Appellant-plaintiff Eucy OBannon appeals the trial courts grant of summary judgment in favor of appellee-defendant City of Anderson and its police department (the City). Specifically, OBannon argues that the grant of summary judgment was error because the City was not entitled to sovereign immunity pursuant to Ind. Code § 34-13-3-3(7).
The facts most favorable to the non-movant reveal that OBannon lived at 2226 Halford Street in Anderson, Indiana on October 6, 1995. On that night, Anderson police officers were chasing an armed felon, Trevor Nunn, who had attempted to kill a police officer. Nunn had also fired upon the officers who assembled in front of OBannons home, to which he had retreated without OBannons permission. The Anderson police officers fired shots into OBannons home, searched her home, and seized her momentarily in the course of arresting Nunn.
On June 25, 1997, OBannon filed a complaint against the City based upon this incident and alleging negligent infliction of emotional distress, trespass, and illegal search and seizure. The City filed its answer and, on November 23, 1998, filed affidavits and a motion for summary judgment. OBannon filed her response to the motion on December 22, 1998 and a brief in support of response to defendants motion for summary judgment. After hearing argument on the motion for summary judgment, the trial court granted the Citys motion by entry on June 10, 1999. OBannon now appeals.
OBannon argues that the City was not entitled to sovereign immunity under I.C. § 34-13-3-3(7), that there was a genuine question of fact regarding the Citys common law duty to her, and that summary judgment should be reversed for that reason. Specifically, she argues that the City and its police officers had a private duty to her not to trespass on her property, not to search her home or seize her person and not to negligently inflict emotional distress. Appellants brief at 4.
We note initially our standard of review for a grant of summary judgment. Summary judgment should be granted only if the designated evidentiary material shows that there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Askren Hub States Pest Control v. Zurich Ins., 721 N.E.2d 270, 274 (Ind. Ct. App. 1999). Upon review, we do not search the entire record for evidence to support the judgment, but may only consider the evidence which has been specifically designated to the trial court. North Shore Bay, Inc. v. Hamilton, 657 N.E.2d 420, 422 (Ind. Ct. App. 1995). On appeal from a grant of summary judgment, the appellant has the burden of proving that the trial court erred in determining that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311 (Ind. Ct. App. 1999).
The Indiana Tort Claims Act renders immune from liability police officers acting in the course of their employment and their governmental employers if a loss results from the adoption or enforcement of or failure to adopt or enforce a law . . ., unless the act of enforcement constitutes false arrest or false imprisonment. I.C. § 34-13-3-3(7). Our supreme court has interpreted this statute to mean that law enforcement immunity would not attach in suits which were based upon a governmental units private duty to individuals, to which OBannon refers. For example, our supreme court held that immunity would not attach in suits based upon negligent driving of a squad car on the way to the scene of a crime, Quackenbush v. Lackey, 622 N.E.2d 1284, 1290-91 (Ind. 1993); for negligent parking of a police vehicle, Belding v. Town of New Whiteland, 622 N.E.2d 1291, 1293 (Ind. 1993); or the use of excessive force in effecting an arrest, Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993).
However, most recently, our supreme court has noted that the private and public duty distinction has led to confusion in Indiana case law. Benton v. City of Oakland City, 721 N.E.2d 224, 226 (Ind. 1999). It called into question the cases which relied upon such reasoning and which are the basis of OBannons claim. It substituted in the place of private/public duty analysis the common law presumption that a governmental unit is bound by the same duty of care as a non-governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions that it should be treated as one as well. See footnote Id. at 230. In addition, the supreme court noted that it is only after a determination is made that a governmental defendant is not immune under the [Indiana Tort Claims Act] that a court undertakes the analysis of whether a common law duty exists under the circumstances. Id. at 232.
In this case, OBannons analysis fails to explain why the Citys actions should not come under the immunity statute, I.C. § 34-13-3-3(7). The officers were clearly seeking to enforce a law, and the act of enforcement did not involve false arrest or false imprisonment. However, OBannon appears to argue that the officers presence in her house was illegal or that excessive force was used in effecting the arrest, thus endangering her and her grandchildren, humiliating her, and causing her a loss of quality of life. We will analyze her claims as one stating that the arresting officers actions were in some way illegal, and for this reason sovereign immunity should not apply.
We first address the argument that shooting into her home gave rise to tort liability unprotected by I.C. § 34-13-3-3(7). Excessive force claims are governed by a Fourth Amendment objective reasonableness standard. Graham v. Conner, 490 U.S. 386, 388 (1989). The excessive force claim must be evaluated from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. at 396-97. Factors to be considered in determining the appropriate amount of force include the severity of the crime involved, whether the suspect is an immediate threat to the officers, and whether the suspect is attempting to resist or evade arrest. Id.
(B) To effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer . . . .
Furthermore, while the Fourth Amendment requires a search warrant before lawfully entering a premises, the exceptions to this requirement include risk of bodily harm or death. Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991).
In this case, OBannon has not demonstrated that the officers use of force was unwarranted or excessive. Instead, the officers actions were reasonable under a Fourth Amendment analysis and I.C. § 35-41-3-3(b). Nunn had attempted to kill one police officer and had fired at the assembled officers from inside OBannons home. Record at 15, 17, 19. Thus, the officers acted legally when they fired into OBannons home. Furthermore, the risk of bodily harm or death was such that it was legal for the officers to enter into her home without a warrant, to search the home, and to momentarily detain OBannon in the process. See Harless, 577 N.E.2d at 248. These acts were performed while officers effected the arrest of a fleeing, armed felon. R. at 14-19. OBannon has not made any persuasive argument that the police presence in her home was illegal or that they negligently breached a duty to her. Because the officers were enforcing the law, and their actions did not constitute false imprisonment or false arrest, their conduct is immunized. I.C. § 34-13-3-3(7).
Furthermore, we note that this case is nearly identical to another in which summary judgment was granted and upheld on appeal, State v. May, 469 N.E.2d 1183 (Ind. Ct. App. 1984). In that case, Indiana State Police officers were chasing a fleeing murder suspect who took refuge in the home of plaintiff May, seizing three hostages as he did so. May, 469 N.E.2d at 1183. The state SWAT team fired tear gas and entered the home, freeing the hostages. Id. The Mays sued the state seeking to recover for damage to their home. Id. In that case, we held the State immune from liability under the Indiana Tort Claims Act, reasoning that the legislature granted immunity to a public entity for losses incurred while the State or its employees enforced the law. Id. at 1183-84. The facts in this case, as in May, constitute a clear instance of a need for the policy of governmental immunity and a clear application of I.C. § 34-13-3-3(7).
Footnote: The common law exceptions include: failure to prevent crime, appointment of an incompetent official, or an incorrect judicial decision.


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The algorithm for short term prediction of powerful solar flares, based on SSRT data, includes microwave emission characteristics in total and polarized flux, the structure of active region (AR) magnetic field at the photospheric level, and Ha patrol data.
Unlike the familiar criterion reported by Tanaka and Enome (1975), our prediction technique takes into account physical characteristics of the generation of emission in the source region and during its propagation in the corona of the AR. For this purpose, the visible solar surface is divided into longitudinal zones, and the indicator of the preflare situation is taken to be the deviation of the observed polarization distribution from a “normal” distribution (not a flare-hazardous one, but corresponding to quiet conditions of the AR) in the zone where the AR resides at a given time (Maksimov et al., 1990a). The criterion was tested through a retrospective prediction using the SSRT data obtained during the time interval 1982–1986. The analysis included 595 days of observation. We predicted flares of importance ³ 1N and quiet days with no flares of such importance. The predictability for the quiet days and for days with flares was 55% and 65%, respectively (the table of predictabilities may be found in a paper of Maksimov et al., 1990a). A significant number of the events with unsatisfactory predictability occurred near the boundaries between longitudinal zones. Therefore, a statistical study was made of the appearance (disappearance) of microwave emissions when the AR appeared from behind (disappeared beyond) the east (west) limb (the study covered 155 sunspot groups for the period 1988–1991; Maksimov and Bakunina, 1995), and of the polarization inversion phenomenon at the solar disk passage of the AR (the study covered 54 AR’s for the period 1982–1988; Maksimov and Bakunina, 1991). This permitted us to obtain empirical formulas for determining the individual boundaries of longitudinal zones for each particular AR according to parameters of the sunspot group in the optical emission.
An analysis of the relationship between the flare X-ray importance and the AR emission flux prior to the flare showed that solar flares occur in AR’s with both low and high flux values. If, however, the flare occurs in the AR with the flux in excess of 20 sfu, it will most likely be a powerful one (Maksimov and Bakunina, 1996).
