APPEAL from the Circuit Court of Kane County; the Hon. ERNEST
W. AKEMANN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This is an appeal by Roy Safanda from the denial, without a hearing, of his petition for attorney's fees.
On February 9, 1972, the County Board of Supervisors of Kane County adopted an ordinance which imposed a service fee upon the various county taxing bodies for the service performed by the County in assessing, extending, collecting and disbursing tax monies levied by the various taxing units within the county. Pursuant to the ordinance, the Kane County Auditor determined that $562,292 in administrative costs had been incurred by the County in the process of assessing, extending, collecting and disbursing the 1971 taxes. The County Board approved the above assessment, and the County Collector was directed to withhold various sums from the several county taxing bodies pursuant to a formula for the assessment of the service fees contained within the ordinance, and to deposit the service fee with the County Treasurer. Sixteen townships and approximately 100 taxing districts were involved and the amount of the service fee withheld ranged from a high of $94,334 from School District U-46 in Elgin Township to a low of $1 from the Hinckley Fire Protection District in Big Rock Township.
Attorney Roy Safanda first filed a mandamus action in the Supreme Court of Illinois seeking to obtain the original jurisdiction of that court. The supreme court declined to take original jurisdiction of the case and, on September 25, 1972, Safanda filed a petition for a writ of mandamus as a class action in the Circuit Court of Kane County, naming the "People of the State of Illinois on the relation of the Community Unit School District 303, individually and on behalf of all others similarly situated" as petitioner, and the Board of Supervisors of Kane County, the County of Kane, and the County Clerk, Treasurer and ex officio County Collector of Kane County as defendants. On the same date, Safanda filed a motion to segregate the funds collected pursuant to the service fee ordinance, pending further order of the court. Safanda also filed suggestions in support of his mandamus petition and his motion to segregate. The trial court granted the motion to segregate the funds and ordered such segregation until further order of the court. The court also granted defendant's motion to dismiss plaintiff's complaint, which was based upon defendant's arguments that a petition for mandamus could not be brought as a class action and that mandamus was not a proper remedy in this case.
On September 20, 1972, a complaint for declaratory judgment and injunction was filed by the law firm of Reid, Ochenschlager, Murphy and Hupp (hereinafter Reid) on behalf of School District 131, into which School District 129 was granted leave to intervene as party plaintiff. The complaint named the County of Kane, the County Board and various county officials as defendants and sought a declaration that the service fee ordinance was void and unconstitutional and that an injunction issue prohibiting the withholding of such fees. Whereas Safanda, as noted below, proceeded only on a constitutional argument, Reid argued both a constitutional argument and, in addition, an argument that the ordinance was void due to the absence of required Kane County legislative authority to enact such an ordinance.
On October 31, 1972, Safanda filed an amended complaint for declaratory judgment and an injunction as a class action on behalf of the Board of Education of Community Unit School District 303 individually and on behalf of all others similarly situated. This complaint sought a declaration that the service fee ordinance was unconstitutional, an injunction restraining the withholding of any service fee and an award of plaintiff's costs and attorney's fees. Defendants moved to dismiss the amended complaint and to strike the class action aspect of the suit. On November 13, 1972, the trial court entered an order denying the motion to dismiss and also finding, "* * * that the action should not be brought as a class action; the cause of action being not subject to such representation, but that the cause may be brought individually by Community Unit District 303 * * *." On December 6, 1972, the trial court, on motion of defendants, ordered the case filed by Safanda to be consolidated for hearing with the case filed by Reid.
Upon the death of Judge Seidel, the judge who had heard the motions filed in the Safanda case, the case was reassigned to Judge Akemann for further proceedings. The validity of the ordinance was argued in a consolidated hearing before Judge Akemann in March 8, 1973. During the argument, the following colloquy ensued between Mr. Mrkvicka, a member of the Reid firm, and the court:
"Mr. Mrkvicka: We have gone on record, I believe, and said that this suit was filed by Mr. Safanda originally as a class action.
The Court: I think that has gone by the board, so that actually, technically, there are only three parties involved as plaintiff in this case. However, the practical effect, we do consider it as applying to all of them, or we will have another 969 suits Monday morning or shortly after I make a decision."
Subsequently, in an order filed on April 6, 1973, the trial court found the ordinance unlawful since the General Assembly had not authorized the County to impose a service fee. The court further prohibited the defendants from enforcing the ordinance and from withholding any tax revenues from the plaintiffs and directed that the segregated funds be returned to the various taxing bodies from which the fees were withheld. On the same date Safanda filed a petition for attorney's fees in which he alleged that through his action all taxing bodies in Kane County have been benefited in the amount of $562,292, that the reasonable value of his services is one-third of said amount and that School District 303 had contracted to pay petitioner that percentage of the sums it would receive. It appears that $11,888 has been paid to Safanda by School District 303 pursuant to their agreement. Petitioner also served a notice of attorney's lien for fees upon the defendants, claiming a one-third interest in the common fund to be returned to the taxing bodies involved except School Districts 129 and 131, which had been represented by Reid.
In the April 6 hearing on the proposed judgment order, Safanda requested the court to make an award of fees based upon his petition. Mr. Eilert, attorney for the Kane County Treasurer, Collector, Clerk and Auditor and Mr. Oschenschlager, attorney for School Districts 129 and 131, joined in a request that the court deny the fees. Mr. Oschenschlager specifically stated that he had not joined in the request for fees on behalf of the school districts the Reid firm had represented. After Mr. Eilert stated his view that no fees were allowable in this case because the class nature of the suit had been dismissed, the following colloquy ensued:
"Mr. Safanda: Your Honor, I have never dismissed it as a class action. I have pursued it as a class action. I believe the relief for this class action or quantum meruit for services rendered I believe attorney's fees are in order.
Mr. Oschenschlager: What are you asking?
Mr. Safanda: One-third of the fees withheld from all taxing bodies other than School ...