The Illinois Supreme Court has made it clear that persons free on bail pending an appeal must surrender to authorities once the appeal of their sentence is denied or the case remanded. They are not entitled to an appointment to go to jail. The unanimous decision (Justice Joseph H. Goldenhersh did not participate) clarifies a situation that has allowed persons to remain free for years after an appellate court has confirmed their convictions.

The two men involved in these two cases had been waiting for the "customary notice" from the state's attorney of the time and place to report to serve their sentences after they lost their appeals from convictions in circuit court. They waited and waited, two years in one case and five in the other. Actually the appellate court had acted relatively promptly in both cases (a month in one, a year in the other), but neither the defendants nor their counsel were notified of where to report. The wait was so long that both sought relief via habeas corpus, claiming that their exemplary lives in the interim demonstrated rehabilitation and that the delayed execution of their sentences would be an unfair hardship.

The court said no. The appellate court had acted in a reasonable time, attorneys for both men were notified of that action, and the law is clear: The defendant is required to surrender when the judgment against him is affirmed (Illinois Code of Criminal Procedure, section 110-10(b)(5)).

As to the state's attorney's notifying a defendant of the time and place of surrender, there is no statutory requirement for this, even though it is frequently done.

The law will be followed from now on, according to Chief Justice William G. Clark, who wrote the opinion handed down April 16 in this case, Walker v. Hardiman (Docket Nos. 63202 and 63396, cons.):

"... [O]ur decision . . . will now make it clear that once the State moves to have the appellate court mandate spread of record in the circuit court, and the defendant is so notified, any delay in surrendering will be attributable to the defendant."

Not settled, however, is what happens when there is delay by the court and what constitutes an unreasonable delay.

More than $40 million in revenue was at stake for the city of Chicago; unwanted taxes applied on aviation fuel were the issue to the airlines operating out of O'Hare and Midway airports. The city won when the Illinois Supreme Court ruled that contracts between the city of Chicago and the airlines do not preclude collection from the airlines of the city's vehicle fuel tax and the use tax on aviation fuel.

The airlines claimed that the tax, which was enacted in 1986 via the Chicago Vehicle Fuel Tax Ordinance, unconstitutionally impairs the use agreements between the airlines and the city, which stem from 1985.

The court sided with the city without having to deal with the question of contract usurpation of the city's power to tax. Although the O'Hare agreement prohibits imposition by the city of "charges, fees or tolls" for the privilege of purchasing materials used by the airlines, it does not preclude the city "from imposing any tax . . . not inconsistent with the rights and privileges granted to the [airline signatories] hereunder." The Midway agreement is similar in language.

The airlines said that the tax constituted a "charge" exempted by the contracts, but the court held that the separate reference to "charges" and "taxes" was evidence of intention to distinguish the two, rather than to equate them. The court cited several taxes now paid by the airlines that could also be escaped under their interpretation and concluded that the tax does not unconstitutionally impair the contractual agreements.

Although the city had argued that a contractual exemption from taxes would be a surrender of the constitutional power to tax (Ill. Const. 1970, art. IX, sec. 1), the court said that its decision made consideration of this question unnecessary. Chief Justice William G. Clark wrote the opinion for the unanimous decision handed down April 16 in United Airlines, Inc. v. City of Chicago (Docket Nos. 64400, 64441 cons.). F. Mark Siebert