The behavior of the ratio of the microwave emission flux to the sunspot area, F/S, represents quite well the contribution from the emission of a coronal condensation at different stages of AR development. By investigating 10 AR’s, it was possible to identify with confidence AR’s with a monotonic variation of F/S (4 AR’s, 49 days of observation) and with a non-monotonic variation of F/S (6 AR’s, 74 days of observation). Examples of such a behavior are given in Figure 1. The highest flare productivity corresponds to AR’s which are characterized both by high flux values and by a non-monotonic character of flux-to-area ratio behavior (the table of the flare productivity for AR’s with different values of Fand with a different behavior of F/S may be found in a paper of Maksimov and Bakunina, 1996).
The degree of subflare – microwave burst connection (Nb/Nf, where Nb is the number of microwave bursts, and Nf is the number of subflares) is typically below 30%. However, for some periods of AR lifetime the value of this parameter can exceed 70%. We investigated 12 AR’s for 99 days of observation. A total of 295 subflares occurred during the time interval of observation, and 173 of them were accompanied by microwave bursts <Nb/Nf > » 0.6. During 37 days of this period when flares of importance ³ 1B were observed, of the 140 subflares recorded, 110 were accompanied by bursts (Nb/Nf = 0.79). On the quiet days, the value of this parameter was 0.24. One day before a powerful flare, it increased to 0.7 and still remained rather high the next day after the flare (Figure 2, Maksimov et al., 1990b).
NLS are weakly-polarized microwave sources which appear prior to large X-ray flares above the polarity inversion line of the AR magnetic field (Uralov et al., 1998a). They are indicators of powerful solar flare buildup. NLS are readily identified on radio images (radio maps) of AR’s obtained either as part of a solar monitoring at the SSRT in the two-dimensional scanning mode (Uralov et al., 1998a) or on radio maps synthesized over several hours, based on monitoring data derived from scanning the Sun with one-dimensional resolution (Uralov et al., 1998b). A study of such radio images of more than 50 AR’s showed that NLS occur in 2/3 of cases prior to a flare of importance X 1.0 or higher.
This result was obtained, unavoidably, by using crude optical data. It is not inconceivable that if less powerful flares are accounted for, the correlation of NLS with flare buildup will be higher. This is supported by the detection of NLS by the experienced observer at the SSRT using only one-dimensional solar scans in the monitoring process. This fact, combined with analyses of AR radio images, demonstrated that the SSRT data alone are sufficient to detect NLS. Of course, NLS are associated with places of storage and quasi-stationary release of energy in the corona of AR’s. NLS brightness temperatures in the cases treated here were in the range 300–3000 thousand degrees.
Fig. 2. Character of variation of the degree of subflare – microwave burst connection prior to, during (time 0) and after the flare (region with 25% – 75% of values, median values, maximum and minimum values).
An algorithm for short term prediction of powerful solar flares was generated on the basis of our identified signatures of the preflare stage of AR development in microwave emission. The algorithm is essentially as follows. Optical data are used to measure the heliolatitude and heliolongitude of the AR, its extent and area, the slope of the axis of a sunspot group with respect to the equator, and the magnitude and polarity of the magnetic field in sunspots. The individual (for each AR) boundaries of longitudinal zones are calculated from these data using empirical formulas. The zones boundaries, AR positions, and one-dimensional solar scans in total and polarized microwave emissions are then plotted on the heliographic grid. This step is followed by an identification of AR’s in optical and microwave emissions and a comparison of the observed polarization distribution with a normal distribution in those zones where the observed AR’s are located. For each AR, the flux F and the area S are determined, and F/S and Nb/Nf are calculated. If the AR is away from boundaries of longitudinal zones, then the weight factor 2 is assigned to the flare-potential polarization distribution. If an abrupt change in F/S is observed, the value of the microwave emission flux F is higher than 20 sfu, and the value Nb/Nf exceeds 0.5, then the weight factor 1 is assigned to each of these indicators. Otherwise the weight factors are set equal to 0. If the AR lies near the boundaries of longitudinal zones (± 24 hours from the calculated position of the boundary), then the value 1 is also assigned to the flare-potential polarization distribution. If the sum of numerical factors exceeds the value 3 (in both cases), it is assumed that a flare of importance ³ M1.0 would occur in the AR within the subsequent 24 hours. The prediction is performed using a computer program. Input data are renewed every 2 hours. Intermediate information (position of the longitudinal zone boundaries, temporal behavior of F and F/S) is displayed in graphics windows.
The algorithm was tested through a retrospective prediction for the period from 11 to 25 December 1990 (the polarization distribution and the ratio Nb/Nf were taken into account). During this period, 7 AR’s crossed the solar disk, in which 20 flares of importance ³ M1.0 and 2 flares of importance ³ X1.0 were recorded. The forecast in terms of flares scored 60%, and no false alarms occurred. Thirty-eight cases of no flares were predicted for all AR’s during the above-indicated period, with 79% predictability; flares were recorded in 8 cases (21%) with "no" prediction.
For the periods from 1 to 5 October and from 15 to 22 December 1992, real-time predictions were carried out. Data on AR’s and magnetic fields were received from the Sayan observatory by teletype. For lack of communication with the Baikal observatory, the parameter Nb/Nf was not used. In October, 6 AR’s were observed to cross the solar disk. A no-flare prediction was made for all days, and no flares were in fact recorded. For December, 7 quiet days and a flare for 1 day were predicted. No flares occured in actual fact.
At the moment there is no way of claiming that the prediction algorithm has passed a reliable, statistically sound test. However, some optimism derives from the fact that the four indicators share a common physical reason: a substantial increase of the role of microwave emissions from the corona of the AR at the preflare stage of its development. An important distinctive feature of this algorithm is the possibility of forecasting flares in near-limb regions (both on the visible and averted side) of the solar disk, which is beyond the reach of predictive techniques based on optical monitoring data.
Korobchuk, O.V., and N.G.Peterova, Spectral Investigations of Proton-active Regions on the Sun at Centimeter Wavelengths, in Radio Emission of the Sun, edited by A.P.Molchanov, pp. 102-114, LGU Publ., Leningrad, 5 (1984).
Maksimov, V. P., V. P. Nefedyev, G. Ya. Smolkov, and I. A. Bakunina, Flare Activity Prediction from the Polarization Distribution of Microwave Emission of Sunspot Groups, in Solar-Terrestrial Predictions, edited R.J.Thompson et al., pp. 526-532, NOAA, Boulder, 1 (1990a).
Maksimov, V. P., G. N. Zubkova, and A. V. Borovik, An Investigation of the Subflare-Microwave Burst Connection, Astron. Nachrichten, 311, 299 (1990b).
Maksimov, V. P., and I. A. Bakunina, Change in the Sign of Circular Polarization of 5.2-centimeter Microwave Emission from Active Regions, Soviet Astron., 35, 194 (1991).
Maksimov, V. P., and I. A. Bakunina, Behavior of Microwave Emission from Near Limb Active Regions, Astron. Report, 39, 250 (1995).
Maksimov, V. P., and I. A. Bakunina, S-component Flux Variations and Solar Flares, Astron. Report, 40, 286 (1996).
Tanaka, H., and T. Kakinuma, The Relation Between the Spectrum of Slowly Varying Component of Solar Radio Emission and Solar Proton Event, Report of Ionospherical Space Research of Japan, 18, 32 (1964).
Tanaka, H., and S. Enome, The Microwave Structure of Coronal Condensations and its Relation to Proton Flares, Solar Physics, 40, 123 (1975).
Uralov, A. M., V. V. Grechnev, S. V. Lesovoi, R. A. Sych, N. N. Kardapolova, G. Ya. Smolkov, and T. A. Treskov, Two-dimensional SSRT Observations of the Flare-productive Active Region in July 1996, Solar Physics, 178, 119 (1998a).
Uralov, A. M., R. A. Sych, V. L. Shchepkina, G. N. Zubkova, and G. Ya. Smolkov, Weakly Polarized Microwave Sources in Active Regions Prior to Large X-ray Flares, Solar Physics, 183, 359 (1998b).

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New York: AMS Press, 1973. Hardcover. facsimile edition, 8vo. 376 pp. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine.
Rubbettino, Softcover. 8vo. Roma, 16-18 maggio 2002. M50. Fine.
Privately Published, 2004. Hardcover. 4to. Bound in full leather. Special edition given to patrons of the Lyric. Signed by Bill Mason and Sir Andrew Davis. P38. Fine.
London: Malone Society, 1960. Hardcover. Reprint, 8vo. 119 pp. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. H1. Fine.
