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Flynn v. Kucharski

OPINION FILED OCTOBER 17, 1972.

THOMAS M. FLYNN ET AL.

v.

EDMUND KUCHARSKI, COUNTY COLLECTOR, ET AL., APPELLEES (ROY LARSEN, APPELLANT.) — THE PEOPLE EX REL. EARL SCHAEFER ET AL., APPELLANTS,

v.

EDWARD J. BARRETT, COUNTY CLERK, APPELLEE.



No. 45271. APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. No. 45272. APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 29, 1972.

In this, the third appeal in this litigation, the appellants, who are the township collectors in 29 townships in Cook County, appeal from the judgment of the circuit court of Cook County which denied a motion to dissolve, and continued in force an injunction enjoining them from collecting real and personal property taxes within their townships, and from the judgment dismissing their petition for a writ of mandamus directing the county clerk of Cook County to deliver to them tax bills and records allegedly essential to the performance of their statutory duties as township collectors.

In the first appeal (Flynn v. Kucharski, 45 Ill.2d 211), this court affirmed the judgment of the circuit court of Cook County which held unconstitutional section 36.6 of the Fees and Salaries Act and directed that "all property taxes in Cook County shall hereafter be collected by the Cook County Collector until further order of this court," and remanded the cause for further proceedings. In the second appeal (Flynn v. Kucharski, 49 Ill.2d 7), we held that although the township collectors are de jure officers, the lack of funds from which their salaries and expenses could be paid resulted in a "practical inability" to act, and the county collector, therefore, was the proper official to assume the burden of the collection of taxes.

Following the second remandment of the case, the township collectors filed a petition for a writ of mandamus in which it was alleged that they had the right to collect real and personal property taxes within their respective townships, that there was a duty imposed upon Edward J. Barrett, County Clerk of Cook County, to transmit to them tax bills and other documents pertaining to the collection of such taxes and that upon demand the defendant county clerk had refused so to do. The circuit court upon allowance of defendant Barrett's motion to dismiss the petition, entered judgment denying the relief sought and the collectors appealed.

During the pendency of the mandamus action, Roy Larsen, township collector of Leyden township, filed a motion to dissolve the injunction which enjoined the collectors from collecting taxes within their townships. The trial court denied the motion and Larsen appealed from that order.

In support of the motion to dissolve the injunction it was contended before the circuit court, and is argued on appeal, that the purpose of the injunction was to prevent the discrimination which resulted from payment of taxes to the township collectors (45 Ill.2d 211), that because section 9(a) of article VII of the constitution of 1970, effective December 1, 1971, prohibits both the county collector and the township collectors from charging a fee or commission on taxes collected, no discrimination can result from the election of the individual taxpayer to pay taxes to the county collector or the appropriate township collector, and there is therefore no reason to continue the injunction in force; that the salary and expenses of the township collector must be paid by the individual townships, and that provision therefor is authorized by sections 8 and 17 of article XIII of "An Act to revise the law in relationship to township organization." Ill. Rev. Stat. 1971, ch. 139, pars. 124 and 126.7.

The briefs reflect the disagreement of the parties as to whether the enactment of section 17 of article XIII of the Township Act provides the means for the removal of the "practical inability" of the town collectors to perform the collection function authorized by section 190 of the Revenue Act of 1939. (Ill. Rev. Stat. 1971, ch. 120, par. 671.) Upon the record before us we need not and do not reach the questions of whether a township, by action of the board of town auditors, may provide for the salary and expenses of the town collector, and assuming, arguendo, that it may, the effect of such action insofar as it affects the "practical inability" of the town collectors to function.

In consideration of the motion to dissolve the injunction the trial court was required to determine whether changes had occurred since its rendition which were of sufficient importance to warrant its dissolution. (Benson v. Isaacs, 22 Ill.2d 606.) The record reflects no action by the town board of auditors of any of the townships which purported to effect a change in the circumstances of any of the collectors, and the circuit court did not err in denying the motion to dissolve the injunction. We note, parenthetically, that in view of the argument made in the first appeal (see 45 Ill.2d at 220) concerning the dire effect on the townships of the circuit court's decision, the trial court may have concluded that no such action was imminent or even reasonably foreseeable.

In view of our holding that the circuit court did not err in denying the motion to dissolve the injunction it follows that it did not err in dismissing the petition for a writ of mandamus. Mandamus will not issue to compel an act which is of no practical benefit to the petitioner. (People ex rel. Cassidy v. Fisher, 372 Ill. 146.) The judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

MR. JUSTICE RYAN, dissenting:

I fear the decision of this court has seriously invaded an area which the constitution of this State has reserved for the legislature.

Section 5 of article X of the constitution of 1870 stated that the General Assembly shall provide by general law for township organization under which any county may organize, and that when a county adopts township organization the affairs of said county are to be transacted in such manner as the General Assembly provides. Pursuant to this authority the General Assembly adopted "An Act to revise the law in relation to township organization," approved March 4, 1874. Article VII of that act related to the election of town officers. ...


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