the settlement which he effected with Liming.

For the foregoing reasons, the judgment of the circuit court of Macon County must be reversed.

Reversed.

GREEN, P. J., and WEBBER, J., concur.


text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. WESTON ROODHOUSE et al., Defendants-Appellants.
    Fourth District
    No. 17041
    Opinion filed March 16, 1982.

      Charles E. Theivagt, of Gustine & Theivagt, Ltd., of Carrollton, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Roy Frazier and D. A. McGrady, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The Department of Public Works and Buildings, predecessor to the Department of Transportation, condemned 9.66 acres of farmland owned by the defendants. A quick-take followed. The defendants appeal the judgment awarding compensation of $17,245, but because their incorrect post-trial motion practice has deprived this court of jurisdiction, we dismiss the appeal.

The defendants lost their time to appeal by filing successive post-trial motions attacking first the judgment and then the denial of their earlier motion. In Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610, the supreme court held that filing successive post-trial motions does not extend a party’s time to appeal.

In this case the jury returned its verdict and the trial court entered judgment on it September 22, 1978. The defendants filed their first post-trial motion October 19,1978; this was timely (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(3)). The trial court denied the motion May 30,1980 — the lengthy gap between the date of filing and the date of ruling is attributable to a series of continuánces and delays. The defendants’ second post-trial motion, filed June 25,1980, was one to reconsider the denial of their first. In a docket order entered two days later, the trial judge “temporarily” set aside the denial of the first motion. A written order denying the motion to reconsider was filed February 5,1981. The defendants filed their notice of appeal March 4,1981.

To perfect their appeal the defendants had to file the notice of appeal within 30 days of the denial of their first post-trial motion (73 Ill. 2d R. 303(a)); the motion to reconsider did not extend this time limit. In Sears the supreme court said that “[a] second post-judgment motion (at least if filed more than 30 days after judgment) is not authorized by either the Civil Practice Act or the rules of this court and must be denied. (Deckard [v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900].)” (85 Ill. 2d 253, 259, 422 N.E.2d 610, 612.) Sears “reaffirm[s] the rule of Deckard that successive post-judgment motions are impermissible when the second motion is filed more than 30 days after the judgment or any extension of time allowed for the filing of the post-judgment motion.” (85 Ill. 2d 253, 259, 422 N.E.2d 610, 613.) This rule applies to post-judgment motions made under sections 50(5) (defaults), 68.1 (jury trials), and 68.3 (bench trials) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 50(5), 68.1, 68.3).

To avoid the effect of this rule the defendants make several arguments. First, they point out that the order denying their motion to reconsider was drafted by the Department and proclaimed itself final and appealable. Under Sears, however, the trial court had lost jurisdiction over the case by that time. The Department did not waive the question of the court’s jurisdiction, for the question was raised in its motion to dismiss the defendant’s motion to reconsider. Furthermore, the Department’s participation in those proceedings did not revest the trial court with jurisdiction, for the Department was not pretending to retry the case. Sears v. Sears (1981), 85 Ill. 2d 253, 260, 422 N.E.2d 610, 613.

In a related argument, the defendants say that the Department’s motion to dismiss the motion to reconsider was not argued or decided and merely accompanied the brief in opposition. Even if that constitutes waiver this court must inquire into its own jurisdiction.

The defendants next argue that the trial court had the inherent power to vacate its final judgment within 30 days of entry, regardless of whether the denial of their first post-trial motion is considered a final judgment. A trial court does have that power, but the denial of a post-trial motion cannot be a final judgment in that sense, for “[a]n order denying a post-judgment motion is not itself a judgment, as that word is used in article VI, §6, of the 1970 Constitution or in Supreme Court Rule 303 (73 Ill. 2d R. 303), and is not an appealable order.” (Sears v. Sears (1981), 85 Ill. 2d 253, 258, 422 N.E.2d 610, 612.) The defendants are suggesting that the trial court had the authority to do exactly what Sears prohibits: extend its jurisdiction by granting relief from post-trial rulings.