Portland , OR: Amadeus Press, 1990. Hardcover. 8vo. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Carbondale: Southern Illinois University Press, 1992. Hardcover. First Edition, 8vo. 314 pp. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Garland Publishing, 1979. Hardcover. 4to. Two volumes. M12. Fine.
Barenreiter-Verlag Karl Votterle, 2005. Hardcover. 4to. 24 pp. With CD. Documenta Musicologica. M12. Fine.
London: MacDonald, 1966. Hardcover. First Edition, 8vo. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Exeter: University of Exeter Press, 1998. Hardcover. 8vo. 294 pp. Five volumes. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
London: C. W. Beaumont, 1945. Hardcover. 8vo . Signed by Beaumont beneath book's dedication. Postcard and envelope from Beaumont laid in. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M20. Very Good.
London: C. W. Beaumont, 1935. Hardcover. 8vo . We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Very Good.
London: Oxford University Press, 1992. Hardcover. 8vo. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Art of the Organ, Inc., 1971. Hardcover. 8vo . We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine.
Paris: E. Et A. Girod, 1860. Hardcover. 8vo . Bound in a half leather binding. SLE. Very Good.
University of Nebraska Press, 1996. Hardcover. 8vo. 321 pp. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Honolulu: University of Hawai`i Press, 2002. Hardcover. 8vo . Four volumes. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine in Fine Dust Jacket.
Garland Publishing, 1981. Hardcover. 4to. 340 pp. Series D-Volume 9. M12. Fine.
Bergamo: Fondazione Donizetti, 2000. Hardcover. 8vo. In slipcase. We specialize in fine books in collectible condition. Orders are professionaly packaged and shipped promptly. M12. Fine.

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(a)In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(1)Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2)Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3)Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4)Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5)Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
The common law approach to authentication of documents has been criticized as an “attitude of agnosticism,” McCormick, Cases on Evidence 388, n. 4 (3rd ed. 1956), as one which “departs sharply from men's customs in ordinary affairs,” and as presenting only a slight obstacle to the introduction of forgeries in comparison to the time and expense devoted to proving genuine writings which correctly show their origin on their face, McCormick §185, pp. 395, 396. Today, such available procedures as requests to admit and pretrial conference afford the means of eliminating much of the need for authentication or identification. Also, significant inroads upon the traditional insistence on authentication and identification have been made by accepting as at least prima facie genuine items of the kind treated in Rule 902, infra. However, the need for suitable methods of proof still remains, since criminal cases pose their own obstacles to the use of preliminary procedures, unforeseen contingencies may arise, and cases of genuine controversy will still occur.
Illinois courts are dealing with unreliable expert witness testimony by creating a new foundational element.
See People v. Jones, 2015 IL App (1st) 121016 (04/22/2015).
The defendant was convicted in a jury trial of first-degree murder based on circumstantial evidence. It was a close case with no eyewitnesses to the shooting. Defendant denied being the shooter. However, a gun was recovered from his home.
A bullet fell out of the victim’s body and and casings were recovered from the crime scene. A forensic scientist from the Illinois State Police laboratory specializing in firearms identification testified as an expert witness.
The firearm/toolmark examiner testified that the question of what is “sufficient agreement” between the items is based on his training and experience. ¶ 34. The expert testified that he does not use a national standard, and that examinations at the Illinois State Police laboratory are “just based on our training and experience, which is verified by another examiner,” and that there is no Illinois State Police standard. ¶ 34.
The expert gave his opinion that there was sufficient agreement between the bullet recovered from the victim’s body and the test bullets fired from defendant's gun. Thus, the bullet recovered from the victim’s body was fired from defendant's gun.
Was there a sufficient foundation laid by the expert witness allowing him to establish a sufficient basis for the expert’s opinion testimony?
To begin to answer this question we must first look at the rules.
What Precisely Are the Rules on Admitting an Expert Witness?
Three Illinois Rules of Evidence are relevant here.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Rule 702.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 703.
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Rule 705.
According to these rules, it is clear that a witness who has been qualified as an expert witness need not testify “to the underlying facts or data” on which the opinion is based upon. Rule 705. “The facts or data need not be admissible in evidence.” Rule 703.
However, the reviewing court in this case ruled that “all expert testimony, whether scientific or not, must have an adequate foundation in order to be admissible.” ¶ 54. “[T]he admission of an expert's testimony requires the proponent to lay an adequate foundation establishing that the information upon which the expert bases his opinion is reliable.” ¶ 54 quoting People v. Safford, 392 Ill. App. 3d 212, 221 (2009).
This foundational requirement is required for the admission of all expert opinions. ¶ 54.
The appellate court then proceeded to overturn the murder conviction because the the testifying expert failed to explain the specific striations that he used to form his opinion. Thus, this expert failed to lay an adequate foundation.
So, if prosecutors have to start making sure to elicit the exact data points from the expert before the expert gives her opinion then this a rule the judges are creating from the case law.
Well, the reviewing court cited People v. Safford, 392 Ill. App. 3d 212, 221 (2009) (quoting Hiscott v. Peters, 324 Ill. App. 3d 114, 122 (2001), citing Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000)) when it described this foundational element.
The appellate court also felt that “[p]art of the general foundation requirement for expert testimony is that ‘it must be shown that the facts or data relied upon by the expert are of a type reasonably relied upon by [experts] in that particular field in forming opinions or inferences.” People v. Smith, 2012 IL App (1st) 102354, ¶ 70 (quoting People v. Contreras, 246 Ill. App. 3d 502, 510 (1993)).
The court saw this as an admissibility issue, not merely weight.
The court was acutely aware of the 2009 forensic science report that widely condemned many scientific procedures as being widely unreliable. See this report here.
Where It DID NOT Come From?
One thing is for sure. This “foundational” element for admission of an expert witness opinion is not in the rules.
As stated above, Rules 702, 703 and 705 do not require that the expert witness first explain what data is being relied upon to form the expert’s opinion. They rules say quite the opposite.
The case that is often cited as the case establishing Illinois as a “Frye” state is Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002). Rule 702 itself refers to this case in the comments.
Remember, a Frye Hearing is required whenever scientific evidence is new or novel. This was not the issue in this case.
During the initial “Are we a Frye State Debate?” the idea of “Frye-plus-reliability” first came up. This was the idea that after a scientific technique or methodology is recognized as generally accepted, a trial court should still have to consider whether the opinion in the case is reliable.
Today, we clarify that this is not the standard in Illinois. The trial court is not required to conduct a two-part inquiry into both the reliability of the methodology and its general acceptance. The determination of the reliability of an expert's methodology is naturally subsumed by the inquiry into its general acceptance in the scientific community. Simply put, a principle or technique is not generally accepted in the scientific community if it is by nature unreliable. Additionally, the Frye-plus-reliability test impermissibly examines the data from which the opinion flows, while the technique remains generally accepted. Questions concerning underlying data, and an expert's application of generally accepted techniques, go to the weight of the evidence, rather than its admissibility. Donaldson, 199 Ill.2d at 81.
The closest the Illinois Supreme has come to a foundational element for expert witnesses was in People v. McKown, 236 Ill.2d 278 (2010).
This is the case where the Court held that the “admissibility of HGN evidence in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualification of its witness, subject to the balancing of probative value with the risk of unfair prejudice.” [emphasis added] McKnown, 236 Ill.2d at 314.
The Illinois Supreme Court did not even come close to creating a foundational element for expert witnesses.
See McKnown, 236 Ill.2d at 306.
The court specifically held ”that evidence of HGN field-sobriety testing, when performed according to the NHTSA protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” 236 Ill.2d at 306.
The appellate court in the case at hand did not cite to McKnown for this principle.
The basic situation confronting the trial and appellate courts is this: They have to figure out what to do with scientific evidence that is not new nor novel yet for some reason deemed unreliable when applied to a specific case.
General Frye standards say the expert opinion is admissible if the expert is qualified. Under this rule, the defense is allowed to show jury the data points that the expert used to form their opinion.
That is what the line about letting it go to the weight but not the admissibility is all about.
This invented approach creates a new foundational element that takes into account the reliability of the evidence before allowing it to ever be seen by the jury.
This sounds like a “Frye-Plus-Reliability” standard but of course the court is not calling it that.
McKnown hints at what the correct procedural pathway the court should have followed. The Court stated its ruling was “subject to the balancing of probative value with the risk of unfair prejudice.” McKnown, 236 Ill.2d at 314.
We know what that is. Its the 403 balancing we do in practically every case! See Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
I know I looks like I want to a whole lot of trouble to point out an “error” in a case that I believe had the right outcome.
But I think the rules the matter.


