leases would be suffered disproportionately by wealthy property
owners or that they could establish special damages more easily
than other property owners.
Defendant argues that the existence of the special damage rule
is proof that Illinois law does not recognize any property right
held by municipal taxpayers in municipal real estate. Since
plaintiff's constitutional claims are based on his alleged
equitable property interest, defendant concludes that the
constitutional claims are without merit in light of the
non-existence of such interest.
We disagree. The theoretical basis of the special damage rule
is at present highly confused.*fn5 However, in none of the cases
cited by the defendant do we find any indication that the special
damage rule is based on the theory that the taxpayer lacks an
interest in public property. Indeed, the rationale for taxpayer
suits to enjoin the misuse of public property is based on the
taxpayers' equitable interest in public property. Jones v.
O'Connell, 266 Ill. 443, 107 N.E. 731 (1914); Fergus v. Russel,
270 Ill. 304, 110 N.E. 130 (1915).
Defendant next argues that a municipal taxpayers' suit to
enjoin the misuse of public property cannot assert deprivations
of individual taxpayer's constitutional rights as grounds for
relief. In support of this argument, defendant cites Otto v.
Somers, 332 F.2d 697 (6 Cir. 1964). In Somers, the Court of
Appeals for the Sixth Circuit applied a derivative suit analysis
to a municipal taxpayers' suit to enjoin the misuse of public
funds. The court considered the right of action to lie in the
municipal corporation, not in the taxpayers. Since the court
considered the taxpayers to be suing not in their own right but
in the interest of the municipal corporation, it concluded that
the taxpayers could not assert a deprivation of their own
constitutional rights as a ground for relief.
While the court in Somers reached an accurate conclusion in
light of its derivative suit analysis, plaintiff is not here
asserting a derivative right. Under Illinois law, the right
asserted in a taxpayers' suit is not the legal property right
held by the municipal corporation; the action rests on the
taxpayers' equitable ownership of the public property. Jones v.
O'Connell; Fergus v. Russel, supra.
Nor are we convinced by the two other cases cited by defendant
in support of its argument that individual constitutional
deprivations cannot be asserted in an action such as this. In
Owensboro Waterworks Co. v. City of Owensboro, 200 U.S. 38, 26
S.Ct. 249, 50 L.Ed. 361 (1906), the Supreme Court held that the
mere illegality under state law of an expenditure of public funds
did not create a federal constitutional question. The court
observed that the challenged expenditure, while illegal under
state law, might be consistent with federal constitutional
standards. However, the court did not hold that a taxpayer could
never challenge a disposition of public property on the ground
that his constitutional rights had been impinged by the
disposition. In Hickey v. Illinois Central R.R., 278 F.2d 529 (7
Cir. 1960), the Circuit Court of Appeals for the Seventh Circuit
held that it lacked jurisdiction over a state taxpayers' suit
because no diversity jurisdiction existed and no federal question
had been raised. Since plaintiff has here raised specific federal
constitutional issues, the Hickey case does not preclude this
court from accepting jurisdiction.
Defendant's attempt to have the standing prohibition set forth
in Frothingham v. Mellon, supra, applied to any municipal
taxpayer's assertion of federal constitutional claims is clearly
specious. The Supreme Court in Frothingham did not hold that a
taxpayer lacked standing to assert constitutional claims in any
attack on any public expenditure. Indeed, in holding that the
interest of a federal taxpayer in a specific federal expenditure
was de minimis the court took pains to recognize the more
substantial property interest of the municipal taxpayer in
municipal assets.*fn6 There is no basis for asserting that the court
considered municipal taxpayers to be precluded from attacking
municipal expenditures on constitutional grounds.
Our jurisdiction over the instant controversy is invoked by
plaintiff under 28 U.S.C. § 1331, 28 U.S.C. § 1332(a), 28 U.S.C. § 1343,
42 U.S.C. § 1983, and 42 U.S.C. § 1985. Section 1332(a)
governs jurisdiction of controversies between citizens of
different states and here controls any claims plaintiff may have
under state law. Sections 1343, 1983, and 1985 grant jurisdiction
over claims involving alleged deprivation of "civil rights".
Finally, section 1331 grants general jurisdiction over claims
involving both a federal question and an amount in controversy in
excess of $10,000. Any of plaintiff's federal claims not covered
by the "civil rights" statutes must therefore meet the
jurisdictional requirements of section 1331.
We need not deal with defendant's attack on our diversity
jurisdiction since we have previously concluded that plaintiff
lacks standing to sue under Illinois law. A study of defendant's
challenges to the different bases of our federal jurisdiction
leads us to conclude that, while we lack jurisdiction under the
"civil rights" statutes, we have jurisdiction under section 1331.
We also believe that plaintiff's complaint states a "case or
Plaintiff's claims that he was deprived of equal protection and
due process in violation of the fourteenth amendment are grounded
in his assertion, as a taxpayer, of equitable ownership of
Sanitary District property. The "civil rights" statutes do not
confer jurisdiction over action based on constitutional
deprivations of property rights. Fuller v. Volk, 351 F.2d 323 (3
Cir. 1965); Ream v. Handley, 359 F.2d 728 (7 Cir. 1966); Gray et
al. v. Morgan, 7 Cir., Dec. 22, 1966, 371 F.2d 172.
In order to confer jurisdiction under section 1331 the amount
in controversy must be in excess of $10,000. Defendant argues
that plaintiff has failed to allege facts which would support a
conclusion that plaintiff's interest exceeds $10,000. Defendant
further argues that the claims of individual taxpayers in a
taxpayer class suit cannot be aggregated for the purpose of
meeting the jurisdictional amount requirement. Contrarily,
plaintiff argues that the claims of individual members of a class
can be aggregated in a class suit.
