dissenting:
I respectfully dissent from' the majority opinion. I think this case should be affirmed for multiple reasons. The defendants do not dispute the seriousness of the injuries, including brain damage, nor the amount of the verdict of $150,000. Insofar as Count II is concerned, relating to violations of the Illinois Structural Work Act, the majority concedes that: (1) the Structural Work Act applied to the facts in this case; (2) the area on which plaintiff stood and from which he fell was a platform within the purview of that Act; and (3) there is a violation of the Structural Work Act in defendants’ failure to barricade the area from which plaintiff fell. All of the elements necessary to affirm this judgment exist here. The majority holding has effectively departed from the established rule that if a judgment is sustainable on any count, alleged error affecting other counts, in this case Count III relating to the applicability of chapter 76 of the City of Chicago ordinances entitled “Safeguards During Construction”, is immaterial. Jordan v. Savage, 88 Ill.App.2d 251, 260.
The ratio decidendi of my colleagues’ reversal is as follows: Since the ordinance admittedly adopts the Structural Work Act, and also “expands” the provisions of the statute, the ordinance is therefore a nullity. However, the claim that the statute is a nullity was never asserted by defendants and was therefore waived. (Haymes v. Catholic Bishop of Chicago, 33 Ill.2d 425, 211 N.E.2d 690.) The objections made in the conference on instructions, after the parties had stipulated the project contracts were admissible, raised no contention that the ordinance was a nullity. The defendants’ objections went only to the applicability of the ordinance.
Although the term is not actually used, this decision results in an outright declaration of unconstitutionality. The majority conceded that presentation and preservation of a constitutional question was never proposed to the trial court; and no ruling essential to our authority to review, was ever made. (City of Chicago v. Birnbaum, 274 N.E.2d 22, 49 Ill.2d 250.) Hence, the declaration that the ordinance is a “nullity,” therefore unconstitutional, is improper and unauthorized, as a court of review cannot, sua sponte, undertake to declare statutes or ordinances unconstitutional.
Implied in the majority opinion is the suggestion that the ordinance may have been applicable, and plaintiff’s instruction No. 3 proper, if it had been tendered in a count sounding in negligence and not as a mandatory requirement akin to that of the State Statute.* The majority overlooks the fact that the negligence count had been dismissed by plaintiff before the trial commenced. The rationale buttressing the majority opinion is contained in the phrase that “a municipality cannot enact a law that is designed to overrule or conflict with a sovereign statute.” There is obviously, no quarrel with the correctness of that statement— a municipality cannot enact laws in conflict with a sovereign state. It is not true, however, that a municipality may not enact an ordinance designed to implement and put into effect the intent and/or purpose of a State law, for it is well settled that municipalities may exercise police power concurrently with the State, and that police regulations may differ from those of the State on the same subject, if not inconsistent therewith. 10 I.L.P. No. 1105, p. 22, City of Highland Park v. Curtis, 83 Ill.App.2d 218, 226 N.E.2d 870.
Jones v. City of Chicago, 348 Ill.App. 310, 108 N.E.2d 802, is another instance of a holding contrary to the majority opinion. In Jones, a city ordinance exceeded the “bounds” of a state statute without sacrificing its effect. Justice Burke, of the First Appellate District, approved an ordinance requirement for insurance on cabs which was double the amount required by State law in the following language:
“* * * An ordinance, because of local conditions, may impose more rigorous or definite regulations under a proper delegation of power in addition to those imposed by the State. Dean Milk Co. v. City of Chicago, 385 Ill. 565, 53 N.E.2d 6121, and City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill. 311, 92 N.E.2d 872. In our opinion the $50,000 and $100,000 public liability insurance requirement is not oppressive or unreasonable.”
It is abundantly clear that there exists concurrent jurisdiction over Chicago citizens in this and other fields, and the construction ordinance appearing in Chapter 76 of the Ordinances of the City of Chicago, in adopting the State statute and localizing it to meet conditions peculiar to the city, did not intend to conflict but rather was designed to implement and insure its enforcement.
To declare an ordinance null because of expanding or implementing provisions is to invalidate many city ordinances. There would exist an anomaly — that the State’s requirement of mandatory compliance could not be paralleled in City ordinances. Cities could not enact mandatory requirements in construction trades in parallel fields. The misunderstanding lies in the majority believing that municipalities can only use the scaffold ordinances as a negligence matter.
