*1 teacher, my (now Lawyer), gym strongly supported more even Susan, view. of the occur did not Miss Van Ness injured girl, notify rence of using in class landing wrong on her She continued leg. support horse after the that Susans Miss was notified accident. Van Ness leg hurt the class, following gym but Susan continued participate day. There is no in the record that Miss Ness was aware showing Van the cause of Susan's she knew that on crutches after that or that being the child was in connection with the She was hospitalized accident. gym not contacted by the Schafers the school at the before the She left suit. end of the school the suit until year and knew (June, 1965), nothing March, 1969, and was served on The trial court could 1969. July have found that she reasonably was not aware of the or that a accident claim or liability involved or even that there was additional or omnibus insurance liability in existence All which covered her. policy of these facts serve as a cases, valid excuse for delayed notice under the since the knowledge of the school itself could not be to her as imputed an additional Scott insured. v. Inter-Insurance Exchange (1933), 572, 579; Haskell v. Siegmund (1960), 28 19. See also Cinq- Mars v. Travelers 467; Insurance Co. (R.I. A.2d 1966), 218 Cor Jarka poration v. American Fidelity Casualty Co. (S. App.Div. Crt. — 19 A.D.2d N.Y.S.2d aff’d 14 N.Y.2d 161; Navigazione Alta Italia v. Columbia Casualty (5th Cir. 1958), 256 F.2d 32 (dissent). Waukegan al., Petitioners, et v. The Environmental Pro al., et Respondents. tection 72-4;
(No. Second 2,May District *2 SEIDENFELD, J., dissenting. Snarski, and Conzelman, Conzelman, Schultz, & O’Meara of R.
Murray & of Fisher, both Sloan, Hall, May, Snook Holmberg, R. Meyer, of John Waukegan, for petitioners. General, Campbell, A. Scott, Chicago, of (Lee William Attorney J. General, for counsel,) respondents. Attorney Assistant the opinion delivered PRESIDING GUILD Mr. JUSTICE court: the Illinois Pollution the action and order of This is an from appeal $1,000 City Waukegan, against Board in a fine of assessing Control Inc., an Illinois T-K Disposal fine of each $250 and an additional Inc., Co., an Illinois Corporation. and Tewes Corporation, its annual spring conducted City Waukegan of 1971 the In June scavenger aforementioned disposal with the conjunction clean-up the En- a letter to it had from city applied permit The alleged firms. answer In that no Protection but received. Agency vironmental refuse, was de- not days, including garbage, of seven period June, then dirt. It was covered with the site provided city. on posited before then this action brought The Environmental with city Board charging operating Illinois Pollution creat- site without obtaining permit, open dumping, refuse disposal cover, hazard, offenses other failing provide a water daily ing thereto. incidental in this and raised by petitioners presented appeal,
The sole question Board, whether not an administrative before the hearing in the fines under the levy constitutionally has the authority 1971, Protection Act Illinois Environmental 1044). 1033(b), secs. the case outset, is familiar with decided recently this court At the Pro- Ford Third District Court entitled Appellate not We do N.E.2d 540. Agency tection agree that opinion. be decided if a case
We are
of the fact that
fully cognizant
involved,
the act
without determination of the
constitutionality
question.
the constitutional
it should be determined on a basis other than
is,
is constitutional.
course,
the legislation
presumption
v. Auditor
N.E.2d
(Gadlin
Public Accounts Railway
But as the court stated in Wabash R.R. Co. Order
234.)
at
Conductors
America
N.E.2d
Commission:
the review of orders of the Commerce
discussing
“* * *
review of an order of
purpose
commission is to
it within its
so as to
violate
keep
jurisdiction,
any rights
the constitution.”
guaranteed by
recent
Administrative
are creatures of the
agencies
rather
vintage. The
of administrative
as
emergence
agencies,
necessary adjunct
branch of our
government
increasingly complex
our
has not been without
to the limitation of the au
society,
as
problems
thority granted to them. As
we find one of the first cases
early
in this
Willis v.