One point not raised by the defendants but that requires discussion here is whether the trial court’s judgment of September 22,1978, disposed of all the issues in the case and was therefore final and appealable; only later did the Department recover the difference between the amount that it had deposited for the quick-take and the amount of compensation determined by the jury. In the summer of 1971 the Department deposited with the treasurer of Greene County the amount of preliminary compensation ordered by the court, $29,350, plus 25% of that amount, or $7,337.50, as then required in quick-take condemnations (Ill. Rev. Stat. 1969, ch. 47, par. 2.3(a)). On June 27, 1972, the defendants were permitted to withdraw from the county treasury $29,500 as compensation rather than $29,350; the reason for this overpayment of $150 is not explained in the record. The requirement that the condemnor deposit an additional 25% of the preliminarily determined amount of compensation was later removed from the statute (Ill. Rev. Stat. 1973, ch. 47, par. 2.3), and on January 8, 1980, the trial court ordered the treasurer to refund the Department the amount remaining in the pool, $7,187.50. In its order of February 5,1981, denying the motion to reconsider, the court ordered the defendants to refund the difference between the amount of compensation determined at trial and the total that they had withdrawn — in this fashion the Department recovered the mysterious $150 overpayment. The refund was authorized by section 2.7 of the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 2.7).

Although the entry of judgment on the jury’s verdict did not return to the Department the amounts owed to it by the county treasurer and the defendants, a review of the statutes and the case law discloses that the judgment was not any less final and appealable for failing to settle the accounts. Section 2.7 of the Eminent Domain Act provides:

“If the amount withdrawn from deposit by any interested party under the provision of Section 2.4 of this Act exceeds the amount finally adjudged to be just compensation (or damages, costs, expenses, and attorney fees) due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the petitioner and against such party.”

Quick-take “is a proceeding within a proceeding” (Department of Public Works & Buddings v. Dust (1960), 19 Ill. 2d 217, 218, 166 N.E.2d 36, 38); after filing a petition for condemnation the condemnor may move for a quick-take to gain early title to and use of the property. After the court has determined that the condemnor has the authority to expropriate the property — this determination is final and appealable — it must decide on a preliminary amount of compensation. The preliminary award is interlocutory rather than final and appealable. Dust.

In Department of Business & Economic Development v. Brummel (1972), 52 Ill. 2d 538, 542-43, 288 N.E.2d 392, 395, the supreme court said:

“The preliminary finding of just compensation by the court under section 2.2(c) of the Eminent Domain Act in no way affects the subsequent determination by the jury, and indeed under the statute may not be disclosed in any manner to the jury. It is an interlocutory determination and is not appealable. [Dust.] It is a procedure designed by the legislature to provide the owner with adequate assurance of the full payment of just compensation and to meet the constitutional objections to the immediate vesting of title without providing for payment in full of just compensation. [Citations.] Furthermore, if the landowner withdraws from the clerk’s office the amount of the preliminary determination of just compensation, and this amount is in excess of the ultimate award of the jury, the excess amount withdrawn must be refunded by the landowner. (Pars. 2.4 and 2.7.)”

Dust, Brummel, and the statute show that the order directing the condemnee to return the excess compensation is purely ministerial. The landowner is given a preliminary sum as an advance on the compensation ultimately awarded; the preliminary award is interlocutory and anticipates a final decision regarding compensation. That the defendants here had to return a portion of that advance was implicit in the entry of judgment. The judgment of September 22, 1978, was not any less final and appealable for not stating that explicitly.

We need not decide whether the removal of the 25% surcharge on preliminary awards applied to pending condemnation actions, for the Department was entitled to its refund from the county treasurer when the amount of compensation was finally determined.

In the alternative, the defendants’ claims of error are meritless. The defendants argue that the Department’s attorney made improper remarks during closing arguments and that the trial court should have entertained and granted their motion to dismiss and traverse the petition for condemnation.

The defendants did not timely object to the Department’s closing and rebuttal arguments, and the objections must therefore be considered waived unless the remarks were so prejudicial that they deprived the defendants of a fair trial (City of Quincy v. E. Best Plumbing and Heating Supply Co. (1959), 17 Ill. 2d 570, 162 N.E.2d 373). We conclude that the arguments were proper; if any error occurred, it was harmless.