§ 1. Auditor Board handles complaints that a chartered or certified accountant in the exercise of duties under section 1, paragraphs 2 and 3, of the law on the approved Auditors and audit firms (revisorloven), overrides the duties of the position entails. In cases where the Disciplinary Board for Chartered and registered accountants so far have been competent to deal with violations of the law on State authorised and registered Auditors, decided questions about violations committed before the entry into force of law No. 468 of 17. June 2008, however, after the existing rules. Before the Act's entry into force cases are brought before the Disciplinary Board for Chartered and registered accountants, finalized by the statutory auditor Committee.
(2). Complaints about an auditor's remuneration as well as collegial cases can not be referred to the Auditor the Board.
§ 2. Auditor Committee consists of a President and 2 Vice-Presidents, of which at least one Member should be a high court judge. Auditor Committee consists in addition of 12 other members, 3 of which must be certified public accountants, 3 must be registered Auditors and 6 are representatives of accounting users. Representatives of accounting users may not within the past 3 years have been approved Auditors.
(2). For each Member, with the exception of the President and the Vice-Presidents-designates a alternate 2.
(3). Committee members and alternates shall be appointed by the Danish Commerce and companies Agency for a period of 4 years.
(4). The Chairman shall decide on the basis of an assessment of the individual case how many and which members to participate in these proceedings. The number of Auditors should always correspond to the number of representatives for accounting users.
(5). Apart from cases that are decided by the President alone pursuant to section 7, the Auditor the Board's handling of a case that relates to chartered accountants, at least part 1 chartered accountant. Similarly, the Board's handling of a case involving registered accountants at least part 1 registered auditor. In cases where disqualification may be considered, see. section 44 (2) and (4) of the Act on approved Auditors and audit firms (revisorloven), subject to a minimum of contribute 2 respectively registered Chartered Accountants.
§ 3. None of the Committee members must take part in any proceedings, when after the code of Civil Procedure Act rules would be disqualified as a judge.
(2). A member shall give the Board notice of circumstances, which could lead to his disqualification, in accordance with article 3. (1).
(3). Questions about a member's capacity, should as far as possible, be brought before the Board's treatment of the case begins.
(4). Auditor Committee to decide whether a member may participate in a case treatment.
§ 4. The President shall organise the Auditor the Board's work, including the work of the Secretariat.
(2). Time, place and agenda for the Committee's meetings shall be fixed by the Chairman, who shall ensure their call. Is a meeting in public, see. § 9, paragraph 3, it shall, with a minimum of 3 days notice shall be published, indicating the time and place of the sitting-on the Auditor the Board's website www.disciplinaernaevnet.dk or in the Official Gazette.
(3). Of Committee meetings, a protocol must specify the time and place of the meeting, whether the meeting has been publicly which members who participated, as well as the names of the persons who have been present as parties or on their behalf or for their assistance. The Protocol implemented by the way after the President's detailed provision in each case.
(4). The President directs negotiations at Committee meetings.
(5). The Chairman shall ensure that the cases be promoted with due speed.
(6). A breakdown of the individual cases between the President and the Vice-Presidents shall be determined by the Chairman. The Vice-Chairmen shall, in the cases of the President is left to them, the powers conferred by this Ordinance vested in the President.
§ 5. A complaint must be made in writing to the Auditor the Board, kronprinsessegade 8, St., 1306 købehavn K.
(2). The complaint must contain a statement of the facts to be assessed by the Tribunal. A complaint must be filed with the Auditor the Board no later than five years after the Act or omission contrary to a duty which the complaint relates, has ceased.
(3). With the complaint should follow a fee of DKK 500 fee is not Included, the Chairman shall fix a time limit for payment, and the application as inadmissible, if the payment is not made at the latest by the deadline.
(4). For complaints lodged by the Danish Commerce and companies Agency, the financial supervisory authority, the Danish Ministry of taxation, municipal or regional regulatory authorities, the Prosecutor's Office, the Association of Chartered Accountants, Registered Auditors Association FRR or Auditor oversight, however, paid no fee.
§ 6. Law on open Government and Administration Act applies to the Board's activities.
§ 7. The President rejects the complaints, which are not covered by the Board's jurisdiction, including complaints from people who have no interest in the fact that the complaint is concerned, as well as complaints in advance must be deemed manifestly unfounded.
§ 8. Auditor Committee shall send the copy of the complaint letter with any annexes to the respondent with invitation to comment within a specified time limit. At the same time, the respondent have information that the Tribunal may meet with a person, possibly a lawyer, and that the complaint will be dealt with on this basis, if the respondent does not correspond to the proceedings.
(2). Defendant's opinion with any annexes must be submitted to the complainant. The President will find it necessary, the Parties shall have the opportunity to make further submissions to a prescribed time frame.
(3). The Chairman shall ensure that the necessary information to these proceedings is available, and that the necessary investigations are carried out. At any time during the proceedings may obtain further information.
(4). The Chairman shall ensure that the parties become aware of information from the other party, when these must be considered of importance to the merits of the decision, unless critical account of public or private interests to the contrary, including the account of client's business relationships or economic conditions.
§ 9. The parties have the right to appear before the Tribunal and testify Auditor.
(2). The President may permit other persons summoned to give evidence to the Committee.
(3). Auditor Committee meetings are not public. The President may, in accordance with the parties ' wish to allow the public access to Committee meetings, unless this is going to be able to add any undue infringement, including by business or operational secrets divulged.
§ 10. A complaint can be dealt with by written procedure, if none of the parties wants to appear before the Tribunal, and there is a consensus among the members hearing the case.
§ 11. Auditor the Board's decisions are made by ordinary majority vote.
(2). A decision must be substantiated and represent the minority setting.
(3). The decision cannot be brought before another administrative authority.
§ 12. Auditor Committee's decisions shall be entered in a Protocol, which must be signed by the President.
(2). Auditor Committee's decisions shall be sent to the parties, the Association of Chartered Accountants, Registered Auditors Association FRR as well as to the Danish Commerce and companies Agency.
(3). Auditor the Committee's rulings are published. The publication is done in the Retsinformations database, on the Board's website, or both.
(4). Receive complaints in whole or in part upheld, the Board or the Chairperson may Auditor on its behalf provide for full or partial repayment of the paid fee. The same applies, if the complaint is rejected.
§ 13. Auditor Board publishes an annual report on its activities.
§ 14. The notice shall enter into force on the 1. July 2008.


text:
Opinion Filed March 16, 1938.
Rehearing Denied April 28, 1938.
An appeal from the Circuit Court for Polk County, H.C. Petteway, Judge.
Maxwell Cobbey and Gordon C. Huie, for Appellees.
This case involves the question of whether a power to impose certain licenses contained in a municipal legislative charter was repealed, superseded, or suspended, by a provision contained in a later general Act.
This general question has often proved difficult of solution in this jurisdiction. Its consideration has been somewhat complicated by Section 24, Article III of the Constitution which provides that: "The Legislature shall establish a uniform system of county and municipal government, which shall be applicable except in cases where local or special laws are provided by the Legislature that may be inconsistent therewith."
It will be observed that the amendment of 1934 appears to contemplate that general laws relating to the government of counties and municipalities shall be applicable "except in cases where local or special laws for counties are provided by the Legislature that may be inconsistent therewith." The words "for counties" were inserted by the amendment of 1934, which would seem to so limit the clause as to indicate that uniform laws for the government of municipalities should be applicable in spite of the fact that there might be local or special laws relating to municipalities inconsistent therewith. However, the amendment of 1934 has little if any, application to the question before us here, which we think is governed by general principles of construction. Furthermore, we have held that this amendment to Section 24, Art. III, adopted in 1934, in so far as it affects special or local laws relating to the government of cities and towns, is not self-executing and cannot become operative until the Legislature has seen fit to pass the general system of laws for the classification and government of cities and towns so commanded by the amendment. See State v. Alsop, 120 Fla. 628, 163 So. 80; State v. Jones, 121 Fla. 216, 163 So. 590; State v. Emerson, 126 Fla. 576, 171 So. 663.
In this case the American Bakeries Company and Seybold Baking Company, both Georgia corporations, filed a bill against the City of Haines City, Florida, to enjoin the enforcement of Ordinance No. 160, in so far as it affected the business of the plaintiffs. The bill alleged that the American Bakeries Company owns and operates a bakery in Orlando, Florida, and Seybold Bakery Company owns and operates a bakery in Lakeland, Florida, and that each of them takes orders for and makes sales and deliveries of bakery products in a large number of cities in the State of Florida, including Haines City; that the bakery products sold at wholesale by plaintiffs in the City of Haines City are manufactured in their respective bakeries in Orlando and Lakeland and are delivered by trucks owned and operated by complainants to a large number of retail business houses in the City of Haines City; that the methods of taking the orders and making deliveries to stores in Haines City is, in some instances, that certain orders are taken by the operators of the trucks from certain business houses and such orders are filled by being delivered by the operators of the trucks on a subsequent day or days, and, in other instances, that the orders taken are filled and delivery made from goods and products at that time loaded on the trucks, thus making immediate delivery thereof.
