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Flynn v. Kucharski

DECEMBER 19, 1973.

THOMAS FLYNN ET AL., PLAINTIFFS,

v.

EDMUND J. KUCHARSKI, COUNTY TREASURER, ET AL., OBJECTORS-APPELLANTS — (WILLIAM J. HARTE ET AL., PETITIONERS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

This is an appeal from a trial judge's award of attorneys' fees of $750,000 to William J. Harte and Kevin M. Forde, who successfully represented plaintiffs in a class action for declaratory judgment, an accounting, and other relief brought by plaintiffs as residents and taxpayers of the City of Chicago and Cook County, Illinois. The factual background of this litigation can be summarized as follows:

Plaintiffs challenged the constitutionality of the method of tax collection and distribution in effect in Illinois and Cook County as fixed by statute. (Ill. Rev. Stat. 1967, ch. 53, par. 55.6) Taxpayers who owned property within the City of Chicago paid their taxes to the County Collector who was authorized to deduct a commission of 1 1/2 per cent on all monies collected, except that the maximum commission on money collected on behalf of "incorporated cities, villages and other municipalities" was limited to one per cent. Three-fourths of one per cent was further allowed as commission on funds paid over to him by township collectors. (Ill. Rev. Stat. 1967, ch. 53, par. 39.) These commissions were deposited in the general corporate fund of Cook County by the County Collector.

Taxpayers who owned property within Cook County but outside of the City of Chicago had the option of paying their taxes to the County Collector under the scheme outlined above or they were allowed to pay their taxes to the township collector of the township in which their property was located. The township collector was allowed a commission of 2 per cent on all money collected by him. The township collector could retain a specified amount as compensation and for expenses if authorized. The section then provided:

"After payment of the foregoing amounts to the town or district collector as compensation for his services, the excess of the commission allowed shall be paid into the town treasury, except that in townships comprised of only one village or city, the corporate limits of which are coextensive with the corporate limits of the township, the excess shall be paid into the village or city treasury." Ill. Rev. Stat. 1967, ch. 53, par. 55.6.

Plaintiffs' objection to this section was that the commissions deducted by the County Collector were deposited in the general corporate fund of Cook County, for the use and benefit of all the residents of Cook County. In contrast to this, the excess of the 2 per cent commission, after the salary and expenses of the township collector were deducted, was given to the particular township for local, and not county-wide usage. They contended that this procedure violated the uniformity provisions of the Illinois Constitution (Art. IX, sections 9 and 10), the due process clause of the Illinois Constitution, and the due process and equal protection clauses of the United States Constitution.

Plaintiffs also objected to the commission system of both the Cook County and township collectors. They argued that these commissions greatly exceeded the cost of the collection of the taxes in question.

The circuit court held this section (Ill. Rev. Stat. 1967, ch. 53, par. 55.6) to be unconstitutional as it related to the commissions paid to township collectors and ordered that all these taxes in Cook County thereafter be collected by the Cook County Collector. Defendants, the County Collector of Cook County and thirty township collectors in Cook County, appealed directly to the Illinois Supreme Court, which affirmed the order of the circuit court and remanded the cause for further proceedings. Flynn v. Kucharski, 45 Ill.2d 211, 258 N.E. 329.

The Circuit Court, following this remand, ordered that all funds which were in the possession or control of the townships on December 15, 1969 (the date of the original decree) be turned over to the designated trustee, American National Bank & Trust Company. (Funds actually expended prior to December 15, 1969, did not have to be paid to the trustee.) The trustee was then to turn this fund over to the County Collector of Cook County to be deposited in the corporate fund of Cook County after the court had an opportunity to entertain petitions for fees and costs and had deducted these from the fund. The court did not consider the question of reasonableness of the rate of commission charged by the Cook County Collector. The defendants appealed and the plaintiffs cross-appealed this order which was subsequently affirmed in part but reversed and remanded to the circuit court for consideration of the question as to the reasonableness of the rate of commission charged. (Flynn v. Kucharski, 49 Ill.2d 7, 273 N.E.2d 3.) A third appeal was taken after a denial of a motion by certain of the township collectors to set aside the order of the Circuit Court. This denial was upheld by the Illinois Supreme Court. Flynn v. Kucharski, 53 Ill.2d 88, 290 N.E.2d 1.

Petitioners filed their petition for attorneys' fees on March 22, 1972. Objections to this petition for fees were filed, followed by objector's motion to dismiss the petition. The motion was denied by the judge and a hearing on the petition began on November 17, 1972. At the end of the hearing, attorneys' fees of $750,000 were awarded out of the fund which then totaled more than $4,500,000.

Objector appeals this award, contending that:

"(1) The character of the fund is such that attorneys' fees may not be awarded from it; and

(2) Even if an award of attorneys' fees was proper, the amount set by the trial judge was excessive."

Objector first contends that no attorneys' fees may be paid to petitioners from the fund held by trustee. He argues that:

"Where as here, the fund is composed entirely of collected tax monies, and where, as here, the fund is not to be distributed to the class but rather to a taxing body, then no ...


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