Santiago v. Kusper

Decision Date17 January 1990
Docket NumberNo. 67704,67704
Citation133 Ill.2d 318,140 Ill.Dec. 379,549 N.E.2d 1251
Parties, 140 Ill.Dec. 379 Alfredo SANTIAGO, Indiv. and as representative of a class of persons similarly situated, Appellant, v. Stanley T. KUSPER, Jr., County Clerk of Cook County, et al., Appellees.
CourtIllinois Supreme Court

Arnold M. Flamm and Matthew A. Flamm, Orlikoff & Flamm, and Harry A. Young, Jr., Neistein, Richman, Hauslinger & Young, Ltd., Chicago, for appellant.

Richard M. Daley, State's Atty., Chicago (Joan S. Cherry, Deputy State's Atty., and Mark R. Davis, Susan Condon and Catherine Quirk Delahunt, Asst. State's Attys., of counsel), for appellees.

Justice MILLER delivered the opinion of the court:

On October 16, 1986, the plaintiff, Alfredo Santiago, brought a class action suit in equity in the circuit court of Cook County against defendants Stanley T. Kusper, Jr., county clerk of Cook County (clerk), Edward J. Rosewell, county treasurer of Cook County (treasurer), and the County of Cook. Plaintiff sought, among other things, a declaratory judgment finding that defendants for several years had required payment of an unlawful tax described as "costs" from persons who paid delinquent real estate taxes, purchased real estate taxes at tax sales, or redeemed real estate subsequent to a tax sale. The complaint also sought judgment enjoining defendants from further attempting to collect these "costs" and an accounting to the class for the money improperly collected prior to the entry of the judgment. Defendants filed a motion to dismiss, claiming that plaintiff failed to state a cause of action for which equitable relief could be granted. The trial judge denied defendants' motion, as well as a subsequent motion for reconsideration. The trial judge then certified to the appellate court questions of law pursuant to Illinois Supreme Court Rule 308 (107 Ill.2d R. 308), and the appellate court granted defendants leave to appeal.

The appellate court, with one justice dissenting, reversed the trial court's order denying defendants' motion to dismiss. The appellate court held that the action did not lie in equity because the "costs" at issue are authorized by statute and that the amount assessed was appropriate. (174 Ill.App.3d 1065, 124 Ill.Dec. 656, 529 N.E.2d 637.) We allowed plaintiff's petition for leave to appeal from the appellate court's judgment pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315).

Plaintiff owns a parcel of real estate located in Cook County. He failed to pay the general real estate taxes assessed on the land in 1984. After his failure to make payment on the due date of the second installment, he received notice that he must pay the taxes due, plus accrued interest and costs, in order to avoid legal action. Upon his failure to respond to the notice, plaintiff's name was included among a list of property owners who had failed to remit their 1984 real estate taxes. The list was attached to an application for judgment and order of sale filed by the treasurer in the circuit court of Cook County on November 8, 1985. On November 22, 1985, a judgment and order of sale against those properties on the application list was entered in the circuit court.

On January 31, 1986, pursuant to the judgment, plaintiff's taxes were sold for a sum which included an assessment of $10 for "costs." Plaintiff subsequently redeemed the property from the tax sale on October 16, 1986, for a price which included the $10 charge. At that time, he filed in the clerk's office a protest against the fee. He also filed this class action in the circuit court of Cook County.

In count I of his complaint, plaintiff sought a declaration that the portion of the judgment assessed against his tax delinquent property labeled as "costs" was not authorized by any law or ordinance. He further sought to permanently enjoin defendants from collecting or attempting to collect these costs, an accounting on behalf of the class of all such costs collected in the past 10 years and a refund of the collected costs to the appropriate parties. Count II of the complaint sought relief under 42 U.S.C. § 1983 (1988) and attorney fees and costs pursuant to 42 U.S.C. § 1988 (1988).

Defendants thereafter filed a motion to dismiss, claiming that plaintiff failed to state a cause of action for which relief could be granted. In their motion, defendants contended that the suit filed did not fit within any exception to the rule barring equitable relief in tax cases. Defendants also argued that plaintiff's claim was an impermissible collateral attack on the tax judgment previously entered against him. They further urged that plaintiff's claim for a refund for taxes previously paid was barred by the voluntary payment doctrine. Defendants contended that count II should be dismissed because there existed an adequate State remedy.