The bill further alleges that Ordinance No. 160, which became effective August 4, 1934, requires plaintiffs to procure occupational licenses before they may be permitted to carry on the business above referred to in Haines City; that plaintiff had been paying such licenses up to September 30, 1937, but that Ordinance No. 160, in so far as it affects plaintiff's business, is in conflict with Chapter 18011, Acts of 1937, and especially Section 5 thereof, and that said Ordinance is therefore void and inoperative in so far as it affects the plaintiffs. A copy of the Ordinance is attached to the bill.
The defendant City and its officers interposed a motion to dismiss the bill of complaint upon various grounds and the Court sustained the motion to dismiss and denied the injunction prayed for. In connection with this ruling the Chancellor below rendered a well considered opinion in which among other things it was stated that it was admitted that the Ordinance does not attempt to impose a license on that part of the business done by the trucks of plaintiffs which is done by taking orders and subsequently bringing the products into Haines City and delivering the same, but that it only applies to that portion of the business done by plaintiffs in said City where the trucks, having the bakery products on them, and at the places of business of various prospective customers, take orders for such products and deliver same immediately from such trucks.
The legislative Charter of Haines City, Chapter 12790, Acts of 1927, in Section 115 thereof, authorizes the City Commission to impose license taxes, for the purpose of regulation or revenue, upon numerous occupations, businesses and privileges conducted within the City. Ordinance No. 160, adopted under this general power, requires a wholesale merchant, "including ambulatory," selling to the retail merchant direct from stock, to take out a license of $25.00 annually for each place of business, and provides that "each and every vehicle, truck, R.R. car, or stand, shall be construed as a separate place of business."
It will be observed that Section 5 of said Act imposes a State and County license tax of $25.00 upon all persons engaged in the business of selling tangible personal property at retail or wholesale, "which shall entitle him to maintain one place of business, stationary or movable," and "shall pay $25.00 for each additional place of business," but adds that: "Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid shall not be construed to be a separate place of business and no license may be levied on such vehicle or the operator thereof as salesman or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding."
Said Chapter 19011 is a broad general statute and contains 39 sections, but it does not purport to cover the entire field of license taxes, nor to afford a new revision of the entire subject of licenses; nor does it contain any general repealing clause.
"Section 38. That Sections 803 to 886, both inclusive; 890 to 899, both inclusive; 901 to 910, both inclusive; 913 to 964, both inclusive; 969, 971, 974 to 985, both inclusive; 988 to 993, both inclusive; 995 to 1005, both inclusive; of the Revised General Statutes of Florida 1920; and Chapter 14491 and Chapter 14528, Laws of Florida, Acts of 1929; and Chapter 16801, and Chapter 17167, Laws of Florida, Acts of 1935 are hereby repealed."
"Section 39. That nothing herein shall be construed to repeal any license tax now imposed by law and not specifically repealed hereby."
"1. The maxim of leges posteriores priores contrarias abrogant is not applicable to cases where the precedent Act is special or particular, and the subsequent Act is general, the rule being that a later general Act does not work any repeal of a former particular statute.
"2. In the construction of general and special Acts the maxim generalia specialibus non derogant applies, and a general Act will not be held to repeal or modify a special one embraced within the general terms of the general Act, unless the general Act is a general revision of the whole subject, or unless the two Acts are so repugnant and irreconcilable as to indicate a legislative intent that the one should repeal or modify the other.
"3. One statute will not be held to repeal a former one unless there is a positive repugnancy between the two, or the latter was clearly intended to prescribe the only rule which should govern the case provided for, or it revises the subject matter of the former, or expressly repeals it.
"4. The invariable rule of construction in respect to the repealing of statutes by implication is that the earliest Act remains in force, unless the two are manifestly inconsistent with and repugnant to each other.
"5. Laws should be construed with reference to the Constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other.
"6. Where one statute in comprehensive terms covers a subject and another later statute embraces only a particular part of the same subject, the two should be construed together unless a different legislative intent appears; and the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.
"7. While statutes may be impliedly as well as expressly repealed, yet the enactment of a statute does not operate to repeal by implication prior statutes unless such is clearly the legislative intent.
"8. An intent to repeal prior statutes or portions thereof may be made apparent when there is a positive and irreconcilable repugnancy between the provisions of a later enactment and those of prior existing statutes. But the mere fact that a later statute relates to matters covered in whole or in part by a prior statute does not cause a repeal of the older statute.
"9. If two statutes may operate upon the same subject without positive inconsistency or repugnancy in the practical effect and consequences, they should each be given the effect designed for them unless a contrary intent clearly appears."
The principles thus laid down were, and still are, closely in line with the weight of authority in this country. See 59 C.J. 904-924, 931-936.
Counsel for appellees rely strongly upon the opinion and decision of this Court in Sanders v. Howell, 73 Fla. 563, 74 So. 802, which cites with approval the above case, headnotes to which we have quoted. In the Sanders case, it appears that an ordinance of the City of Pensacola, enacted under the general licensing power contained in its legislative charter, imposed a license upon dairymen or other persons selling or delivering milk or cream in said city, whereas the general Act there involved provided that all farm and grove products, and products manufactured therefrom, when offered for sale or sold by the farmer or grower producing said products, "shall be exempt from all forms of license tax, State, County and Municipal." This general Act, like the one now before us, contained no general repealing clause. The Court held that the general Act did not operate a repeal of the licensing provisions of the Pensacola charter Act. Mr. Chief Justice BROWNE filed a vigorous dissenting opinion. On petition for rehearing the Court said that the majority opinion was controlled by Ferguson v. McDonald, 66 Fla. 494, 63 So. 915; that the general Act under consideration "does not expressly refer to or repeal any existing law"; that the local or special law was applicable to the subject involved, and that, under Section 24, Art. III, of the Constitution, the general law is not applicable, "when local or special laws are provided by the Legislature that may be inconsistent therewith."
"When there are valid local or special laws relating to the powers and government of particular municipalities that are in conflict with the general statutory law, such local or special laws prevail."
The constitutional provision uses the word "inconsistent." But undoubtedly the decision of the case was correct, in view of the very language of the general Act itself, above quoted.
"In the construction of general and special Acts the maxim generalia specialibus non derogant applies, and a general Act will not be held to repeal or modify a special one embraced within the general terms of the general Act, unless the general Act is a general revision of the whole subject or unless the two Acts are so repugnant and irreconcilable as to indicate a legislative intent that the one should repeal or modify the other."
"One statute will not be held to repeal a former one unless there is a positive repugnancy between the two, or the latter was clearly intended to prescribe the only rule which would govern the case provided for, or it revises the subject matter of the former, or expressly repeals it."
Thus the rules of construction enunciated in the Sanders case were substantially the same as those already established by previous decisions. It thus appears that a special Act will not be repealed, in whole or in part, where it is merely inconsistent with a subsequent general Act but such repealing effect only occurs when it is in direct conflict with and clearly repugnant to the general Act. And even when such repugnancy exists, the later general Act will not repeal the special or local Act when the general Act, by its terms, evidences a clear legislative intention to the contrary.
The cases of Stewart v. DeLand and Lake Helen S.R. B. Dist., supra, and the cases of Sanders v. Howell and State v. Sanders, supra, and the rules of construction therein enunciated, have been frequently followed and quoted with approval by this Court. It is not necessary to cite the cases.
"The general rule that a general Act will not be held to impliedly repeal or modify a special or local one, is subject to the qualification that this rule does not apply where the general Act is a general revision of the whole subject, or where the two Acts are so repugnant and irreconcilable as to indicate a legislative intent that the one should repeal or modify the other. Sanders v. Howell, 73 Fla. 563, 74 So. 802; State v. So. Land Co., 45 Fla. 374, 33 So. 999; Stewart v. Special Road Dist., 71 Fla. 158, 71 So. 42; State v. Sanders, 79 Fla. 835, 85 So. 333.
"But here Section 7 of the state statute expressly provides that no tax shall be placed on the manufacture, distribution, transportation, importation or sale of such beverages by way of license, excise, or otherwise, by any municipality, anything in the municipal charter to the contrary notwithstanding, `except as herein expressly authorized.' That provision disposes of this case, clearly showing the legislative intent that no such ordinance as the one here in question should be adopted or enforced by any municipality in the State."