entitled
In
regard
when offense.” Martin People ex rel. In Mallary Ill. 63 N.E. the Board of of the State Managers Reformatory transferred to prisoners the under the Act. Reformatory penitentiary of this constitutionality stated, challenged, Act was and as the court the directly question was or not an executive or whether administrative board had the authority legislation question under the to transfer said prisoners. The court held that the the Board attempt of to Managers designate the place of confinement was usurpation judicial power court. & C.C. St. L. Ry. Cleveland, People ex Barter In rel. 72 N.E. the held supreme court that a statute authorizing the tax assessor clerk to collect a county specific amount as a tax landowners for failure to clean from streams impediments more or less nothing than a inflicted only or fine which could be penalty by the judicial power after trial to law. The court said at according page 641: “* # * To the assessor hold otherwise would be to permit
levy a his without the deprive property offender * * due that the process say of law *. It is no answer there property owner tax in the court and object can county determined, that if have these for the reason questions judicially the assessor has the the and the county cleric taxes, has the to extend the there is left nothing the court the county but to overrule the as objection, question violation has been determined these officers.” previously Since the advent lessening we find agencies, administrative strict of our government. of the three branches powers administrative “quasi judicial” Certain delegated functions have been agencies. between line of demarcation problem encountered is the those in fact “quasi functions that are agencies administrative granted judicial” We do not believe that and those that are judicial. functions actual under judicial to administrative agencies can be guise or “ministerial.” being “quasi judicial” In Harrison
We turn then recent date. comparatively to cases of Civil Service Com. 1 Ill.2d
court stated: the Ad-
“It is readily that section apparent (par. 274) broad ministrative Review Act does such any not contemplate review, for it is in this provision specifically on that the findings agency conclusions of the and correct. questions of fact shall be held to true prima facie evidence, to make The court is not authorized nor weigh facts, its own determination as under independent statute involved the Schoeberlein case. On contrary, Re- authorized Administrative type review under the Act, view the court must whereby regard aside correct and is to set them prima permitted facie evidence, if contrary weight manifest they function, has been as a traditionally regarded comparable *4 the issue at law as to whether there evidence is competent of a lower judgment court. support [Citation.]” End the limitations of the the Considering judiciary, rationale of West 523, 525-526, & Loan v. Smith Ass’n Ill.2d N.E.2d Savings the courts have the and the if ad is that to determine duty orders evidence, have in ministrative con- but support the and de- determine invested with the courts cannot be versely the At page character. legislative of an executive or cide matters court stated: none of law that of constitutional
“It is a familiar principle powers prop- exercise our government three departments com- this Pursuant to to either of the other two. erly belonging has been authority held that where mandment we have repeatedly functions agencies perform conferred upon in courts of law nature, trial de novo for provisions an executive principle. violate the separation-of-powers [Citations.]” Cohen, Finance court, Department in supreme In 1938 of a penalty by the imposition considered 510, 17 N.E.2d Ill. that the Department had provided The body. ministerial under the Retailers’ assessment deficiency could compute Finance that the court, computation in holding The Tax Occupational Act. an exercise of judicial power was not deficiency Department substance, constitution, in that the agent, stated within the meaning act which re a ministerial deficiency, was performing in figuring from data upon calculation computation a mathematical quired merely result. As the court reach the same all minds must ordinarily stated: must detail the matters which great statute sets forth with
“The which, return, when down a guide into the go monthly lays followed, discretion.” 369 Ill. arbitrary leaves nothing open a fine or determination of discretionary that no judicial is thus obvious It in Cohen cited ruling in that case. was considered Finance Department court supreme approval by Gandolfi Gandolfi, In Department N.E.2d 737. tax due under the retailers’ occupation the amount computed Finance tax, as the as penalties. $258.75 defendant to be $1035 Cohen, ruling after the substance Gandolfi, stating In was delegated constitutional judicial power court held no supreme Finance, that the collection of the statutory but the Department mathematical calculation was merely and statutory penalty requiring tax the law and did not constitute administering duty incidental exercise of judicial power. 147,152,
However, Reid v. Smith awarding court held of Labor or the supreme Department for each laborer not re body $10 could day for under the wages law. prevailing wage ceiving prevailing further held that the court supreme statutory *5 the awarding or the body of Labor was invalid as an Department attempt to confer judicial power “* * * upon such bodies article 3 the con contrary to of