On March 10, 1987, the trial court denied defendants' motion to dismiss count I and granted the motion as to count II. Count II is not involved in this appeal. Defendants then moved for reconsideration of the denial to dismiss count I, which the trial judge denied on April 13, 1987. The trial judge subsequently required that defendants place all $10 payments for costs assessed on delinquent tax sales in a separate interest-bearing fund pending final adjudication and enjoined the defendants from disbursing any sum from that fund. He also certified the cause as a class action.

Defendants thereafter filed a motion for a finding by the trial court pursuant to Illinois Supreme Court Rule 308 (107 Ill.2d R. 308) that there were substantial grounds for a difference of opinion on several threshold issues raised by defendants' motion to dismiss. On October 21, 1987, the trial court granted defendants' motion and certified the following three questions:

"(1) Whether the $10 cost challenged by the complaint filed in this case is authorized by Sections 230, 233, 235 or 253 of the Revenue Act of 1939 (Ill.Rev.Stat., Ch. 120, p 711, p 714, p 716, p 734) or by Ill.Rev.Stat., Ch. 53, p 40 or p 73, so as to deprive the circuit court of chancery jurisdiction under the rule of law established by Lakefront Realty Corporation v. Lorenz, 19 Ill.2d 415 , or Clarendon Associates v. Korzen, 56 Ill.2d 101 .

(2) Whether, if the Court holds that the $10 cost is unauthorized, the plaintiff is nevertheless precluded from bringing this action in equity by reason of the existence of an adequate remedy at law.

(3) Whether the plaintiff's claim for a refund of taxes previously paid is barred by the voluntary payment doctrine."

On appeal, the appellate court reversed the trial court's denial of defendants' motion to dismiss count I. The majority answered the first certified question of law in the affirmative by holding that the costs assessed were authorized and hence plaintiff could not bring suit in equity. The appellate court did not address the remaining certified questions. In answering the first of the certified questions, the appellate court held that defendants' right to charge certain costs is expressly granted in the Revenue Act and the Salaries and Fees Act and that defendants' exercise of that right in collecting the $10 fee was reasonable. (174 Ill.App.3d at 1067-68, 124 Ill.Dec. 656, 529 N.E.2d 637.) The appellate court supported its finding by noting that the General Assembly amended section 230 of the Revenue Act subsequent to the appellate court's previous holding in W.F. Smith & Co. v. Rosewell (1984), 123 Ill.App.3d 939, 79 Ill.Dec. 470, 463 N.E.2d 1024, which determined that the $10 charge was unauthorized. The appellate court found that the subsequent amendment was in response to the W.F. Smith & Co. decision and confirmed that the $10 charge was authorized under the original statute. The dissenting justice believed that the charge was unjustified and, adopting the reasoning in W.F. Smith & Co., would have affirmed the judgment of the trial court. 174 Ill.App.3d at 1068, 124 Ill.Dec. 656, 529 N.E.2d 637 (Jiganti, P.J., dissenting).

The question of law first certified by the trial court is whether plaintiff can avail himself of chancery jurisdiction to contest the $10 cost assessed to his tax delinquent property. We note that costs are deemed by statute as a tax under the Revenue Act of 1939. See Ill.Rev.Stat.1985, ch. 120, par. 482(11).

An action concerning the collection of taxes will arise in equity only where the tax is unauthorized by law, where the tax is levied upon exempt property, or where there exists no adequate remedy at law. (Inolex Corp. v. Rosewell (1978), 72 Ill.2d 198, 201-02, 20 Ill.Dec. 566, 380 N.E.2d 775.) Plaintiff contends that the costs assessed were unauthorized by law, availing him of chancery jurisdiction. Defendants admit that "no single statutory cost provision has ever provided for some generic 'costs' in the amount of $10.00." However, defendants point to the following four statutes which they argue in the aggregate provide them with authority to assess plaintiff the $10 fee: (1) a provision in section 3 of "An Act to provide for the fees of the sheriff, recorder and county clerk in counties of the third class," which allows a four cent fee for entering judgment (Ill.Rev.Stat.1985, ch. 53, par. 73); (2) a companion provision in section 3 of the same act which allows the assessment of five cents for each tract sold to reimburse the county for making the required list of delinquent property (Ill.Rev.Stat.1985, ch. 53, par. 73); (3) section 22 of "An Act concerning fees and salaries, and to classify the several counties of this state with reference thereto" (Fees and Salaries Act) (Ill.Rev.Stat.1985, ch. 53, par. 40), since amended, which allowed printer costs for advertising the delinquent list at the rate of 40 cents per column line; and (4) section 230 of the Revenue Act of 1939, since amended, which allowed reimbursement to the collector for the cost of the required notice to property owners prior to a tax sale. Section...

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