The general Act construed in Langston v. Lundsford, did contain a general repealing clause but the Court did not mention it in its opinion, as the legislative intent was clearly shown by the terms of the general Act without resorting to the general repealing clause, which was merely an additional indicia of such legislative intent. Indeed, a general Act may, and frequently does, operate to repeal a repugnant local or special law, though the general Act contains no general repealing clause, where the legislative intent to repeal all conflicting local or special laws is made plain by the terms and purposes of the general Act.
Thus in Anderson v. Wentworth, 75 Fla. 300, 78 So. 265, the general comprehensive Act of 1917, to license and regulate the running of motor vehicles on the public highway, was held to repeal a city ordinance in conflict therewith. The general Act covered the entire subject and made it "unlawful for any county or municipality to collect any license or registration fee on any motor vehicle" except vehicles used for hire. True, the general Act contained a general repealing clause, but it is doubtful that this Court would have reached a different conclusion if that clause had been omitted.
"Chapter 17257, Acts of 1935, is the latest expression of the Legislature on the subject of licensing slot machines and coin operated devices, it covers the whole subject matter fully, it defines a different policy from that heretofore in force, it sets out in terms the amounts that may be imposed as license taxes by the state, county, and municipality, and its provisions are such as to expressly repeal every other law on the subject. State, ex rel. Bradford, v. Stoutamire, 98 Fla. 486, 123 So. 834, and cases therein cited; State, ex rel. Baker, v. McCarthy, 122 Fla. 749, 166 So. 280."
In that case, the general Act contained a general repealing clause, but its intent to preempt and occupy the entire field was manifest from the affirmative provisions of the Act.
"We construe this Act to mean that it fixes a state policy for the licensing of pool and billiard halls in this state and that in so far as it limits the license which may be imposed by a municipality for the privilege of operating pool or billiard halls it supersedes all special legislative Acts theretofore passed inconsistent with the provisions. It is not necessary for us to go beyond this jurisdiction for authority for this holding. See State, ex rel. Greeson, v. Roberts (Fla.), 170 So. 457."
It thus appears that in this group of cases — Langston v. Lundsford, Anderson v. Wentworth, State, ex rel. Greeson, v. Roberts, and City of Orlando v. Gill — the court was dealing with general laws that were intended to completely cover the subject dealt with, and which were manifestly intended also to define a new or different legislative policy with reference thereto. It so happens also that each of said general Acts emphasized this evident legislative intent by embracing a general repealing clause. The general Act now before us for consideration does not, in our opinion, fall entirely within this group of cases, in that the Act as a whole does not completely cover the subject of licenses, nor does it contain a general repealing clause. But certain particular provisions of the Act, considered by themselves, are apparently, from the language used, intended to prescribe an exclusive state rule or policy to govern those particular matters, any and all local or special laws to the contrary notwithstanding. Whether this apparent intent was nullified by other sections of the Act evidencing a contrary intention, we will presently consider. Indeed, appellants do not contend that Chapter 18011 was intended to cover the whole licensing field, or to be a general revision of all license laws or of the powers of municipalities. Their position is that, except as otherwise specifically provided by the Act, the license laws and powers of municipalities were not repealed or superseded, and they cite the proviso contained in Section 2 of the Act, hereinabove quoted, in support of this position. But they do contend that, in order to operate as a repeal of conflicting local or special laws, it is not necessary that the Act cover the entire field of license taxes for every possible subject; but that it is sufficient to have that effect as to those particular subjects which are dealt with in the Act, with respect to which an intention to repeal special laws in conflict therewith is plainly manifested, such, for instance, as the provision of the Act respecting the imposition of license taxes upon trucks used by a person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid.
As between two general Acts, where a general statute covers the whole subject matter of an earlier Act, and was evidently intended to be a revision of, or substitute for, the earlier Act, although it contains no express words to that effect, it operates as a repeal of the earlier Act to the extent that its provisions are revised and supplied, thus giving effect to the evident legislative intention, even though the later Act contains no express repealing clause. State v. Stoutamire, 98 Fla. 486, 123 So. 834, and cases cited. And this may be true even where the later Act covers a broader field than the earlier Act. Sparkman v. State, 71 Fla. 210, 71 So. 34. See also Jernigan v. Holden, 34 Fla. 530, 16 So. 413; Dees v. Smith, 55 Fla. 652, 46 So. 173. The intent of a statute is to be determined by a consideration of the language used, the subject matter, the purpose designed to be accomplished, and all other relevant and proper matters that may assist in ascertaining the legislative intent. Sparkman v. State, supra.
As was said by Mr. Chief Justice BROWNE, in his dissenting opinion in Sanders v. Howell, supra: "The rules governing the construing of legislative enactments are prescribed for the purpose of ascertaining the legislative intent, and should not be applied to thwart it." And as was said by Mr. Justice WHITFIELD in another case, Peoples Bank v. Arbuckle, 82 Fla. 479, 90 So. 458, "The intent of the statute is the law, and that intent should be duly ascertained and effectuated." This is the fundamental rule of construction to which all other rules are subordinate.
"It will be presumed that the Legislature, in enacting a statute, acted with full knowledge of existing statutes relating to the same subject; and where express terms of repeal are not used, the presumption is always against an intention to repeal an earlier statute, unless there is such inconsistency or repugnancy between the statutes as to preclude the presumption, or the later statute revises the whole subject matter of the former.
"Where a statute expressly repeals specific Acts, there is a presumption that it was not intended to repeal others not specified. In such case there is implied approval of the statutes not specified, as well as evidence of an intention to leave them undisturbed, and the doctrine of implied repeal does not apply."
"Where two legislative Acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, will, although it contains no repealing clause, govern, control, or prevail, so as to supersede and impliedly repeal the earlier Act to the extent of the repugnancy, provided the conflict, inconsistency, or repugnancy is of the character and degree requisite to the application of the rule."
"While the rule undoubtedly is that a general affirmative Act, or the general provisions of an Act, without express words of repeal, ordinarily will not repeal or affect a previous special or local Act, or the special or particular provisions of a prior Act, on the same subject, yet it is not a rule of positive law, but one of construction only; a special Act may be impliedly repealed by a general one, and the question whether it has been so repealed is always one of legislative intention. In accordance with this rule, the presumption is that a general Act does not repeal a local or special statute. The rule and presumption may apply not only where the two Acts are not inconsistent or repugnant, but even where they are somewhat inconsistent, or even though the terms of the general law are broad enough to include the cases embraced in the special or local Act. They apply unless a different legislative intent is plainly, clearly and unequivocally manifested, as where the two Acts are irreconcilably inconsistent or repugnant, or where the general Act not only covers the whole subject matter of the special one, but is also intended to contain all the law on the subject and to be exclusive, or to take the place of the special Act, or is clearly intended to establish a mandadatory and uniform rule or system for the whole state. Also a construction in favor of an implied repeal of a local, special, or specific Act by a general one will not be adopted unless it is absolutely necessary in order to give the words of the general Act any meaning at all.
The intent of a general statute to repeal or supersede a special statute relating to a particular municipality will not be implied unless the repugnancy between their provisions is so irreconcilable that no reasonable field of operation for either can be found without trenching on the ground covered by the other, or when the manifest intention of the later enactment is to revise the whole matter covered by disconnected general and special enactments, to furnish a substitute for all, and to introduce a new and exclusive rule upon the subject. 59 C.J. 934; City of St. Petersburg v. Pinellas Power Co., 87 Fla. 315, 100 So. 509.
We have reviewed these rules of statutory construction at some length because the instant case presents what almost amounts to an enigma, and also because of the frequency with which cases are brought to this court involving this general question of whether a general statute expressly or impliedly repeals, supersedes or suspends, in whole or in part, some previous local or special Act.
The ordinance adopted in 1934, under the general licensing power granted to Haines City by its legislative charter Act, imposed a license upon "wholesale merchants (including ambulatory)" of $25.00 annually for each and every place of business, and provided that each and every vehicle or truck should be construed to be a separate place of business, whereas Section 5 of the general Act, Chapter 18011, Laws of 1937, imposed an annual license tax of $25.00 on each person engaged in the business of selling tangible personal property, as owner or agent, which would entitle such person to maintain one place of business, stationary or movable, and also $25.00 annually for each additional place of business; wholesalers and others not paying a license tax on gross receipts and who keep a stock for sale to pay an additional tax of $1.50 per $1000.00 of stock; and adding that: "Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business, and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding."
