APPEAL from the Circuit Court of Peoria County; the Hon. JOHN
A. WHITNEY, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 3, 1972.
The plaintiff, Peoria Housing Authority, brought a forcible entry and detainer action against the defendant, Norma Sanders, for possession of premises occupied by the defendant. The action was based upon failure to pay rent. The defendant filed an answer, affirmative defense, and a counterclaim in which it was alleged that the plaintiff's rental policy was unconstitutional and that damages based upon a retroactive recovery of rental payments made in compliance with the policy should be awarded. Subsequently the defendant withdrew her answer and affirmative defenses. The trial court granted possession of the rented premises to the plaintiff and ruled that the counterclaim did not state a cause of action and was further not germane to the distinctive purpose of the proceedings. It was from this order of the circuit court of Peoria County that the defendant appeals.
In this appeal the defendant has raised the following constitutional issues: (1) that the plaintiff's statement of policy on modified fixed rents and income limits deprives the defendant of "life, liberty or property" without due process of law in violation of the fourteenth amendment to the constitution of the United States (U.S. Const., amend. XIV, Sec. 1) and section 2 of article II of the constitution of Illinois 1870 (Ill. Const. (1970), art. II, sec. 2); (2) that said statement of policy results in an invidious classification of the Authority's tenants as proscribed by the equal protection clause of the fourteenth amendment to the constitution of the United States (U.S. Const., amend. XIV, sec. 1).
The defendant further argues that the plaintiff's statement of policy on modified fixed rents and income limits contravenes the letter and spirit of the Illinois Housing Authorities Act (Ill. Rev. Stat. 1969, ch. 67 1/2, par. 1 et seq.). The defendant also argues that if it is held that the counterclaim is not germane to the principal action under the Illinois Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 1, et seq.) then said Forcible Entry and Detainer Act has denied the defendant procedural due process of law.
Before we consider the constitutional issues raised by the defendant or consider the letter and spirit of the Illinois Housing Authorities Act we must first determine whether these issues are germane to the plaintiff's principal action for possession.
Under the Illinois Civil Practice Act a defendant is generally empowered and encouraged to join in a principal action any claims or demands which he may have against the plaintiff.
"Subject to rules, any demand by one or more defendants against one or more plaintiffs, or against one or more co-defendants, whether in the nature of set-off, recoupment, cross-bill in equity, cross demand or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross demand in any action, and when so pleaded shall be called a counterclaim." Ch. 110, Sec. 38 (1), Ill. Rev. Stat.
These apparent liberal provisions regarding joinder of actions are, however, limited with respect to a number of "extraordinary" proceedings which carry with them their own procedural restrictions which govern the filing of counterclaims. One of these extraordinary proceedings so limited is the Forcible Entry and Detainer Act.
"Section 1. Scope of Act.) The provisions of this Act apply to all civil proceedings, both at law and in equity, except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo warrantor, replevin, foreclosure of mortgages or other proceedings in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes. As to all matters not regulated by statute or rule of court, the practice at common law and in equity prevails." Ill. Rev. Stat. 1969, ch. 110, par. 1.
As a result of the foregoing language contained in the opening section of our Civil Practice Act we must direct our attention to the provisions contained in the separate statute governing procedure in actions of forcible entry and detainer.
"The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due." Ill. Rev. Stat., 1969, ch. 57, par. 5.
• 1 It should be noted that in the case before us on review the only relief sought by the plaintiff in the forcible entry and detainer action was the recovery of possession of the premises which had been leased to the defendant. The Forcible Entry and Detainer Act has been in existence in our state for many years and the general rule of law is well established that the action involves solely the question of the right to restitution of premises of which one is unjustly deprived. See Woodbury v. Ryel, 128 Ill. App. 459; Truman v. Rodesch, 168 Ill. App. 304; Chicago Ry. Equipment Co. v. Wilson, 250 Ill. App. 231; Van Winkle v. Weston, 276 Ill. App. 66; Sauvage v. Oscar W. Hedstrom Corp., 322 Ill. App. 427, 54 N.E.2d 725; Burton v. Firebaugh, 344 Ill. App. 548, 101 N.E.2d 616.
• 2, 3 The defendant contends that nothing could be more "germane" to an action in forcible entry and detainer than a determination as to whether or not the standard used by the plaintiff in determining its rentals was valid. We find the law to be clear in Illinois that the defendant cannot withhold her rental payments as determined under a lease and hope to procedurally use them as an offset in an action for possession. Excess rents, if any, paid by a tenant could not be considered as a defense in a landlord's forcible detainer action to recover possession of her apartment after obtaining the requisite certificate from the area rent director. (Burton v. Firebaugh, supra.) Neither does the acceptance of late rental payments by the plaintiff present an issue for review. In the case before us this point was set forth in the defendant's affirmative defense which was later voluntarily ...