The effect of all this is to declare unconstitutional all ordinances which remotely touch on the same subject matter under the guise that cities have been “pre-empted” by State statute. The well-known doctrine that ordinances and statutes may be read together, harmonized and concurrently put into effect would be shelved by the instant opinion. In short, all municipalities would abdicate their responsibility to their own citizens —all of this being contrary to common sense and judicial consistency. (See also, Town of Cicero v. Weilander, 183 N.E.2d 40, 35 Ill.App.2d 456.) My colleagues, however, fail to distinguish between an ordinance which tends to enforce a statute (which a simple comparison of the two proves is the fact here) and another which may be totally antithetical to it.
A specific example of an implementing ordinance appears in Treadway v. City of Rockford, 24 Ill.2d 488, 182 N.E.2d 219. Under State law (Ill. Rev. Stat., 1959, ch. 24, par. 73 — 8) zoning ordinances may be amended, but only after notice in a newspaper of a hearing before some commission or committee. The Rockford zoning ordinance expanded the ambit of the zoning board by dispensing with newspaper notices and permitting property owners to initiate, by petition, proposed changes in ordinances. In approving the additional or “expanded” requirements of the zoning ordinance, our supreme court said:
“® * * It is obvious that when a statute prescribes certain steps as conditions to the enactment of an ordinance these steps must be substantially complied with, and we have further held that where a general zoning ordinance includes additional procedural requirements for its amendment, not inconsistent with those of the statute, these requirements must also be complied with. (Cain v. Lyddon, 343 Ill. 217, 175 N.E. 391.)”
In Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495, the Illinois Supreme Court approved two local ordinances of the City of Chicago although there were numerous variations as to chemical and paint factories licensing encompassed by the ordinances and not contained in chapter 11.2 of the statutes. The supreme court said in Kizer v. City of Mattoon, 332 Ill. 545, 164 N.E. 20, 22:
“While municipal ordinances must be in harmony with the general laws of the state, and in case of a conflict the ordinance must give way, the mere fact that the state has legislated upon a subject does not necessarily deprive a city of power to deal with the subject by ordinance. Police regulations enacted by a city under a general grant of power may differ from those of the state upon the same subject, provided they are not inconsistent therewith.”
This departs from holdings in another division of this appellate district, for a division of this court has recently held that the very ordinance involved here creates a mandatory and separate cause of action consistent with, although parallel to, the Structural Work Act of the State of Illinois. The court also held the violation of the instant ordinance was unrelated to negligence in Kaspar v. Clinton Jackson, 118 Ill.App.2d 364, 254 N.E. 2d 826. There, three separate counts were contained in plaintiff’s second amended complaint (Count I — violation of the Structural Work Act; Count II — violation of the Safeguards During Construction Ordinance; and Count III — negligence). As in the instant case, the contracts contained broad language. Again, as in this case, plaintiff, an employee of a sub-contractor, was injured as a result of a fall and because of the failure to provide barricades. Although the opinion primarily concerned third party issues, both the trial and appellate courts distinguished and approved the negligence action as being separate from both the “Structural Work Act” and “Safeguards During Construction” ordinance. Had the Kaspar court felt that the ordinance exceeded the bounds of the statute and/or could only be pursued as a negligence action, the opinion would have so indicated. It did not. (Petition for leave to appeal was denied by the Illinois Supreme Court.)
It is said in the instant case, in justification, that there is a conflict between the statute which affixes liability to those “in charge,” and the ordinance which applies to everyone ‘having control or supervision.” But this would not be a proper basis for declaring the ordinance a “nullity”. That argument was rejected by our supreme court in Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 321, 211 N.E.2d 247, in the following language:
“While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge’, they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” (Emphasis added.)
It was not only proper but mandatory for the trial court to permit plaintiff’s pursuit of the local remedy on a par with the State statute: (1) To avoid confusion in interpreting the identical act; and (2) To give local validity to the sovereign statute. Plaintiff’s instruction No. 3, therefore, was the City’s personification of the Structural Work Act, even if the ordinance provided that the American Standard Association rules should be considered as accepted engineering practice. In this regard, no objection was made by either defendant, and, certainly, no state rule or provision of the statute was emasculated; on the contrary, those affected by the ordinance were well advised of the accepted requirements in their industry, and since negligence was not involved in Count III, the instruction appropriately omitted reference to negligence, contributory negligence and the like.