If the foregoing were the only portions of the general statute to be considered, we would, in the light of the above authorities, unhesitatingly hold that the general Act, impliedly repealed or suspended the authority of the City, under its licensing power granted by special charter Act, to impose by ordinance a license tax on each and every truck operated by a wholesaler used for the sale and delivery of tangible personal property from his established place of business on which a license had been paid, treating each vehicle or truck as a separate place of business, as attempted to be authorized by the City ordinance here involved, because the ordinance in that respect is clearly and irreconcilably in conflict with and repugnant to the provisions of the later general statute above quoted from. Indeed the statute expressly says that such trucks "shall not be construed as separate places of business," and expressly prohibits "any county or municipality" from levying a license thereon, "any other law to the contrary notwithstanding." The ordinance in that respect is not merely "inconsistent" with the quoted provisions of the general statute; it is directly repugnant thereto. And the legislative intent, which in the last analysis is the cardinal rule by which this case must be determined, is clearly manifested by the language used in said Section 5.
Now, does Section 2 of the ordinance, quoted earlier in this opinion, rebut the intent so clearly shown by Section 5? While somewhat equivocal, in our opinion, if anything, it tends more strongly to support the plain intent of Section 5 than it does to support the contentions of appellees to the contrary. The words "or other law," and "except as otherwise authorized by law," as used in said Section 2, may very well have meant some other law enacted by the Legislature as distinguished from a mere city ordinance passed under the general licensing power contained in a city charter Act. This special charter Act, and the general power therein contained to impose licenses on businesses within the city, were not themselves repealed, but the intent of Section 5 was to limit or restrict the exercise of, or at most to partially supersede or suspend, the general licensing power of any and all municipalities so as to exclude therefrom the power to impose licenses on trucks used for the purposes named in Section 5, as separate places of business, which particular power had never been expressly granted by this special charter Act. This new rule was manifestly intended by Section 5 to operate uniformly throughout the State, thus establishing a new State policy on that subject which any and all municipalities were prohibited from violating.
We come now to consider the effect of Sections 38 and 39.
Section 38 of this general Act expressly repeals numerous sections of the Rev. Gen. Statutes of 1920, and also Chapters 14481 and 14528, Laws of 1929, Chapter 16801 and Chapter 17167, Laws of 1935. All of these laws thus expressly repealed were general State statutes relating to and imposing various occupational license taxes, except Chapters 14528, 16801 and 17167, which were statutes imposing licenses on certain special classes of business, such as itinerant merchants (14528), beauty-parlors (16801) and pool and billiard halls (17167) respectively. None of these Acts so repealed were special or local Acts; none of them applied to any particular city.
The contention is that as this general statute expressly repealed certain specific general Acts, it must be presumed that it was not intended to repeal or modify any others not specified either special or general. There is a general rule, supported by the authorities, to the effect that where a statute expressly repeals specific Acts, the presumption is that it was not intended to repeal others not specified. But the argument based thereon as applied to this special charter Act or to the ordinance enacted thereunder, is weakened by the fact that the repealing clause in this general Act refers only to other general state statutes, dealing, like the one here involved, with occupational license taxes imposed on certain businesses and occupations throughout the State, or potentially applicable throughout the State.
"Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business, and no license may be levied on such vehicles or the operator thereof as salesman or otherwise, by the State or any county or municipality, any other law to the contrary notwithstanding."
Surely this language must have been considered by the Legislature as superseding or suspending the operative effect, of any special laws, or ordinances adopted under general charter powers, contrary to said general law, as to this particular matter.
Admitting freely the closeness and difficulty of the question involved, our conclusion is that the Legislature did not, by Sections 38 and 39, intend to nullify or set aside the plain intent of the language used in another section of the same Act, namely said Section 5 thereof.
But appellees contend that, even if given its plainly stated effect, this particular provision of Section 5 cannot be allowed to stand, because it permits a classification which is discriminatory, and repugnant to Sections 1 and 5 of Art. IX of our Constitution, in that it authorizes a license upon a local wholesale merchant doing business within the city, but prohibits the city from imposing a license on a nonresident wholesale merchant doing business by trucks within the city; that this classification is based solely on the fact that one wholesale merchant has an established place of business within the city while the other has not; citing Hamilton v. Collins, 114 Fla. 276, 154 So. 201. But, if the city is a proper party to raise this question, we do not think the contention is well founded, nor that the case cited is in point. We recognize the rule that businesses cannot be classified, for purposes of license taxation, merely upon their location. But that rule does not apply here, because the wholesale businesses located in Haines City may not, under this general Act, be taxed in a manner different from the businesses of wholesalers located in any other city in the State with regard to the exemption from license taxation on trucks operated for sale and delivery of goods from an established place of business on which a license is paid.
Our conclusion is that the Legislature intended that the mandatory general provisions of Section 5 of this Act should be given effect, and that it should suspend or supersede the operative effect of any provisions in any special municipal charter Acts, or ordinances passed thereunder, which are plainly in conflict with, or repugnant to, said Section 5, such as the particular ordinance of the City of Haines City here involved. The wisdom or fairness of the statute was a question for the Legislature, and not this court, to determine.
ELLIS, C.J., and WHITFIELD, TERRELL and BUFORD, J.J., concur.
Section 38 of Chapter 18011, Acts of 1937, specifically repeals enumerated sections and chapters of general state license statutes, and Section 39 expressly enacts "that nothing herein (meaning in the Chapter) shall be construed to repeal any license tax now imposed by law and not specifically repealed hereby" (meaning by the Act). The laws specifically repealed are stated in Section 38 of the Act, none of which are local or special laws. The Act does not specifically repeal all conflicting laws, but Section 38 does expressly repeal stated statutes, and Section 39 expressly repeal stated statutes, and Section 39 expressly provides that nothing in the Act shall be construed to repeal any license tax law not specifically repealed by the Act.
Such quoted provision does not repeal any conflicting law; but it should be given its intended effect as shown by its language and the connection in which it is used, which is that notwithstanding any other law to the contrary, no license tax by the State or any county or municipality may be levied on vehicles or the operators thereof as stated in the particular quoted provision.
The legal effect of the quoted particular provision as used and considered in connection with Sections 38 and 39, is not to repeal but to suspend or supersede, until otherwise duly provided, all conflicting provisions of general laws, if any, levying State or county license taxes that are not specifically repealed by Section 38 of the Act, and to suspend or supersede all provisions of municipal charters or other special or local laws or duly authorized ordinances, relating to municipal taxation of vehicles and their operators when the vehicles are used and the operators thereof are engaged as stated in the particular quoted provision of Section 5 of Chapter 18011, Acts of 1937. See Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34; 59 C.J. 940. Section 90 (74) C.G.L. relates to repealed statutes. The policy of the provision of the statute was determined by its enactment. Courts have no part or responsibility in determining the policy of statutes.
BROWN and BUFORD, J.J., concur.
"AN ACT Relating to License Taxes, Repealing Chapter 14491, and Chapter 14528, Laws of Florida, Acts of 1929; Repealing Parts of Chapter 2 of Title VI, of Division 1 of the Revised General Statutes of Florida, of 1920; Repealing Chapter 16801 and Chapter 17167, Laws of Florida, Acts of 1935; Imposing Certain License Taxes and Providing That License Taxes Shall Be a Lien on the Property of the Person Liable Therefor, Under Certain Circumstances."
It will be noted that the real subject of the Act, as expressed in the title, "An Act relating to license taxes," is broad and general in its scope, and it also appears that Section 5, and all of the provisions of said section, is "matter properly connected with the subject of the Act."
We are clearly of the opinion that Section 5 of the Act is not subject to the attack thus made upon it. See Grand Lodge Knights of Pythias v. Moore, 120 Fla. 761, 163 So. 108; State, ex rel. Adams v. Lee, 122 Fla. 639, 166 So. 249; Flint v. Duval County, 126 Fla. 18, 170 So. 587; Singleton v. Knott, 101 Fla. 1077, 133 So. 71; Spencer v. Hunt, 109 Fla. 248, 147 So. 282; Sheip Company v. Amos, 100 Fla. 863, 130 So. 699.
The generality of the title of a statute does not invalidate it so long as the title fairly comprehends and gives notice of the subject sought to be accomplished by the statute, when such generality is not deceptively employed to conceal incongruous provisions which are unrelated to the general subject of the Act. Whitney v. Hillsborough County, supra; State v. Sullivan, 99 Fla. 1070, 128 So. 478; State v. Bryan, 50 Fla. 293, 39 So. 829; State v. Bethea, 61 Fla. 60, 55 So. 550; Smith v. Chase, 91 Fla. 1044, 109 So. 94.
The title need not be an index to the body of the Act. In re DeWoody, 94 Fla. 96, 113 So. 677; Butler v. Perry, 67 Fla. 405, 66 So. 150.