The defendants’ motion to dismiss and traverse, filed seven years after the Department took title to the land, came too late. The motion raises points that were settled during the summer of 1971 when the trial court made its finding under section 2.2(b) of the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 2.2(b)) and should have been filed at that stage of the proceedings (see Department of Public Works and Buildings v. Neace (1973), 13 Ill. App. 3d 982, 301 N.E.2d 509).

Appeal dismissed.

GREEN, P. J., and WEBBER, J., concur.


text:
    CHARLES E. JOHNSON, Plaintiff-Appellant, v. MACON COUNTY BOARD, MACON COUNTY, Defendant-Appellee.
    Fourth District
    No. 17263
    Opinion filed March 16, 1982.

      Lloyd F. Latendresse, of Baird, Latendresse, McCarthy & Rowden, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, Charles E. Johnson, appeals his removal as county superintendent of highways of Macon County. He was removed from office by the County Board of Macon County (Board) following a finding of neglect of duty and malfeasance in office. The conduct which led to Johnson’s removal was a single incident of intoxication. Upon administrative review by the circuit court of Macon County, the court affirmed the Board’s order of removal but did find that the Board was in error in finding the plaintiff guilty of malfeasance in office.

Such terms as “neglect of duty” and “malfeasance in office” remain an abstraction until viewed in the light of the circumstances of each case. Therefore, we must discuss in some detail the factual background of the case at bar. At the time of the county board hearing, plaintiff was 55 years old and in his second six-year term in office, having first been appointed in October 1971. Johnson testified that on Thursday afternoon, December 4, 1980, he left his office at around 3 o’clock to make some inspections, after which he intended to go home. It was his intent to take the following day off to do things around his house, and he signed himself out for the following day in a book kept on the secretary’s desk for that purpose. After going home, Johnson received a telephone call which caused him to be “worked up,” and he therefore wanted to talk to Donald Cole, a highway department foreman, about the call. Johnson tried to telephone Cole at his house but talked to Cole’s wife who informed him that Cole was busy and would call him back. Cole did not return the call that evening, and Johnson and his wife left for a dinner dance. Johnson testified he had dinner, danced with his wife, and had four or five drinks but was home by midnight.

On the following morning, December 5, 1980, Johnson testified, he got up around 5:30 or 6 o’clock. He consumed some coffee but ate no breakfast and also took some medication for nephritis and hypertension. At about 7:30 a.m., Johnson left in a county car and met Donald Cole at the county highway depot. Johnson testified that he had a conversation with Cole at the depot; he told Cole that he was going to his office, then to make a final check on some guardrails, and then go home for the day. Johnson arrived at the county building at around 8 o’clock and chatted with the recorder of deeds for a few minutes before proceeding to his own office. According to Johnson, after getting to his office he received a telephone call from Cole who wanted to go with Johnson to examine the guardrails in case anything was wrong. Cole then informed Johnson that he would pick Johnson up in his car to go out to make the inspection. Cole then picked up Johnson at the county building, and they proceeded in Cole’s county car out to the inspection site, where they made the inspection. Thereafter, Cole then informed Johnson that he wanted to take Johnson to Cole’s home so that Johnson could talk to Cole’s wife about the telephone call of the previous evening. Cole, according to Johnson, wanted it explained to Johnson that the reason Cole had neglected to return Johnson’s call was that Cole’s wife had failed to inform him that Johnson had called. After arriving at Cole’s house, Johnson testified that he did not suggest having a drink to Cole, but that at Cole’s house, Cole did serve him with a double shot of whiskey and a beer. Johnson testified that he had consumed no alcoholic beverages prior to that time on the day in question. After having two drinks at Cole’s house, Johnson testified that he did not feel well and asked Cole to take him home. On the way to Johnson’s home, Johnson testified that he either went to sleep or blacked out. After arriving home, Johnson went to sleep on the living room couch.