The majority has improperly considered the evidentiary rationale in permitting the introduction and reading of evidence relating to the various standards or safety regulations. As appears from the record, all these documents and statutes were obligatory requirements included and incorporated in the contracts. The contracts were admitted into evidence by stipulation and the portions read to the jury were by agreement of the parties, excepting those relating to indemnity agreements. My colleagues make it appear as though case law were read to the jury, when such is not the fact. There were no quotes from cases, but allusions were only to the Structural Work Act requirements, local ordinances and standards contained in the contracts and determinative of violations of those laws (reflecting upon the method of avoiding injury during construction) — all without objection. This appears in the transcript of proceedings, wherein the plaintiff’s attorney was examining a witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat., ch. 110.)
“Q. Under the provisions of the contract that O’Neil received from the City of Chicago, there were certain conditions. Do you remember them?
A. Well, I don’t know exactly what you are referring to, no.
Q. I am talking about the conditions — where is that? — that I think are called general conditions, special conditions.
A. Yes, that’s correct.
Q. This is Plaintiff’s Exhibit 2, a copy of the contract conditions that O’Neil agreed with the City of Chicago about (indicating).
A. Yes, that is part of our contract.
Q. And I take it you are familiar with these conditions.
A. Yes, sir.
Q. What is your function as the person in charge, to see that the conditions or requirements are complied with?
A. Yes.
Q. Now is one of these conditions with which you are familiar as follows on page D-4, Section 2.1? That reads as follows:
‘The contractor shall at all times observe and comply with all federal and state laws, local laws, ordinances and regulations which in any manner affect the conduct of the work, and all such orders and decrees as exist at the present and which may be enacted later, of legislative bodies tribunals having legal jurisdiction or authority over the work, and no plea of misunderstanding or ignorance thereof will be considered.’
# # £
MR. VALENTINE: If the Court please, I believe we stipulate that Mr. Heuer has a general familiarity with this entire contract and the portions that Mr. Phillips is referring to.
I think we have already agreed that we have stipulated to this, that the pertinent portions of the contract would be admitted into evidence and the immaterial portions would not be.
# 0
MR. PHILLIPS: Well, it’s in evidence now and I certainly would have a right to read it anyhow.
THE COURT: Let him look at it. We agreed that only the pertinent parts would go in.
MR. VALENTINE: No objection to that.
MR. PHILLIPS: AH right.
‘The safety provisions of applicable laws, budding and construction codes, shall be observed. Machinery, equipment, and all hazards shall be guarded or eliminated in accordance with safety provisions of the Manual of Accident Prevention in Construction published by the Associated General Contractors of America, to the extent that such provisions are not in contravention of applicable law.’
You are acquainted with that?
A. Yes, sir.
Q. And this is the book, I believe, that is alluded to (indicating). Is it not this manual?
A. That’s correct.
Q. And as general contractor, I think O’NeH belonged to this organization. Did it not?
A. That’s correct.
Q. Is one of those provisions relating to barricades? Are you familiar with that?
A. Yes, there would be a section on barricades.
0 0 0
Q. Going to page E-l of the general conditions, were you acquainted with this provision (indicating)?
THE COURT: Give him a chance to see that.
MR. PHILLIPS: 201, at the top.
0 0 0
MR. PHILLIPS: The very first paragraph.
0 0 0
MR. VALENTINE: No objection to that.
MR. PHILLIPS: A11 right. This is entitled ‘201-Plant Procedure, Methods, and Equipment.’ It reads as foHows:
‘The contractor shall determine the method to be employed, and the procedure to be foHowed, the equipment, plant false-work, shoring, bracing other temporary structures and equipment to be used on the work under this contract, subject to the requirements of the contract documents and the approval of the engineer. Only adequate and safe procedure, methods, structures, and equipment shall be used.’