The Court was justified in not considering this question in its original opinion, because it was not presented by the "question involved" as stated in the briefs of either the appellants or the appellees. However, it was discussed to some extent by appellees in their brief, and in view of the importance of the question, we have deemed it advisable to discuss it on this petition for rehearing. However, we consider the question thus presented so free from doubt, and Section 5 so clearly within the subject expressed in the title of the Act, that it is not necessary to grant a rehearing on this point, nor any of the other points raised by this petition for rehearing.
ELLIS, C.J., and WHITFIELD, TERRELL, BUFORD and CHAPMAN, J.J., concur.
"Vehicles used by any person for the sale and delivery of tangible personal property at wholesale from his established place of business on which a license is paid, shall not be construed to be separate places of business and no license may be levied on such vehicles or the operator thereof as salesmen or otherwise, by the State or any County or Municipality, any other law to the contrary notwithstanding."
"Sec. 115. LICENSES. — The City Commission is authorized to levy and impose license taxes by ordinance, for the purpose of regulation and revenue, upon all occupations, and upon any and all privileges and to create and fix the amounts to be paid; to provide for the collection of the same, and to provide penalties for failure or refusal to pay such license taxes. All such license taxes so imposed shall constitute a legal indebtedness to the City, which may be recovered in any Court of competent jurisdiction and no property of such debtor shall be exempt from forced sale, after due process of law, for such indebtedness. The City Commission may, by ordinance, provide for licensing, the keeping of dogs, and for the destruction of dogs, when the owner or keeper thereof shall not comply with the regulations prescribed by ordinance in effect thereto, and for the punishment of persons violating the city ordinance upon this subject.
"Sec. 116. PERIOD COVERED FOR LICENSES. — Licenses shall be issued for the periods, and be transferable as provided by the General Laws for State License. The agent or agents of non-resident proprietors shall be severally responsible for carrying on business in like manner as if they were proprietors. The fact that any person, firm or corporation reporting himself or itself as engaged in any business, calling or profession or occupation for the transaction of which a license is required, or that person exhibiting a sign or advertisement indicating engagement in such business calling or profession or occupation, shall be conclusive evidence of the liability of such person, firm or corporation to pay a license."
"We fully approve of this holding. We would also call attention to the fact that Chapter 6924 contains no repealing clause. Unless, then, Chapter 6924 and Section 1 of Chapter 6087 of the Acts of 1909 are so repugnant and irreconcilable as to indicate a legislative intent that the former should repeal pro tanto or modify the latter, both statutes must be permitted to stand. In Florida East Coast Ry: Co. v. Hazel, 43 Fla. 263, 31 South. Rep. 272, 99 Amer. St. Rep. 114, we held that `Repeals by implication are not favored, and in order that the court may declare that one statute repeals another by implication, it must appear that there is a positive repugnancy between the two, or that the last was clearly intended to prescribe the only rule which should govern the case provided for, or that it revises the subject-matter of the former.' See also State v. County of Gadsden, 63 Fla. 620, 58 South. Rep. 232. In Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 915, we held that, `Where there are valid local or special laws relating to the powers and government of particular municipalities that are in conflict with the general statutory law, such local or special laws prevail.' Under these authorities, we must hold that Section 1 of Chapter 6087 of the Acts of 1909 has not been modified or repealed by Chapter 6924 of the Acts of 1915."
It appears that every question raised as to the repeal of the charter provisions of the City of Haines City as stated in the majority opinion is fully answered by Sanders v. Howell, supra.
Second: This Court has cited with approval the rule expressed in Sanders v. Howell, supra, in the following cases: Stephens v. Anderson, 75 Fla. 575, 79 So. 205; State, ex rel. Young, v. Duval County, 76 Fla. 180, 79 So. 692; Ex Parte Davidson, 76 Fla. 272, 79 So. 727; State, ex rel. Triay, v. Burr, 79 Fla. 290, 84 So. 61; City of St. Petersburg v. Pinellas Power Co., 87 Fla. 315, 100 So. 509; City of Apalachicola v. State, 93 Fla. 921, 112 So. 618; Abell v. Town of Boynton, 95 Fla. 984, 117 So. 507; West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361; State v. City of Miami, 101 Fla. 292, 134 So. 608; City of Lake Alfred v. Lawless, 102 Fla. 84, 135 So. 895; Flamingo Park Warehouse Co. v. Solberg, 113 Fla. 45, 151 So. 281; Critchlow v. Maryland Casualty Co., 116 Fla. 226, 156 So. 440; Broward v. Garrison Investment Corporation, 121 Fla. 45, 163 So. 212; State, ex rel. Muldoon, v. McCarthy, 112 Fla. 519, 165 So. 700; Langston v. Lundsford, 122 Fla. 813, 165 So. 898; Scott v. Stone, 129 Fla. 784, 176 So. 852.
The majority opinion violates the doctrine of stare decisis.
Third: In the case of State v. Sanders, 79 Fla. 835, 85 So. 333, this Court considered and had before it the existence or non-existence of a general repealing clause. It held that if the general law does not in some express terms repeal or supersede the local law, the local law will prevail, and this rule should be applied to the case at bar. It cannot strike down a statute by implication as is attempted here.
Fourth: In Langston v. Lunsford, 122 Fla. 813, 165 So. 898, based on Chapter 16774, Acts of 1935, there is contained a general repealing clause, whereas Chapter 18011, Acts of 1937, which seeks to strike the taxing authority of the City of Haines City, contained no general repealing clause. The fact that the 1937 Legislature, by Chapter 18011, failed and omitted to place therein a general repealing clause is conclusive that it was not the intention of the Legislature to repeal Chapter 12790, Laws of 1927, charter of Haines City upon which the ordinance in question is predicated.
Fifth: In City of Orlando v. Gill, 128 Fla. 139, 171 So. 224, the general law controlled the subject of licensing pool halls and fixed the amount to be collected in the way of taxes for: (a) State; (b) county; (c) municipality; and contained the following clause, "All laws or parts of laws in conflict with or inconsistent herewith are hereby repealed and superseded. But this shall not be construed as repealing any law consistent therewith." It stands to reason that a different policy was before the Legislature with reference to "pool halls only" and the right of a municipality to tax the same. We find no such language in the repealing clause in Chapter 18011. Neither was it the intention of the Legislature to change the policy of business affecting the petitioners here and no intention is clear to deprive municipalities of this revenue.
We are forced to recognize the previous ruling of this Court in Sanders v. Howell, supra. The case of City of Orlando v. Gill has no bearing upon the case at bar. The case of Stewart v. DeLand-Lake Helen Special R. B. Dist., 71 Fla. 158, 71 So. 52, has no application to the principle of law involved in the case at bar, except fixing rules controlling a court in making statutory construction.
Sixth: This Court has held in a number of cases in testing the validity of, as well as in construing a statute, resort may be had if necessary to the history of the legislation, to the public history of the times in which it was passed, and it may be compared with cognate laws in order to determine its purpose, meaning and effect as an aid in determining its validity. See Sheip v. Amos, 100 Fla. 863, 130 So. 699; State, ex rel. Davis, v. City of Clearwater, 106 Fla. 761, 139 So. 377. This Court can take judicial notice of common knowledge prevalent in Florida previous to and at the time of the passage of Chapter 18011 by the 1937 Legislature. We find many of the municipalities of Florida financially embarrassed. In some instances municipalities were heavily involved with high rates of interest. Many were financially unable to pay interest on bands or to extend the time of payment. Taxpayers of many of the cities and towns knew it was impossible to pay the heavy interest rate and declined to pay taxes. It was difficult to meet the current expenses of operating the towns and cities. Payrolls had not been met in many months, other items were in default and it was difficult to maintain the costs of government. The municipalities of the State organized and were before the 1937 Legislature begging for financial assistance at the very time of the passage of Chapter 18011. They represented that their bonds were in default, the taxpayers were on a strike, payrolls past due, current bill unpaid, suits being filed, and heavy costs of municipal government to meet. They asked the 1937 Legislature for financial aid from the gasoline tax, pointing out that the cities and towns in many instances formed connecting links on the State highway system of Florida; that if help was extended bonds could be stabilized, payrolls met, current debts liquidated, the taxpayers would respond and that this policy would assist Florida and the nation in their financial rehabilitation program. The municipalities of Florida requested the 1937 Legislature to see that right, fairness and justice should prevail. It is difficult to conceive under these facts and circumstances that the limited resources of cities and towns should be further reduced by Chapter 18011. The members of the 1937 Legislature did not intend that the cities and towns of Florida should be deprived of this revenue.
"All courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay."
If justice and right are to be administered in this cause the revenues of the City of Haines City shall continue in the future as in the past and the decree appealed from should be affirmed.

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