stitution. The fact that an the provided from appeal [Citations.] decision of the body or so de of Labor in awarding Department claring forfeiture, a does not one justify department of govern ment exercising powers belonging to another. (375 [Citations.]” at 152.) to be noted that in Reid no It is amount was discretionary authorized a flat a day $10 penalty. Pro has v. Environmental
It been Ford uniformly held as stated tection Agency 711, 717, that the to suspend, power revoke, and deal otherwise with licenses an ad delegated be to may above, ministrative officer or as stated if there is a agency, incidental thereto and the same is a matter of a amount merely specified calculation, simple the same be considered a act not quasi-judicial offensive to the of the three our Con powers government. of for the ceding moment the constitutional of the administrative above, as body, stated the reviewing court in considering the actions body an administrative must as consider factual of that body prima correct unless against weight the manifest of the evidence. facie However, in the that is not issue case before It is out pointed us. the limitations our upon to illustrate review actions merely words, In other this reviewing Pollution Control court is perform Board. in its the same function review actions an administra ing much a trial it is in review of actions of court. If we agency tive as an administrative to power impose discretionary concede Board, before that fine we have invested all of the upon transgressor a ministerial of a judicial upon body. only function possible power that is the fine body judicial court not collect the system then does the the scene. imposed appear upon our natural is a subject ecology preservation resources and emotional issue before the today. publicized public Perhaps much has thereof, a result from the decisions appeals Act that Pollution be to the directly appellate Board shall courts to time- expedite Control cases. hearing pollution wise the cited, nor is has been there with which any Illinois case we
No familiar, the current Third District other than Court Appellate opinion, an herein, holds that hear Ford, cited administrative body may fine evidence, guilt, impose determine for the viola- discretionary tion. asked us,
In the before the Environmental Protection case $1,000 was fine of $10,000 A City Waukegan. a fine of Board, taking not of the members of the Pollution imposed. One the fine doubled suggested “concurred” and hearing, part order an we consider cover It matters in the end whether the cost. it nor does money for the or criminal payment proceeding, civil the same. exactly matter if it a a fine. The result we call tire believe, Appellate We with due deference opinion Court, the Illinois Pollu District, that Third the granting $10,000 delegation tion fine is an unlawful Control Board to We further believe agency. *6 this nor is is solved such a nothing by procedure quasi-judicial; labeling all from which to a mere on data power fine mathematical calculation Board here imposed reasonable minds would reach the same result. The $1,000 fines of and been doubled as one might These amounts have $250. toup Board member have been other amount suggested, might any or they $10,000. a distinctly a limit fine is discretionary imposition cannot judicial act and one that exercised an administrative body. be Gradual erosion of the in of administra of the State favor power tive endangers bodies our There is no system government. question but that make hearings the Illinois Board hold Pollution Control may determinations; factual however, fine a discretionary imposition and the collection thereof must de necessarily be a matter termination court. in to Health Illinois (Ill.
Examination of the statutes Public pertaining 111½), twenty-four disclose no fewer than this health to violations of the various laws provisions relating public In not one years State from a minimum fine to five in ranging prison. instance, Act, single authority Control except under Environmental fines, ob granted to the to or body impose penalties not Con viously, imprisonment. The that the Environmental argument trol Act cannot be enforced to the Pollution Control except by granting fines, Board the when one impose specious considers appears that actions such are not public other acts important health.
Moreover, the Environ we find sections 1033(b), Act, less a clear investment of mental read than together, after that 1033(b) hearing such in the Board. Section provides consideration, and due the Board shall enter a final order which in the Board of penalties clude “the accord imposition by money Title this Act.” Sections 1042 and 1044 are found Title XII of XII of Act, 1042 that violating It is Section any person Act. regulations Board, order of the shall liable to a of not be $10,000 exceed in the “may which be recovered in civil action” brought name of Attorney of the State the State’s or the People Attorney General. As section 1044 without originally adopted, provided, this specifying “it shall be misdemeanor to violate Act any penalty, * * *” or regulations thereunder. effective January Public Act 1, 1973, Corrections, criminal conforming the Unified Code of penalties amended section 1044 to that it shall Class misdemeanor provide A Stat., violate Act or regulations 1972 Supp., thereunder. sec. 1005 — 9—1 provides $1,000 a maximum fine of for Class A misdemeanors.) If for no reason other than the or incon ambiguities sistencies we sections, believe arise from these we would feel compelled any to set aside fine imposed by Board.
We therefore reverse aside the set order the Pollution Control Board.