Although an apparent contradiction exists between the
authorities cited by plaintiff and defendant, that conflict rests
on the now irrelevant distinction between so-called "true" and
"spurious" class suits. The right to aggregate claims in a class
suit depends on whether the suit is maintainable as a class
action. Those cases which allowed aggregation found that the
right asserted and the relief sought were for the welfare of the
entire body politic rather than for the individual plaintiffs.
They concluded that a "true" class action existed. Brown v.
Trousdale, 138 U.S. 389, 11 S.Ct. 308, 34 L.Ed. 987 (1891). Those
cases which disallowed aggregation found that the right asserted
was peculiar to the individual plaintiffs, and those cases were
therefore considered "spurious" class suits. Russell v. Stansell,
105 U.S. 303, 26 L.Ed. 989 (1881); Scott v. Frazier,
253 U.S. 243, 40 S.Ct. 503, 64 L.Ed. 883 (1920); See 3 Moore's Federal
Practice, par. 23.13, pp. 3482, 3483.
The recent amendments to the Federal Rules of Civil Procedure
have extinguished the tortured distinction between "true" and
"spurious" class actions.*fn7 New standards for determining whether
a class action is maintainable were established under the new
Rule 23. It is by
these new standards,*fn8 rather than under the outworn authorities
cited by the present litigants, that we must determine whether
this suit may be maintained as a class action, and consequently,
whether the claims of all members of the class may be aggregated
to meet the jurisdictional amount.
We conclude that a taxpayer suit to impose equitable restraints
on the allegedly illegal disposition of public property is
maintainable as a class action under the amended rule 23. That
this action meets the prerequisites of subsection (a) of Rule 23*fn9
seems clear. The joinder of all taxpayers whose taxes support the
operations of the Sanitary District would surely be
impracticable. The right asserted by the plaintiff, his interest
as a taxpayer in public land, presents questions of fact and law
common to all taxpayers whose taxes support the Sanitary
District, and that right is typical of the claims of the class.
Finally, we believe that the instant plaintiff possesses the
skill and integrity necessary fairly and adequately to protect
the interests of the class.
In determining what constitutes adequate representation in a
class action, the size of the class and the nature of the action
should be considered. Eisen v. Carlisle & Jacquelin, 41 F.R.D.
147 (S.D.N.Y. 1966). While the instant plaintiff alone might be
considered inadequate to represent a large class seeking varied
and complex private relief, the taxpayer suit device would lose
its utility if we held that a single taxpayer could not provide
representation for his fellow taxpayers. Without the searching
and determined scrutiny of gadfly taxpayers, often solitary in
their pursuit of justice, many excesses of governmental
administration might escape unnoticed. In order for the taxpayer
suit to remain effective as a watchdog instrument for the public
welfare, the ability of a single individual to maintain such an
action must be recognized.
The instant suit also meets one or more of the additional
necessary conditions set forth in subsection (b) of Rule 23.*fn10
prosecution of separate actions by individual members of the
instant class would create the risks set forth in parts 1(A) and
1(B) of subsection (b). Indeed, if the class action device were
not available in this case, it is difficult to conceive how
taxpayers might protect in federal courts the interests asserted
here. Without the class action device, the aggregation of claims
necessary to meet the jurisdictional amount requirement would be
so difficult that the perpetrators of illegal transactions such
as are alleged here would enjoy something akin to immunity in the
This same consideration of access to federal relief, when
coupled with our conclusion that the sole issues in the instant
case are issues common to the class, leads us to conclude that
part (3) of subsection (b) is also applicable here. The complaint
discloses no assertion of rights or facts peculiar to the instant
plaintiff. Rather, the right asserted, the taxpayers' interest in
the honest disposition of public land, is an equitable right held
in common by the taxpayers of the Sanitary District.
We also believe that plaintiff can provide the notice required
by our finding above that the instant suit can be maintained
under subsection (b)(3).*fn11 While other situations*fn12 might
require more precise notice in order to meet due process
requirements, the very nature of a taxpayer suit discloses that
individual notice to each taxpayer would render the taxpayer suit
device impotent. If individual notice were required in taxpayer
actions, only the wealthy could afford to bring taxpayer suits.
To use the language of the rule, more than "reasonable effort"
would be required to identify all identifiable members of the
class. Where, as here, several hundred thousand taxpayers are
represented, we believe that the best practicable notice would be
by publication. Given the necessity for preserving the viability
of the taxpayer action device, notice by publication would seem
sufficient to satisfy due process requirements.
Defendant's final challenge to the court's jurisdiction charges
that this action does not present a "case or controversy" within
the jurisdictional grant of Article III of the Constitution.
Defendant relies on Doremus v. Board of Education, 342 U.S. 429,
72 S.Ct. 394, 96 L.Ed. 475 (1952), which held that the
taxpayer-plaintiff had failed to allege ascertainable monetary
harm resulting from the challenged activity — bible reading in
public schools. The court therefore concluded that no justiciable
case or controversy existed. Unlike the taxpayer-plaintiff in
Doremus (who was unable to connect specific expenditures with the
challenged activity), the instant plaintiff has directly
challenged specific dispositions of municipal property and has
identified each challenged disposition with great particularity.
Since the plaintiff has here alleged specific deprivations of
property rights recognized by Illinois law, we conclude that a
justiciable case or controversy has been presented for our
In summary, we observe that plaintiff has alleged facts which,
if true, may entitle him and the other taxpayers of the
Sanitary District to relief. Since plaintiff's claims raise
substantial federal questions and since the amount in controversy
exceeds $10,000, we have jurisdiction over the action under
28 U.S.C. § 1331. Therefore, defendant's motion to dismiss for
failure to state a claim and for lack of jurisdiction must be
denied. An appropriate order will enter.