Q. Do you recall that section?
A. Yes, sir.
Q. Was adequate fighting one of the safe procedures?
A. Yes.
Q. And was the use of a barricade in a hole that was unguarded also required under the safe procedure understanding that you as a general contractor had?
* # #
A. Yes.”
The general rule, in this regard, is that if otherwise admissible, no error is committed by the introduction of these provisions, especially since O’Neil’s own witness conceded during his adverse examination he was familiar with these standards and knew that his employer was required to comply with the very provisions that would have prevented the plaintiff’s fall into a lower level.
Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769, involved a collapse of a hoist during construction wherein nineteen workmen were seriously injured. The trial judge in Nelson was the trial judge in the instant case. He was affirmed in Nelson and should be affirmed here for the identical reasons. In approving the propriety of reading the ordinances of the City of Jacksonville, Florida, the Illinois Supreme Court said:
“Prior to the occurrence here the city of Jacksonville, Florida, passed an ordinance which adopted b,y reference a building code known as the ‘National Building Code,’ and also an ordinance adopting by reference the ‘American Standard Safety Code for Elevators, Dumbwaiters and Escalators’ compiled by the American Standards Association. These ordinances were introduced in evidence by plaintiffs, and counsel for plaintiffs and the co-defendants Union Wire and Archer Iron were permitted to read portions thereof to the jury, over repeated objections by defendant American Mutual, first, that neither code applied to construction hoists, and second that the ordinances were invalid and did not come into effect because a State statute had pre-empted the field of elevator regulation. That ruling on this evidence is complained of, the defendant raising the same contentions on appeal. The first point, however, was not raised in defendant’s written motion for a new trial so as to preserve it for review and will not be considered. Where a party files a motion in writing for a new trial, specifying therein the grounds or reasons for such motion, he will be restricted, in a court of review, to the grounds or reasons specified in such written motion and will be deemed to have waived all other grounds or reasons for a new trial. (County Board of School Trustees v. Batclwlder, 7 Ill.2d 178, 183-184; Lukich v. Angeli, 31 Ill.App.2d 20, 28.) As the matter comes to us, the ruling of the trial court that the ordinances had application to construction hoists cannot be questioned.” 31 Ill.2d 69, 113-114.
The majority holds that impeachment of the plaintiff should have been permitted. The material evidence in question, as related to the Structural Work Act issue, would not permit inquiry on the subject matter claimed to be reversible error for the initial reason that it concerned, if at all, alleged contributory negligence of the plaintiff. Whether plaintiff bent over or scraped his feet after his flashlight fell or touched the ladder prior to falling in the lower level is totally irrelevant. This inquiry was not. material because contributory negligence was not a defense, as the negligence count was not before the jury. In Able v. Pure Oil Co., 8 Ill.App.3d 558, 290 N.E.2d 335, the court said:
“Where the action charges a knowing violation of the Structural Work Act the plaintiff is not required to prove his own due care and plaintiff’s contributory negligence may not be urged as a defense. (Rovekamp v. Central Construction Co., 45 Ill.App.2d 441, 195 N.E.2d 756.)”
Factually, my colleagues concede that, by the overwhelming evidence, it is undisputed that the plaintiff was injured by the failure to have erected'barricades (barricades are required in both the statute and the ordinance). It is also undisputed that plaintiff’s fellow workmen found his flashlight and other equipment in the hole the following day. O’Neil’s foreman also admitted that a ladder was found in the hole after plaintiff’s injury, and that he had used it himself just days before. Everyone who testified agreed, and the photographs introduced in evidence showed, that there was no barricade at the site where plaintiff fell. Therefore, even if plaintiff had not testified at all, or irrespective of the existence of a ladder, or whether he touched the ladder at any time before he fell, the evidence affords no conclusion other than that plaintiff was injured in the fall in the shaft.
There are other reasons why the impeachment was improper even if the plaintiff’s claim were based on negligence, which it was not. The statements were inadmissible because (1) they were not materially impeaching; and (2) the plaintiff had admitted that the deposition version was erroneous.
O’Neil has imposed on this court by making it appear that there is substantial discrepancy between the court testimony and plaintiff’s statements in the deposition. The testimony militates against O’Neil. The plaintiff testified in court that he encountered a ladder after taking three or four steps. The deposition question varied in time from the court testimony and concerned what happened to the plaintiff during the three or four steps and not after — the two did not parallel or cover the same time interval. The record bears this out:
“Q. And then what did you do?