ABRAHAMSON, concurs. J.,
Mr. SEIDENFELD dissenting: JUSTICE I would uphold monetary the Board’s variable as in Ford v. penalties, Agency (3d N.E.2d do urge Petitioners as a separate ground for reversal Board’s were the manifest or that weight evidence the Board acted arbitrarily, its capriciously, otherwise abused discre tion in dealing with them.1 The sole issue raised whether section 33(b) *7 111½, Environmental Protection Act Stat. violates the par. separation-of-powers 1033(b)) provision Illinois constitution.
The Court Illinois has never held that Supreme specifically ability of an administrative to a agency assess variable monetary neces of sarily violates restriction. The court has held separation that the assessment of a wide of sanctions an variety by ex agency is rel. Rice v. Wilson Oil Co. 364 (People permissible. (1936), 406 of Department bond Finance Cohen (fixing penalty); Ill. v. of Ill. 510 (1938), Department 369 v. (deficiency assessment); Finance 1 Shortly disposal began after the activities refuse Agency petitioners they two notified were violation the Act and operations, they shortly directed them cease which did not do. Four months later complaint, city Waukegan requested permit after the filed a a for its already accomplished dumping.
197 Co. v. Mercantile Vissering 375 237 (1940), (tax penalty); Ill. Gandolfi v. Auditor Gadlin (adverse publicity); 1 108 Annunzio Ill.2d (1953), Club, Cermak license); Accounts 414 Ill. (denial Public 89 (1953), license).) v. 90 (revocation Inc. Com. Ill.2d Liquor (1963), Cincinnati, & St. Cleveland, Chicago The cited cases by petitioners, v. 638, and Reid Barter 212 Ill. Ry. People (1904), Louis Co. ex rel. as out by Smith distinguishable, pointed Ill. (1940), Ill. Third Ford Environmental Protection Agency (1973), District. 711, 715-716, 292 N.E.2d 542-543. App.3d is discretionary. that the fine on fact relies majority opinion consider, indicated language as this a factor may While Ad it not be should conclusive. majority, the cases referred to discretion, and de investigate, often exercise ministrators judgment meaning within the exercising judicial power decide liberate and without of powers. with dealing restriction constitutional Murphy (1943), & Inc. 384 Ill. Harding, 473.) (Toplis discretion be exercised arbitrarily that administrative danger in apportion amount of exists also fixing monetary penalty exists of commerce facilities (Chicago Ry. costs construction ing Junction 579) denying license v. Illinois Commerce Com. (1952), Gadlin v. Auditor Public Accounts currency exchange. Ill. 89. draw the line of discretion realistic to it not altogether Similarly, administrative agen while monetary allowing penalties short of variable monetary sanctions or fixed the freedom to impose non-monetary cies 265, 271-279; Gellhorn, Jaffe, 1970 Wash. U.L.Q. (See penalties. Judicial 112-114; Davis, K. Agencies pp. of Administrative It be wiser Law, 134-138.) may 2.13 pp. Administrative sec. fine to enable an administrative agency viewpoint from practical infraction and relevant criteria the seriousness of the other according sanction such as revocation all-or-nothing than be limited to rather Agency (3d v. Environmental Protection of a (Ford license. hand, On im the other 545.)