The testimony of Donald Cole differed substantially from that of Johnson. Cole testified that it was Johnson who called him to take him to the inspection site and, after examining the guardrail site, Cole testified that it was Johnson who mentioned a couple of times about having a drink. Cole did not want to go anywhere with Johnson to have a drink, so he took Johnson to his house. According to Cole, each had a double shot of whiskey, and Johnson asked for another drink. Johnson then drank one beer and asked for another. As they were leaving Cole’s house, Johnson was carrying two cans of beer and stumbled and spilled one of them. During the drive to Johnson’s house, Johnson passed out, and, in Cole’s opinion, Johnson was intoxicated. After arriving at Johnson’s house, Johnson fell into the bushes, and Cole had to help Johnson out of the bushes and into the house. Cole did not see Johnson again until later that afternoon.

Johnson’s further testimony was that about 2:30 in the afternoon, he got up from the couch and telephoned Cole to take him to the county building to pick up his county car. Johnson also called his secretary and asked whether a certain piece of mail that he had been waiting to receive had arrived. While waiting for Cole, Johnson had another drink. As Johnson and Cole then proceeded to the county building in Cole’s county car, they passed the chairman of the transportation committee of the county board. Cole had informed the chairman earlier in the day that Johnson had been drinking that morning. The chairman of the transportation committee then proceeded to the county building and waited for Cole and Johnson to arrive. The chairman testified that he observed Johnson slumped in the seat of the car with his head hung to one side. He could tell from the way Johnson was sitting and the red condition of his face that Johnson had been drinking that day. The chairman then testified that he informed Johnson that he was suspended until further notice.

Johnson then went to his office in the county building in order to look at his mail. He testified he was in his office only for about 10 or 15 minutes and then drove directly home. According to Johnson’s secretary, Johnson was slumped at his desk and very red faced. He was sitting at his desk trying to read the mail but had great difficulty in using the dater stamp and would drop it on the floor. The chairman of the transportation committee then came into his office and again ordered him to go home.

Basing their decision upon the foregoing chain of events, the chairman and members of the transportation committee of the Macon County-Board brought a written petition before the Board charging the plaintiff with neglect of duty and malfeasance in office. The petition alleged that Charles E. Johnson was “guilty of neglect of duty and malfeasance in office in the following manner:

A. THAT on or about 7:30 a.m. of the said day and date, the said Charles E. Johnson drove a county highway vehicle to the county highway depot on 2400 North Woodford, Decatur, Illinois, and pulled his automobile into the drive to said depot preventing vehicles from entering or leaving said premises and engaged in a dispute with Don Cole, Foreman of the County Highway Garage, while under the influence of intoxicating liquor.
B. THAT at a later time, around 9:00 a.m., the said Charles Johnson had Donald Cole, the Macon County Highway Foreman, take him in a Macon County Highway car to the home of Don Cole and asked him to provide him with alcoholic beverages, which he did and which he drank and which eventually caused him to pass out and otherwise become further under the influence of intoxicating liquor, making him unfit to continue his duties that day.
C. THAT the said Donald Cole then delivered Mr. Johnson to his residence and was later called by Mr. Johnson to pick him up and return him to the County Building so that Mr. Johnson could bring home the county vehicle assigned to him, which was parked behind the County Building by Mr. Johnson that morning, and that at the time that Mr. Cole picked him up, he was in the process of consuming alcoholic beverages and consumed additional intoxicating beverages prior to returning to the County Building with Mr. Cole, all of which rendered him unfit to conduct his duties as County Superintendent of Highway.
D. THAT upon arriving at the Macon County Building, although in a state of intoxication, and having been ordered by the Chairman of the County Highway Committee not to take the county highway car, but to permit Donald Cole to drive him home, the said Charles Johnson did drive the county vehicle to his home, while under the influence of intoxicating liquor.
E. THAT during the time after he arrived at the Macon County Building, Charles Johnson attempted to conduct county business while in a state of intoxication and attempted to supervise other persons in his office while not in a condition to do so at said date, time and place.”

