Board of Education of Community Unit School District 201-U v. Pomeroy

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Will County denying a motion to vacate a previous order of the said circuit court granting a motion to dismiss the complaint. An alternative request, as to two counts of the amended complaint, for leave to amend, was granted, and such order is not appealed from. Plaintiff comes to this court pursuant to Supreme Court Rule 304(a) for the reason that the trial court has made an express written finding that there was no just reason for delaying enforcement or appeal.

The action was instituted by the Board of Education of Community Unit School District 201-U of Will County, Illinois, in its individual capacity and also sought relief as a representative of a class of Boards of Education of Will County. No authorization is stated or shown as to any boards of education, other than the plaintiff specified in the action. The action was instituted against Oren Pomeroy, supervisor of assessments of Will County, and as against Roy Hassert, Bernard J. Bannon and Daniel T. Lambert, as members of the Board of Review of Will County, and also as against Kent Bosworth, county treasurer and ex-officio county collector of Will County. The action is brought with respect to certain alleged practices of the defendants in the assessment of property, collection of taxes and distribution of tax revenues, and for the recovery of tax revenues alleged to be wrongfully withheld, and additionally for interest and statutory penalties.

As we have noted, pursuant to defendants’ motion to dismiss, the trial court, on February 26, 1975, dismissed plaintiff’s complaint. Plaintiff subsequently filed a motion to vacate the order of February 26, 1975, and requested leave to file an amended complaint as to counts III and IV. On April 23, 1976, the trial court denied plaintiff s motion to vacate the prior order of dismissal of February 26, 1975, but granted plaintiff leave to file amendments to counts III and IV of their complaint. The trial court entered a finding in accordance with Rule 304(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 304), that there was no just reason for delaying enforcement or appeal of the order appealed from.

It appears that plaintiff Board of Education derives a substantial portion of its operating revenue from personal and property taxes extended and collected upon property within its school district. Although plaintiff has the responsibility of establishing its operating budget and of levying certain taxes, various county officials referred to have the responsibility of assessing the property to be taxed, of extending the taxes, of collecting the tax moneys and distributing the tax revenues to local boards of education, under the provisions of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 482 et seq.).

The complaint filed by plaintiff on December 12, 1973, consisted of four counts. Counts I and II of the complaint alleged that the defendants either unreasonably delayed or failed to perform their statutory duties in the assessment of property and the collection of taxes. Plaintiff alleged that in 1971 and 1972, defendant Oren Pomeroy, supervisor of assessments, did not make assessments as required by section 95 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 576) and did not return the assessment books to the Board of Review by the third Monday of June as required by section 100 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 581). Plaintiff also alleged that the Board of Review of Will County, consisting of defendants Roy Hassert, Bernard J. Bannon and Daniel T. Lambert, did not meet on or before the third Monday in June 1971, nor complete its work and adjourn prior to January 20, 1972, and that the Board of Review did not meet on or before the third Monday in June 1972, nor complete its work and adjourn prior to December 31, 1972, all as required by section 107 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 588). Plaintiff further alleged that Kent Bosworth, county collector, did not prepare and mail tax bills 30 days prior to the first delinquent date (June 1, 1973) (nor prior to the second delinquent date (September 1, 1973), as required by sections 190 and 224 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, pars. 671, 705)). Plaintiff also alleged that defendants joint and several delays had forced plaintiff, and other school boards similarly situated, to borrow money to keep their school districts solvent, and to pay interest on that borrowed money.

The complaint also alleged that plaintiff fairly represents the class of Boards of Education injured by defendants’ conduct, and stated that plaintiff was bringing this action on behalf of itself and all members of the class consisting of all other school districts within Will County. On the basis of such allegation, in count I of the complaint, plaintiff then prayed that the actions of defendants be decreed to be in violation of the statutes and that the court issue a mandatory injunction compelling defendants and their successors (in the future) to proceed according to statutory provisions in forthcoming years, and that the court grant such other relief as it deemed necessary. Count II, labeled by plaintiff “In Law,” contained the same basic allegations as count I, but added the allegation that defendants’ delay has caused the plaintiff class to pay legal interest through December 7, 1973, in the amount of $250,000, and prayed that defendants be compelled to pay such sum to plaintiff as damages.