9 Ill.App.3d such as of a license suspension non-monetary penalty per position be determined tire administrative of time to for a period mit a less form of a flexible precise in effect to Even amounts fine. monetary administrative discretion as to how many a fixed monetary penalty, cumulate as frequently by days3 well prosecute, violations 111½, pars. 116.54, 116.90, 170, 2E.g., 1971, ch. 185.11. 155, 729, E.g., pars. Ill. Rev. Stat. *8 198 infracted,
the number of the ultimate amount regulations will determine the violator will penalty have pay.4 authority” takes the that “actual majority opinion position judicial being should not be under the guise administrative agencies However, labelled classification of of “quasi-judicial” “ministerial.” executive, ficial duties heads of legislative, under three exact, cannot very be and there are officials whose duties cannot many exclusively, least of these heads. properly, arranged be under either Joyce 124, v. 246 can (People (1910), 135.) Numerous instances Ill. cited where functions apparently nature when performed by an administrative or official do violate body provision of the v. George constitution. See Ill. People 167 (1897), also, and instances discussed See e.g., Department therein. & v. Public Works Lanter Buildings (1953), 413 Ill. do 581 (eminent main v. powers); Chicago Ry. Co. Com. Illinois Commerce Junction , 412 Ill. (1952) 579 & (apportionment costs); Inc. v. Toplis Harding, Murphy (1943), 384 (determination employment Ill. relation); Grand Trunk Western v.Ry. Industrial Com. (1920), (entitle Ill. ment workmen’s compensation). abuse, discrimination, possibilities of
Admittedly, and capriciousness exist when a penalizer has a choice about the severity of he will Both courts and impose. legislatures have been reluctant to authorize agencies administrative to impose However, variable monetary penalties. the dangers involved in and the necessity flexible conferring powers are at first considerations instance and to be primarily carefully weighed legislature before choosing to confer such authority. Courts are limited to whether determining authority conferred incidental to administering (Cermak Club, law Inc. v. Liquor 93; Com. 30 Ill.2d Gadlin v. Auditor Public Accounts , 89, 97), 414 Ill. (1953) whether the is in vested with arbitrary powers. Department Finance v. Cohen (1938), 514-515, 516-517; Rough Ill. Hoehler Ill. 420-421.
Thus
may confer that
measure
authority which is
practically
necessary to
reasonably
accomplish
legislative pur
&
pose. (Department
Works
Public
Buildings
Lanter (1953),
581, 587, 589-590;
132-133;
v. Barrett (1934),
Ford
Reif
v. Environmental Protection Agency
(3d
9 Ill.App.3d
718, 292 N.E.2d
A broader
543-544.)
delegation
discretionary
4 E.g.,
Utility
Super.
W. Dillner Trans.
Public
Com.
191 Pa.
J.
I conclude that Environmental 111½, does not confer par. seq.) Stat. et judicial powers of the consti meaning powers prohibition within tution. Protection Act was enacted to consistent provide
The Environmental by damage serious to our environ dangers posed state-wide response that adverse effects environment are borne upon and assure ment pars. cause who them. those 1014, 1020, 1023; O’Connor Rockford cannot be doubted that of the environment 360, 366.) protection It Ill.2d Article XI of urgent problem. pervading is both to take action with legislature mandates the effective to deal constitution the environment. The Record of the Sixth Proceedings threats to Convention discloses that framers of the Illinois Constitutional drafting state constitution article XI considered adopting present had reached crisis the threat to environment wanted proportions Assembly legis the General enact effective enforcement procdures the environment from designed pollution. lation Verbatim protect 3490-3491; IV, 3011-3012, 2993, 3000, Transcripts, pp. Vol. VI, Committee Vol. 693-720. Proposals, pp. 111% majority opinion chapter other points provisions
the Revised Statutes that deal demonstrate that health to public However, administrative assessment of not penalties necessary. laws, there no constitutional but the mandate for these other absence of a flexible those serves to instances penalty power perhaps underscore the necessity for such must conferring Moreover, have felt in Protection Act. enacting other 111% laws of deal with area chapter narrow generally (e.g., par. 73.1 et seq. (funeral directors and 128 et par. seq. (stray embalmers); animals); 185.1 par. seq. et labor (migrant camps)) uncomplicated rules of examination, conduct licensing, maintenance (e.g., registration, of premises).