On January 28, 1981, the Board convened and heard the preceding evidence on the petition. Following the testimony of the witnesses, it was moved by a board member to remove Johnson as superintendent of highways. It was also moved that one vote should be taken as to whether all the subparagraphs had been proved alleging the neglect of duty and malfeasance in office. That motion was then amended to remove subparagraph (a) of the petition as it was believed that there was no testimony verifying that Johnson was intoxicated at 7:30 a.m. the morning of December 5, 1980. The motion to dismiss Johnson as superintendent carried by a margin of one vote. The plaintiff then filed a complaint for administrative review in the circuit court. On May 21, 1981, the circuit court entered a written order finding that the Board’s order of dismissal was not against the manifest weight of the evidence and affirmed the order of dismissal, but did make a finding that the Board’s finding of malfeasance in office was against the manifest weight of the evidence. The plaintiff now brings this appeal.

Removal from office of a county superintendent of highways is governed by section 5 — 203 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 5 — 203) which provides:

“Any county superintendent of highways may be removed from office by the county board for incompetence, neglect of duty or malfeasance in office. In any proceeding to remove a county superintendent of highways from office a petition shall be filed with the county board naming such officer as respondent and setting forth the particular facts upon which the request for removal is based. The county board shall set the matter for hearing not earlier than 5 days after service upon the respondent, which service shall be the same as in civil actions. The county board shall thereupon proceed to a determination of the charges and shall enter an order either dismissing the charge against the county superintendent of highways or removing him from office.
The decision of the county board is subject to judicial review under the Administrative Review Act as now or hereafter amended.”

Johnson contends on appeal that the acts of which he was accused would not, even if proved, constitute grounds for his removal as county superintendent of highways, and do not constitute either “malfeasance in office” or “neglect of duty.”

Although affirming the county board’s order of dismissal, the trial court held that the Board was in error in finding Johnson guilty of malfeasance in office. The written order notes that malfeasance, according to Black’s Law Dictionary, implies evildoing or dishonest conduct. The court found that Johnson’s conduct was not evil or dishonest and that the finding of malfeasance was against the manifest weight of the evidence. We agree that Johnson’s conduct cannot be characterized as “malfeasance in office.”

As most statutes involving removal of a public official or officer in Illinois require “cause” to justify removal, there is little authority defining malfeasance in office. What authority exists appears to be within a criminal context. In Summers v. People (1903), 109 Ill. App. 430, the defendant was charged with being guilty of malfeasance in office as a commissioner of highways for diverting public funds for repair of a private road. There was some question in that case as to whether or not the road in question was in fact a public or private road, and the court concluded that the defendant had acted in good faith but had exercised bad judgment. As the evidence did not show a corrupt motive, the court held that the defendant could not be found guilty of malfeasance in office.

The definition of “malfeasance” as set forth in Webster’s Second New International Dictionary 1489 (1941) is, “The doing of an act which a person ought not to do; evil conduct; an illegal deed.” The general rule seems to be that to warrant the removal of an officer for malfeasance in office, the malfeasance must have direct relation to, and be connected with, the performance of official duties, and amount to wilful and intentional neglect and failure to discharge the duties of the office. It also appears that malfeasance, as a ground for removal of a public officer, generally must have reference to evil conduct or an illegal deed or the performance of an act by an officer in his official capacity that is wholly illegal and wrongful. (63 Am. Jur. 2d Public Officers and Employees §190 (1972).) Without belaboring the point, we hold that since Johnson’s conduct did not involve any evil wrongdoing or illegal activity connected with his office, he could not be removed from office for malfeasance.

The question of whether Johnson’s conduct amounts to neglect of duty poses the more nettlesome problem. As with malfeasance in office, the term of neglect of duty has seemingly escaped definition in Illinois. While it has been held that neglect of duty would constitute cause (Hardaway v. Civil Service Com. (1977), 52 Ill. App. 3d 494, 367 N.E.2d 778), we believe that “cause” is a much broader concept than neglect of duty. It is well established in Illinois that cause is defined as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which law and public opinion recognizes as good cause for his no longer holding a position. (Fantozzi v. Board of Fire ir Police Commissioners (1963), 27 111. 2d 357,189 N.E.2d 275.) It is also established that the shortcomings need not be directly connected with the performance of the work. (Cutright v. Civil Service Com. (1970), 128 Ill. App. 2d 331, 262 N.E.2d 102.) The shortcomings, however, must not be so trivial or arbitrary as to be unreasonable. (Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 335 N.E.2d 126.) Since we believe the concept of neglect of duty is a more specific standard than cause, we do not consider the abundant authority regarding cause as being particularly helpful.