Counts III and IV related solely to defendant Bosworth, county collector. It was alleged that Bosworth was authorized to withhold from distribution the amounts of taxes paid under protest or 1% of the total taxes collected, whichever is less, by section 194 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 675), and that defendant Bosworth in 1971 and 1972 withheld from distribution to plaintiff and other school districts 1% of the taxes collected or the amount paid under protest, whichever was greater. Count III prayed that Bosworth’s action be declared to be in violation of the statute and that Bosworth and his successors be enjoined from this practice and also asked for further relief as this court deemed necessary. Count IV, at law, requested restitution of the amounts wrongfully withheld, together with damages authorized by section 17—15 of The School Code (Ill. Rev. Stat. 1975, ch. 12 par. 17—15). All four counts, including those labeled “legal” and “equity” were framed as representative suits or class action counts seeking relief for both the board of education named in the complaint and all others similarly situated. The complaint in this cause does not allege that defendants intentionally violated any of the statutory provisions, but only asserts that the particular functions described were not completed by the certain dates specified.

Defendants filed a motion to dismiss plaintiff’s complaint setting up various grounds as a basis therefor. The trial court, in its order dated February 26, 1975, found that plaintiff could not maintain its action as a class action or representative suit and that, also, the complaint, with respect to plaintiff individually, failed to state a cause of action. Plaintiff subsequently filed a motion to vacate the February 26 order and requested leave to file an amended complaint as to counts III and IV. On April 23, 1976, the trial court denied plaintiff’s motion to vacate but granted plaintiff leave to amend counts III and IV of its complaint.

As a preliminary matter, we should note defendants’ argument that since the motion to vacate which was requested prayed in the alternative for leave to file an amended complaint as to counts III and IV, which request was granted, and since plaintiff has filed an amended complaint on counts III and IV thereafter, plaintiff has acquiesced in the trial court’s ruling and may not now proceed with this appeal. As support for this position, defendants cite People ex rel. Valentine v. Biggs (1st Dist. 1941), 312 Ill. App. 199, 207, 38 N.E.2d 366, wherein the court stated:

“ ‘As a general rule, if a party, after an order or judgment upon demurrer to the pleadings is given against him, under leave of court, amends the pleading demurred to, * * * he acquiesces in the judgment or order upon the demurrer, and will not be permitted to appeal therefrom, or, unless an exception is duly saved, to assign it for error in the appellate court * * *.’”

We believe, however, that Supreme Court Rule 304(a) to which we have referred, which provides for taking of an appeal where there are multiple parties or claims and where there is a final judgment as to one or more but fewer than all of the parties or claims, if the trial court makes an express finding that there is no just reason for delaying enforcement or appeal, an appeal may be sanctioned at such time. While we may entertain some doubt as to whether certain of the issues considered on appeal were designed to be covered by the Supreme Court rule to which we refer, we nevertheless have concluded that we will consider plaintiffs appeal as being properly before this court.

We shall first consider whether the trial court ruled correctly in dismissing plaintiffs action as a representative or class action. In this connection we should refer to the order of the trial court of February 26, 1975, where the court says:

“At the outset it appears to the court that the class actions in Equity, as alleged in Counts I and III, and in Law, as alleged in Counts II and IV, cannot be maintained. The Illinois law governing class or representative suits is all case law. The class suit is an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impractical. [Citations.]”

The trial court then went on to refer to the case of Reardon v. Ford Motor Co. (3d Dist. 1972), 7 Ill. App. 3d 338, 341, 287 N.E.2d 519. In the Reardon case, this court, in its opinion, states:

“The mere fact that there are numerous aggrieved parties all of whom have similar claims against a defendant is not alone sufficient to support a class action in our state. See Fetherston v. National Republic Bancorp., 280 Ill. App. 151; Michelsen v. Penney, 10 F. Supp. 537.