A. I bent over and was feeling, you know, with my hand and scraping your feet along, feeling for the light, because, you know, the sound in the whole room travels and it sounded like it was just ahead of me, and I kept walking and bent over and feeling and I fell. That’s all I remember.”
Before one may be impeached, it must appear that the testimony on the stand is materially different than that given previously, thereby going to the credibility of the witness. Defendants seek to obtain an advantage by reading from a deposition after plaintiff had conceded on direct examination that he may have been mistaken in the deposition. He further testified that since giving his deposition, he refreshed his memory from the hospital records, which showed he told the admitting intern he had fallen over a ladder. During his direct testimony, the following transpired:
“Q. Now, you gave a deposition some time ago back in 1965, didn’t you?
A. Yes, sir.
Q. Did you have a clear memory about everything that happened to you the day of this incident, all the time?
A. No, sir.
Q. Is there something that you’ve seen that brought back some of these things?
A. Yes.
Q. What did you see?
A. I seen a hospital report.
Q. What did that bring back?
# # #
A. I’ve seen some hospital reports, some pictures.
MR. PHILLIPS: Q. What did that bring back to your memory when you saw these hospital reports?
A. What I told the doctor that was exam — that examined me when I was taken to the hospital.
Q. When did you see those records?
A. Couple of weeks ago.
Q. What did you then remember as to what had happened in detail?
# # #
Q. What did you then remember after looking at these records?
A. About how I — how I fell in the — in the maze.
Q. Okay. How did you fall in the maze?
A. I was searching — feeling with my feet and bent over with my hands trying to find my flashlight, and I tripped and losing my — trying to regain my balance, I felt the edge of a ladder and rungs, and it slid along a little bit with me. And I remember falling into space. And that’s all that I remember until I come out of the hole.
Q. Well, do you know how long you were down in this hole?
A. No, sir.”
The court held a conference at defendants’ request, outside the presence of the jury, and the record discloses the following:
“THE COURT: Well, I heard the testimony this morning and the man said he had refreshed his recollection since giving the deposition and that from reading the doctor’s record from the hospital he remembered then what he had told them about tripping over the ladder.
I think that was all fully covered by the direct testimony and this, therefore, would not be impeachment. He said he didn’t remember that, but he does now. I heard this outside the presence of the jury and I so ruled a few moments ago.
This offer, of course, is now in, but I still don’t think it’s impeachment, under the circumstances.”
A basic rule of impeachment prohibits allusion to a statement which may differ from testimony in open court where a party admits that his opinion has been altered by some circumstance. At that juncture, no further inquiry can be made. Logue v. Williams, 250 N.E.2d 159, 163 111 Ill.App.2d 327.
This rule is not varied because plaintiff’s counsel elicited this information during plaintiff’s direct testimony. On the contrary, an attorney is to be commended for initiating a correction of testimony without having to be prompted by the court or opposing counsel. There was no error in sustaining plaintiff’s objection to defendants’ attempted quote from the deposition to show that the plaintiff had, at another time, a confused or varied opinion of the exact minute of his fall.
The majority justified the attempted impeachment because, it is contended, the presence of this ladder was a “central and most important aspect of plaintiff’s case.” However, that is totally inconsistent with the majority’s initial concession that defendants are liable (whether there was or was not a ladder protruding) because of the violation of section 66.of the Illinois Structural Work Act in leaving an unprotected, unbarricaded and unguarded hole.
Therefore, although the ladder may be “another” device mentioned in the Structural Work Act whether plaintiff struck a ladder before he fell would be no basis for reversal, since O’Neil had already violated the act by failing to provide barricades. The additional violation would only be cumulative; it would not constitute reversible error.
In the last analysis, the admission or exclusion of a statement alleged to be inconsistent is generally within the discretion of the trial judge. Unless there is a clear abuse of discretion, such exclusion constitutes no basis for error. (Nowicki v. Union Starch and Refining Co., 1 Ill.App.3d 92, 272 N.E.2d 674; Closterides v. Dalton, 49 Ill.App.2d 286, 200 N.E.2d 29.) The Mal judge had many years of experience trying these cases and was well versed in the law of evidence. He was correct in his ruling.