Section 5 — 201 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 5 — 201) contemplates highly qualified personnel to occupy the position of county superintendent of highways. Detailed requirements are set out in section 5 — 201 before a candidate can be appointed by the county board to the position. It follows, therefore, that a county superintendent of highways should be removed for only serious reasons.

In Hansen v. Donna Lane Motor Ship Corp. (W.D. Wash. 1924), 299 F. 977, the court held that neglect of duty implies continued neglect, not a single act of neglect. In People v. McCaughan (1957), 49 Cal. 2d 409, 317 P.2d 974, the California Supreme Court noted that neglect of duty has an accepted legal meaning which means an intentional or grossly negligent failure to exercise due diligence in the performance of a known duty. In Rapaport v. Civil Service Com. (1933), 134 Cal. App. 319, 25 P.2d 265, the court noted that where the removal of a public official is based upon neglect of duty it has often been held that the public official should not be removed from office unless he has refused or neglected to perform an official duty pertaining thereto in some substantial respect. In Holmes v. Osborn (1941), 57 Ariz. 522, 539, 115 P.2d 775, 783, the Arizona Supreme Court analyzed a statute which authorized the governor to remove members of an industrial commission for “inefficiency, neglect of duty, malfeasance, misfeasance and nonfeasance in office.” The court noted that nonfeasance and neglect of duty as being the same thing with nonfeasance being a substantial failure by an officer to perform his duty,

We hold that to constitute sufficient neglect of duty to justify removal, the neglect of duty must be a substantial failure to perform the official duties of the office. Applied to the case at bar, we conclude that under the circumstances of this case, an isolated incident of intoxication does not amount to neglect of duty sufficient to warrant removal. Other than general allegations of intoxication and unfitness, the written petition charging Johnson with neglect of duty fails to set forth any allegations that Johnson failed to perform any of his official duties. Therefore, the allegations of the petition are insufficient to justify Johnson’s removal. In our holding, it is not our intention to imply that repeated incidents such as this would not amount to neglect of duty. Nor do we hold that, under different circumstances, an isolated incident would not amount to neglect of duty if it could be shown that the conduct led to a substantial failure to perform some official duty. There is no indication in the record here that the complaint was anything but an isolated incident, and apparently the county board failed even to consider Johnson’s prior record. As there has been no showing of a substantial failure to perform official duties connected with the office, the county board’s order of removal is in error.

In view of our holding, we need only briefly touch upon the remaining issues which Johnson raises. He sets forth a detailed analysis of the day in question and debates at which points he was on or off duty. We decline to engage in such line drawing as to when Johnson was “on duty.” Whatever Johnson’s intent was to take the day off, it is apparent that Johnson performed some of the functions of his job during the day in question. As the position is more in the nature of a professional one, rather than punching a clock, we find no merit in his contention that much of the conduct in question occurred in off-duty hours. Likewise, we find no merit in Johnson’s contention that the Board’s findings are insufficient because the Board failed to vote on the ultimate issues of the case. The Board combined into one vote whether the allegations of the petition had been proved and whether Johnson should be removed from office. Johnson maintains that the Board failed to vote as to whether Johnson was guilty of neglect of duty and malfeasance in office. However, the entire petition was read to the Board in its entirety, and the meanings of neglect of duty and malfeasance in office were extensively discussed. The legal conclusion of neglect of duty and malfeasance in office is implicit in the Board’s finding.

In view of the foregoing, the order of the circuit court of Macon County, insofar as it finds that the Board’s finding malfeasance in office as a ground for discharge was against the manifest weight of the evidence, is affirmed; the order affirming the finding of neglect of duty and discharge of the plaintiff is reversed, and the cause is remanded to the circuit court of Macon County with directions to order the reinstatement of the plaintiff as county superintendent of highways of Macon County.

Affirmed in part, reversed in part and remanded with directions.

GREEN, P. J., and LONDRIGAN, J„ concur.