Representation by a few on behalf of many as a device to conclude the rights of the absent parties must be regarded by the courts as conduct requiring close and vigilant scrutiny, and as a technique which should be resorted to only when complete justice to all interested parties will follow from its application. Each situation must be carefully analyzed and considered from the viewpoint of the entire class, and general definitions as to the right of the named party to bring the action must give way to particular circumstances. Where the right to proceed is doubtful, permission will be generally refused. See Fox, Representative Actions and Proceedings, 1954 U. Ill. L. Forum, page 97.

It is to be noted that the matter of ‘class or representative actions’ in Illinois is governed entirely by case law so we must examine and analyze the situation presented in the instant case in the light of the authoritative decisions rendered by the reviewing courts of our State.” 7 Ill. App. 3d 338, 341.

In the cause before us, there are only 46 separate school districts in Will County. This is not so large a number as to render separate litigation in the courts of the county impossible or impractical. All such districts have convenient access to the court. It appears, also, that the claims would be based on numerous separate and distinct transactions (as to payments, assessments, and protests). We conclude that maintenance of a representative suit under the facts is not mandated. The trial court, in the exercise of its discretion, has determined that a representative suit should not be sanctioned. We see no basis for reversing this determination of the trial court in the instant action.

We should also observe that there is no authority for an action at law (rather than equity) by a plaintiff in a representative capacity. (See Ill. L. & Prac. Parties § 13 (1957); Arthur Rubloff & Co. v. Leaf (1st Dist. 1952), 347 Ill. App. 191, 106 N.E.2d 735.) In the action instituted as a class action by plaintiff, a mandatory injunction is sought, compelling defendants (and their successors in the future) to proceed in accordance with certain statutes regarding tax assessment, billing, collection and distribution proceedings (including protested taxes). In the analysis of issues in this case, we should note that the statutory provisions regarding adjournment of the Board of Review and other procedures applying to defendants are basically directory (Ill. Rev. Stat. 1975, ch. 120, par. 581, 671; Farmers & Merchants Bank v. City of Vandalia (4th Dist. 1894), 57 Ill. App. 681; Eurigh v. People ex rel. Miller (1875), 79 Ill. 214; Barkley v. Dale (1905), 213 Ill. 614). That they are directory is clearly supported by the legislative enactment of sections 316 and 317 of the Revenue Act (Ill. Rev. Stat. 1975, ch. 120, pars. 797, 798), where it is provided that failure to deliver collectors’ books on time does not affect the validity of the assessment. The courts and the legislature have thus both recognized that exact compliance with statutory dates might become impossible and would work serious hardships on both county officers and the taxpayers. That the statutory provisions are directory is also clear from a consideration of the circumstance which would apply to Bosworth, since it is alleged he did not mail the statements 30 days prior to the respective final days for payment of installments. It could hardly be maintained that Bosworth would be required to mail such statements if he did not even have possession of the books from the Board of Review, if that was the case (as implied in the complaint).

The granting of a mandatory injunction is also discretionary with the court. It is an extraordinary remedy, in any event, and the complaint must allege, specifically, material facts which would justify such action. The action contemplated would require the courts to supervise assessment of property by public officials, which would be contrary to the precedent outlined in Bistor v. Board of Assessors (1931), 346 Ill. 362. Mandatory injunctions are looked upon with disfavor by our courts and if relief is available through mandamus, as it is in the instant case, the plaintiff must pursue that remedy. In such case, it is deemed that equity has no jurisdiction. (Lyle v. City of Chicago (1934), 357 Ill. 41.) We should also observe that mandatory injunctions are not granted to correct past wrongs and would not be issued to prevent future wrongs without specific allegations that the wrongs will be committed in the future (which was not done in the complaint). Obviously, plaintiffs remedy is through mandamus. A mandamus action is one which would command the persons ordered in their official capacity to carry out their duties as specified by statute and to correct failure to discharge statutory duties. Lyle v. City of Chicago (1934), 357 Ill. 41.

