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People v. Kueper

JUNE 9, 1969.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JOHN KUEPER, APPELLANT.



Appeal from the Circuit Court of Alexander County, First Judicial Circuit; the Hon. GEORGE OROS, Judge, presiding. Judgment affirmed.

EBERSPACHER, J.

Defendant's employer applied to, and received from, the Division of Highways, a permit to transport over certain Illinois highways an overweight vehicle of a total weight of 88,000 pounds with a weight of not to exceed 48,000 pounds on the rear axle. The limitation on axle loads is provided by the Uniform Act Regulating Traffic, (c 95 1/2, §§ 98 through 239 Ill Rev Stats 1965), and by the provision of section 131 of the Act, the maximum weight on the rear axle was limited to 32,000 pounds. The permit was issued pursuant to the authority given the Department of Public Works and Buildings, of which the Division of Highways is a division, by section 133 of the Act.

On April 25, 1967, defendant was charged with operating the truck of his employer in violation of the permit, contrary to the penalty provision of section 133(g) to which charge he pled guilty and the minimum fine of $10 was imposed upon him. He was also charged with operating the truck overweight in violation of the 32,000 pound rear tandem axle limitation imposed by section 131; on this charge he was tried before the court, found guilty and fined pursuant to section 132.01 of the Act in the amount of $2,308 on the basis of the rear tandem axle load being 23,080 pounds in excess of the 32,000 limitation, on the theory that the rear tandem axle load of 55,080 pounds exceeded the 48,000 pounds permitted by the permit, and that by the terms of the permit, as well as the regulations, noncompliance with the weight limitation of the permit, rendered all provisions of the permit null and void, with the same result as if no permit had been issued. *fn1 On the face of the permit it is stated, "VOID IF LIMITATIONS STATED HEREIN ARE EXCEEDED," and Permit Regulations for Oversize and Overweight Movements, dated July 1, 1962 provided, in section 3-501(7):

"Non-Compliance with weight limitations, dimensions, routing, or other provisions specifically stated in a permit will render all provisions of the permit NULL AND VOID. The effect will be the same as though no permit had been issued and the general provisions of the Uniform Act Regulating Traffic on Highways governs. A permit issued on the basis of incorrect or false information stated upon an application will also render the permit void."

Paragraph 10 of the General Provisions, contained in the Permit Regulations for Oversize and Overweight Movements (page 102) provides:

"This permit shall be void in the event the dimensions or weights of the vehicle and load, as operated, exceeds the dimensions or weight limits allowed by the permit. Provisions of the Uniform Act Regulating Traffic on Highways shall then apply."

Defendant filed his appeal from the judgment imposing the $2,308 fine in the Supreme Court on the theory that a rule or regulation of the Department, making an overweight permit void ab initio upon its violation, cannot be sustained constitutionally. That Court found that it had no jurisdiction on direct appeal, that no substantial constitutional question was involved, and transferred the appeal to this Court. Defendant prays that the fine be corrected by reduction to $708, being 10 cents per pound on the excess over 48,000 pounds, the permit limitation.

One of the legal questions presented is whether, the defendant having paid the fine for violation of the permit assessed under section 133(g) of the Act, can be prosecuted for violation of the weight limitations as set forth in section 131 and the penalty prescribed by section 132.01 for violation of section 131, imposed upon him. If the 133(g) prosecution bars the prosecution under section 131, we would reverse outright the judgment imposing the $2,308 fine, *fn2 and would need not consider, the other legal question presented, i.e., whether the Department had the authority to promulgate and enforce the permit regulation (section 3-501(7)) hereinabove set forth and hereafter referred to as Rule 7.

With regard to the first question, defendant suggests that since section 133 of the Act makes provision for the violation of a permit issued pursuant to that section, and that such provisions are exclusive, and that there is no authority for the imposition of any other penalty, and therefore prosecution under section 131 is barred. The Act in two entirely different sections, provides penalties for violation of two distinct acts, one (section 132.01) violation of the weight limitations upon vehicles operating over the highways, and the other (section 133(g)) violation of a permit for overweight. The last paragraph of section 133 provides that "Penalties for violation of this section shall be in addition to any penalties imposed for violation of other sections of this Act." Obviously by enactment of that paragraph, the Legislature did not intend prosecution under section 133 to bar prosecution under section 132.01, and we so hold.

Defendant contends that the rule making power of the Department is not sufficiently broad as to authorize it to adopt a rule which in effect states that if an overweight permit is violated it is void ab initio. He further contends that even if it is determined that the Legislature intended to grant the Department the power to provide for the avoidance of the permit ab initio upon violation, then such attempted delegation would fail because adequate standards have not been set down in the Statute to guide the Department in the exercise of discretion.

The rule making power of the Department relating to overweight permits is found in section 133(c) of the Act. It provides:

"The Department or local authority is authorized to issue or withhold such permit at its discretion; or, if such permit is issued at its discretion to prescribe the route or routes to be traveled, to limit the number of trips, to establish seasonal or other time limitations within which the vehicles described may be operated on the highways indicated, or otherwise to limit or prescribe conditions of operation of such vehicle or vehicles, when necessary to assure against undue damage to the road foundations, surfaces, or structures, and may require such undertaking or other security as may be deemed necessary to compensate for any injury to any roadway or road structure." (Emphasis supplied.)

The applicable general rule is found stated in Illinois Law and Practice with citations to the supporting cases:

"Under the authority vested in them by the General Assembly, administrative agencies have the power to make or adopt rules or regulations as to matters coming within their province in order to carry out the duties imposed on them by law. However, the rules or regulations promulgated by an administrative agency must be in accordance with the statutory authority vested in such agency, and ...


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