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Moseid v. Mcdonough

NOVEMBER 27, 1968.

GUNWALD MOSEID, INDIVIDUALLY AND IN A REPRESENTATIVE CAPACITY UPON BEHALF OF EACH MEMBER OF A CLASS OF PERSONS, FIRMS OR CORPORATIONS CONSISTING OF PERSONS, FIRMS OR CORPORATIONS WHO HAVE SINCE OCTOBER 1, 1963, BEEN, OR WHO MAY HEREAFTER BE: (A) NAMED AS A DEFENDANT IN A PROCEEDING IN THE CIRCUIT AND SUPERIOR COURTS OF COOK COUNTY, OR ANY DEPARTMENT OR DIVISION THEREOF; (B) REQUIRED, INDIVIDUALLY OR THROUGH AN ATTORNEY TO FILE AN APPEARANCE IN SUCH PROCEEDING; AND (C) REQUIRED TO PAY A LIBRARY FEE IMPOSED UNDER AN ACT IN RELATION TO THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF COUNTY LAW LIBRARIES APPROVED MAY 5, 1961, PLAINTIFF-APPELLANT,

v.

JOSEPH J. MCDONOUGH, AS CLERK OF THE CIRCUIT COURT OF COOK COUNTY, AND BERNARD KORZEN, AS COUNTY TREASURER OF COOK COUNTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from an order dismissing his cause of action. Suit had been filed by plaintiff individually and as representative of a class, challenging the validity of the County Law Library Act and the collection of a $1 library fee from each defendant who filed an appearance in civil cases. The cause was submitted for the trial court's decision on the pleadings and stipulations of fact.

On May 5, 1961, the statute in question was enacted, relating to the establishment, maintenance, and operation of County law libraries. As amended in 1963, it applied to Cook County. Ill Rev Stats (1963), c 81, § 81. Thereafter, the Chairman of the County Board of Cook County duly notified the Clerks of the Circuit and Superior Courts of Cook County that the County Board had acted under the provisions of the statute to establish and maintain a law library. The clerks of the courts of record of Cook County then began to impose a County law library fee.

Beginning on or about October 1, 1963, and until January 1, 1964, the Clerks of the Circuit and Superior Courts of Cook County collected a library fee of $1 upon the filing of appearances by each defendant in all civil proceedings, notwithstanding the fact that a like fee had been paid in each instance by the plaintiff. On January 1, 1964, by amendment of the Judicial Article of the Illinois Constitution, the Circuit Court became the sole trial court in Cook County, and, since that date, all such library fees have been collected by the Clerk of the Circuit Court.

On July 21, 1964, a suit was filed against Gunwald Moseid, plaintiff in the instant case. Upon filing that case, the plaintiff therein paid to the clerk a $1 County library fee. Thereafter, the plaintiff here, Moseid, attempted to file his appearance as defendant in that case. In addition to the usual $5 appearance fee, the clerk demanded of him a $1 County law library fee, which was paid under protest.

As of August 31, 1964, the library fund totaled $208,888, representing library fee payments collected by the Clerks of the Superior and Circuit Courts of Cook County from both plaintiffs and defendants. A temporary injunction was issued in this case, pursuant to which the library fees collected from defendants have been segregated from those fees collected from plaintiffs, and defendants in this case were directed to hold the fees collected from defendants subject to further order of court.

On the merits of the case, the trial court, basing its decision on the complaint, answer, and stipulations of fact, found for the defendants and entered an order accordingly, including the dissolution of the temporary injunction. On appeal, plaintiff claims:

(1) The proceeding was properly filed as a class action;

(2) The library fees were collected before a library was established by the County Board within the meaning of the statute;

(3) The statutory authorization of the collection of a library fee from defendants is unconstitutional as requiring the purchase of justice;

(4) The statute does not authorize collection of the library fee from defendants; and, finally,

(5) Litigation defendants, as represented by plaintiff herein, are entitled to refund of the library fees which they have paid.

(1) Turning, first, to the issue of whether this is a proper class action, the test to be applied is the existence of a community of interest in the subject matter and a community of interest in the remedy among all who make up the purported class. Cohon v. Oscar L. Paris Co., 17 Ill. App.2d 21, 149 N.E.2d 472; Johnson v. Halpin, 413 Ill. 257, 108 N.E.2d 429; Harrison Sheet Steel Co. v. Lyons, 15 Ill.2d 532, 155 N.E.2d 595; Smyth v. Kaspar American State Bank, 9 Ill.2d 27, 136 N.E.2d 796; Flanagan v. City of Chicago, 311 Ill. App. 135, 35 N.E.2d 545. Factors to be considered in applying this test are: whether the claims of all members of the class share a common question of law and fact, such as the existence of a common fund from which relief can be given (Kimbrough v. Parker, 344 Ill. App. 483, 486, 101 N.E.2d 617; Flanagan v. City of Chicago, 311 Ill. App. 135, 160, 35 N.E.2d 545); whether the causes of action of the members of the class arise from the same transaction (Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 154, 39 N.E.2d 995; Material Service Corp. v. McKibbin, 380 Ill. 226, 236, 43 N.E.2d 939); whether one party can adequately represent the rights and interests of all other members of the purported class (Newberry Library v. Board of Education, 387 Ill. 85, 90, 55 N.E.2d ...


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