We should also make note of the fact that the complaint alleges that defendant Bosworth wrongfully withheld certain tax moneys from distribution to plaintiff and other school districts. Section 194 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 675) provided:

“The collector may withhold from distribution the amounts paid under protest or 1% of the total taxes collected, whichever is less.”

As a remedial measure (if the collector fails in his duty as to distribution), in section 17—15 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 17—15), it is provided that:

“If any collector fails to pay the taxes or any part thereof, the school treasurer or other authorized person may proceed against him and his sureties in a civil action upon his official bond in any court of competent jurisdiction. The collector so in default shall pay 12% of the amount due to be assessed as damages, which shall be included in the judgment rendered against him. If he can show that any part of the taxes could not be collected by law, he shall not be liable for such taxes until he has collected, or may be able to collect them.”

This procedure, which furnishes an adequate remedy, normally was available to the plaintiff and other school districts for defaults alleged as to defendant Bosworth and contains a specific damage clause sufficient to protect plaintiff and other school districts (12% of defaulted amount).

The trial court also cited, in support of the determination to grant the motion to dismiss, the fact that under section 2—202 of the Local Government and Governmental Employees Tort Immunity Act it is specifically provided that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.” The trial court concluded that the Local Government and Governmental Employees Tort Immunity Act clearly applies to any public employees and to any act or omission by them in the execution or enforcement of any law. (See Ill. Rev. Stat. 1975, ch. 85, par. 2—202. See also Arnolt v. City of Highland Park, 52 Ill. 2d 25, 34.) The court also pointed out there was a failure to give notice by plaintiff in accordance with the provisions of that Act prior to the filing of the instant action. The trial court properly concluded that to the extent that the action is based on tortious conduct, it comes within the purview of the Tort Immunity Act to which reference is made by the trial court, and lends further support to the conclusion of the trial court in this case (as to any claimed tortious conduct by the defendants).

Obviously, we are not now determining, in any respect, the propriety of amended counts now pending in the trial court to replace original counts III and IV in the complaint in this case, pursuant to order authorizing such amendment. Plaintiff has obviously acquiesced in the action of the trial court as to counts III and IV since it made a request to amend such counts, which was granted, and has, presumably, filed amended counts seeking to pursue action individually by plaintiff in the trial court.

We have determined, however, that the trial court in the instant case properly dismissed the complaint in this cause based upon plaintiffs attempt to maintain a class action or representative suit.

Some discussion has been initiated in the dissent as to public policy considerations to be given attention in determining the issues in this case. As we note from the statutes, the legislature of this State has established a public policy in providing for action by mandamus to recover for damages occasioned by delays in the distribution of tax moneys. The 12% interest penalty was established as a means of achieving this objective. This appears to be a very effective weapon in the hands of tax spending bodies and can be implemented effectively to achieve the objectives of the legislative provisions. We discern no public policy which would mandate that a trial court should abandon the normal reluctance to sanction class actions where such class actions are unnecessary, such as in the instant case, and invite a potential avalanche of precipitate actions annually, by volunteers, who might initiate class actions in all counties of this State, upon simple recitals such as are contained in the instant case. To give the blessing of the courts to such procedure is hardly consistent with the best interests of the taxpayers, the public officials, or the courts. The statutory provisions are clear and need no specific action in the form of a mandatory injunction as to procedure under the statutes. Nor does it seem consistent with the precedents to sanction injunctive relief, mandatory in character, commanding public officials (some of whom are not now in office) to adhere to the statutory provisions, which is all that is specifically requested in count I. The statute is clear, and officials who do not adhere to such provisions, render the defaulting county collector vulnerable to recovery of the defaulted amount, together with 12% interest as a penalty.

On consideration of the complaint and the record in this case, therefore, we conclude that the order of the trial court was proper and should be affirmed.

Affirmed.

SCOTT, J., concurs.