I have carefully examined the arguments of counsel and it is clear that all attorneys zealously protected the interests of. their respective clients, but I see nothing that is not encompassed in Enloe v. Kirkwood, 120 Ill.App.2d 117, 256 N.E.2d 459. The character and scope of argument to the jury is left largely to the trial court, and every reasonable presumption must be indulged that the Mai court has performed its duty and properly exercised the discretion vested in it. Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249.
In my opinion, the judgment of the Circuit Court of Cook County should be affirmed.
ADDENDUM TO DISSENT (filed May 15, 1973):
Since filing my dissenting opinion, I have received a special concurring opinion from Mr. Justice Egan. Before writing my dissent I was given to understand that Mr. Justice Egan concurred with Mr. Justice Goldberg in his opinion, thereby constituting the majority opinion. I think Mr. Justice Egan’s special concurring opinion at this late date is highly improper, constitutes an attempt to reply or argue against the dissent, and also takes issue with the opinion of Mr. Justice Goldberg on a very vital issue — namely, whether or not this case is within the Structural Work Act. I deem it necessary to clarify this issue in order to have a majority opinion, and I concur with Mr. Justice Goldberg that this case is within the Structural Work Act and was properly Med as such.
The next vital question is what constitutes a majority opinion, and as I see it, we now have three separate opinions. Mr. Justice Goldberg is for reversing and remanding for a new trial; Mr. Justice Egan is for reversing outright; and I am for affirming. I think the only sensible solution to obtaining a majority ruling is for me to say, inasmuch as two justices are for reversal, that if this case is to be reversed I would have to vote for remandment in order to break the tie.
Furthermore, I do not want to be forced into a position of having to file a separate dissent to Mr. Justice Egan’s special concurring opinion, even though I completely disagree with what he says. I think he is in error and has misconstrued the facts and the law.
ADDENDUM TO SPECIALLY CONCURRING OPINION (filed May 16, 1973):
In view of the tenor of the addendum to his dissent filed by Mr. Justice Adesko and since it may create the erroneous impression that he was not aware of my complete views or that he had never seen my opinion before the filing, I regretfully conclude that I have no other choice but to answer it.
First, it is not unheard of that a concurring opinion may express disagreement with a dissent. See, for example, the concurring opinion of Mr. Justice Harlan in Dutton v. Evans, 400 U.S. 74, at 94-95.
Second, Mr. Justice Adesko received my opinion over a month before filing. He conferred with Mr. Justice Goldberg concerning it but not with me. Neither he nor anyone else conveyed his feelings to me that my opinion was “highly improper.” Mr. Justice Goldberg had previously seen my opinion and did confer with me. I invited any observations and criticisms he cared to make.
Third, at the conference following the oral argument each of us took precisely the same position that is reflected in the written opinion. It was apparent then, and it is now, that, since Mr. Justice Goldberg’s views on the two separate aspects of the case had one other judge agreeing to each of them, his was the majority view. If Mr. Justice Adesko had any doubts concerning my views after the conference, they certainly should have been dispelled when he received my opinion well over a month before filing and discussed it with Mr. Justice Goldberg. I am at a loss, therefore, to understand how he was “given to understand” that I was in complete agreement with the opinion of Mr. Justice Goldberg.
Mr. JUSTICE GOLDBERG CONCURS WITH ADDENDUM.
A mandatory requirement has been recognized in the recent case of Lincoln Park Realty, Inc. v. Chicago Commission on Human Relations, 9 Ill.App.3d 186, 189, 292 N.E.2d 116, where it was said: “Whether statutory language is directory or mandatory is ultimately a question of legislative intent to be ascertained from the nature and objective of the provision, (Carr v. Board of Education, 14 Ill.2d 40, 150 N.E.2d 583; Zbiden v. Bond County Community Unit School Dist. No. 2, 2 Ill. 2d 232, 117 N.E.2d 765.) Nevertheless it has been ordinarily held that negative, prohibitory, or exclusive words are generally construed as mandatory when employed in statutory provisions.’ (82 C.J.S. 875.) Our Supreme Court has also recognized that principle.”