concurring in part and dissenting in part:
I concur in the reversal of the trial court’s order and remandment for a new sentence hearing. I dissent from the developed conclusion that a trial court exercising inherent powers in civil or criminal contempt may further call upon inherent or nonstatutory powers to impose probation as a sanction for the contempt found. Whatever weight is given in the majority opinion to the admittedly meager precedent cited is overwhelmed by the contrary rule in Illinois that there is no power to impose probation except upon the authority of a statute. See 15 Ill. L. & Prac. §818 (1968).
Here, the focus is upon imposing probation when a minor has been found in need of supervision. Implicit in the opinion is the further issue of whether probation may be ordered as a sanction in every incident where an individual has been held to be in contempt of court.
While the concept of probation has been substantially altered through legislative action, and under the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001—1—1 et seq.) has acquired the status of a sentence, historically probation was deemed to be a suspension of a sentence of fine or imprisonment.
Under the early decisions, a trial court lost jurisdiction of the cause if sentence was not promptly imposed. (People v. Cahill (1921), 300 Ill. 279, 133 N.E. 228;People v. Penn (1922),302 Ill. 488, 135 N.E. 92.) In Village of Park Forest v. Bragg (1967), 38 Ill. 2d 225, 230 N.E.2d 868, a magistrate imposed fines but ordered such fines suspended. The supreme court found no statutory authority to suspend fines and held that a trial court has no inherent power to indefinitely suspend sentence. (See People v. Barrett (1903), 202 Ill. 287, 67 N.E. 23.) Within such historical framework the court in Penn stated that the power to grant or impose probation does not belong to the courts except as it is granted in the probation act.
Accepting as a premise that the trial court has no inherent power to impose probation as an adjunct of its inherent powers in contempt, one finds here that it is not contended that probation was imposed by authority of any statute.
The Juvenile Court Act is framed to provide “for the protection, guidance, care, custody and guardianship of the persons of boys and girls who are delinquent, otherwise in need of supervision, neglected or dependent; to prescribe court procedure relating thereto; * * *.” Ill. Rev. Stat. 1979, ch. 37.
Section 5—2(1) (b) of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 705—2(1) (b)) provides the forms of disposition as to minors “found to be in need of supervision.” Section 5—3 provides for probation as to delinquent minors, but that disposition is not provided as to minors in need of supervision. We note that within the Juvenile Court Act the statute does not authorize incarceration as a condition of probation, and thus differs from the provisions of the Unified Code of Corrections in section 5—6—3 (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—3), yet the order of the trial court here imposed incarceration as a condition of probation which had not been authorized by statute. It is to be noted that in both the Juvenile Court Act, section 5—3 (Ill. Rev. Stat. 1979, ch. 37, par. 705—3), and the Unified Code of Corrections, section 5—6—3 (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—3), the terms and conditions of probation are legislatively determined and specified in detail. In imposing probation incident to exercising an “inherent power,” the trial court does not necessarily act within a legislative prescription or program.
In People v. Breen (1976), 62 Ill. 2d 323, 342 N.E.2d 31, the supreme court acting under its supervisory power and within the context of the Unified Code of Corrections reviewed an order of “supervision” with restitution. It appears that such order was without statutory authority but imposed under a prevailing local practice. The court stated that there is no merit in the contention that the judiciary possesses the inherent power to impose an obligation not provided by law. The court applied its Rule 61(c) (18) which, in pertinent part, provides:
“In imposing sentence, a judge should follow the law and should not compel persons brought before him to submit to some act or discipline without authority of law, whether or not he may think it would have a beneficial corrective influence.” (Ill. Rev. Stat. 1979, ch. 110A, par. 61(c)(18).)
See also People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205.
The opinion of in re Baker (1978), 71 Ill. 2d 480, 376 N.E.2d 1005, does not support the majority opinion. As indicated there, the order imposing probation was bottomed upon an adjudication of delinquency. The trial court undertook to adjudicate the minor delinquent as a sanction or judgment in the exercise of its inherent contempt power. The trial court’s adjudication of delinquency, however, was held to be contrary to the intent of the Juvenile Court Act and not a proper order or sanction upon a finding of contempt. The order here imposing probation is similarly contrary to the intention of the Juvenile Court Act as to minors in need of supervision and, similarly, is not a lawful sanction upon a finding of contempt.