Without the flexible penalty effective administration of the En power, vironmental might Protection Act become difficult if not impossible. (Ford v. Environmental (3d Ill.App.3d, *10 540, 292 N.E.2d cumbersome, inefficient, Courts are 545.) and expensive by comparison streamlined administrative to deal procedures designed specifically and flexibility with one Fines problem-area. imposed courts inconsistent, would inevitably whereas the Pollution Control Board with its expertise and centralized could more intelli jurisdiction and gently effectively achieve the See legislative O’Connor v. purpose. 52 (1972), 360, Ill.2d 366-368. of Rockford are on the Limits amount of the placed assessable. Rev. (Ill. 1971, 111½, 1042.) Stat. par. ch. Standards are in the Act that guide must Board determinations in enforcement proceedings, would include determinations to the amount of the fine imposed. 1971, 111½, (Ill. Rev. Stat. ch. pars. See Hill 1033(c), 1002(b), 1020. v. 34 Ill.2d A Relyea (1966), hearing 552.) procedural safeguards at which evidence of required violations must be presented. Rev. (Ill. 1971, 111½, Stat. ch. pars. Significantly, the and 1031-1033.) investigatory are prosecutorial functions carried out one agency Stat. (Ill. Rev. 111½, 1971, 1030, 1004, pars. ch. while function 1031), adjudicatory another. performed (Ill. 111½, 1005, ch. pars. 1031- See State Cooper, 1033. 1 Administrative Law (1965), pp. 26.) reasons, and must be findings, The Board’s opinion published Rev. 111½, Stat. Rockwell Lime v. Commerce Com. par. 1033(a); Co. 373 and the Board’s rules 322-323.), require own written (1970), conclusions, findings, and reasons for its on embodying decisions decision fact, law, or discretion all on the record. presented material issues The adherence of to its Reg. the Board own rules (PCB #331(a).) it to the amount of the fine require justify would apparently imposed
201 act.5 Finally, a discretionary this is since proceeding an enforcement followed, review pursuant are safeguards insure these 1971, ch. Stat. Ill. Rev. is available. Review Act Administrative 1041. par. Stat. Act (Ill. Administrative Review
Section 11 of law all cover questions review to extends par. 274) determine court reviewing and the record. presented by fact (Common are constitutional whether the Board’s actions and 800); 5 Ill.App.3d (1972), Co. Pollution Board wealth Edison Co. Utilities authority (Citizens statutory whether Board actions exceed 158; A. Staley E. 9 Ill.App.3d v. Illinois Control Board (1972), Pollution 1972), Dist. Agency (4th v. Environmental Manufacturing Co. Board has considered 892); 290 N.E.2d whether Ill.App.3d data, from the hearing appealed and adduced at testimony opinions, Control Board Dist. v. Sanitary in the record Shore Pollution (North have been 797); legislative whether the standards Ill.App.3d v. Environ construed properly applied imposing penalties (Ford 711, 292 N.E.2d Dist. 1973), Ill.App. mental Protection Agency (3d Utili 540); sufficiently whether the Board’s orders are certain (Citizens ties 158); Control Board Ill.App.3d Pollution whether the Board’s findings supported by determinations evidence. Seegren v. Environmental Protection Agency (2d Dist. 347; Control Board Ill.App.3d McIntyre N.E.2d v. Pollution 253; Wachta (3d 1972), 8 Pollution Control Board Ill.App.3d has it reviewing court before including record proceedings, and reasons which the violation was found and the penalty circumstances, In such it is due giving deference to possible,
fixed. discretion, Board whether the Board considered judge legis properly standards, lative in fixing did not consider bases impermissible *11 did arbitrarily not act or abuse penalty, capriciously, otherwise is its discretion Thus if the penalizing penalty imposed violator. unwarranted and excessive the court refuse clearly reviewing may consideration, it, to sanction or remand the determination for proper by of the is the record.” Ill. penalty affirm so much “justified apphcable Rev. Stat. ch. made par. 275(e) (f) (g), Stat. Court Rule Rev. 335(h)(2) (IU. review appellate Supreme choosing proceeding give to fine failed reasons for The Board in the instant remaining However, petitioners Waukegan $250 each. $1000 and the challenge deficiency. petitioners this do 110A, ch. Pollu Citizens Utilities v. Illinois par. 335(h)(2)); tion Control Board
Finally, while not raised felt petitioners, majority compelled additionally hold the statutory authority question fatally ambiguous. view, In my 111½, section ch. (Ill. dealing par. 1044) sanctions, is criminal meant to be construed clearly independent of the Board’s sanctions. civil Section Rev. 111½, Stat. ch. limits the Board must follow par. 1042) prescribes in fixing the civil action to collect the provides after its In cases assessment. of administrative review of the recovery resort to a penalty by civil action since the re separate unnecessary, court has the viewing enter execution upon which judgment it issue if affirms the Board’s Stat. determination. Ill. Rev. 110, par. 275(h).
The imposition of flexible monetary penalties by the Pollution Control Board can regarded as necessary power urgent legis to achieve an lative purpose standards, circumscribed pro sufficiently cedxxral safeguards, meaningful review. For these reasons I would not consider section 33(b)
Act (Ill. Stat. violative par. 1033(b)) separa tion provision I woxxld constitution. therefore affirm the Board’s order and enter for the amounts judgment specified therein.