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People Ex Rel. Carey v. Lincoln Towing Service

OPINION FILED JUNE 30, 1976.

THE PEOPLE EX REL. BERNARD CAREY, STATE'S ATTORNEY OF COOK COUNTY, ET AL., PLAINTIFFS-APPELLANTS,

v.

LINCOLN TOWING SERVICE, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

This opinion does not relate to the merits of the instant appeal in any way. It disposes of a motion which was filed in this court by defendants-appellees and which raised an issue collateral to the appeal. Plaintiffs-appellants filed objections to the motion and themselves moved, in the alternative, for a full separate briefing of the issue, owing to its importance. We allowed the motion for a full separate briefing because we agreed with plaintiffs-appellants' assessment of its importance and because, were we to have taken the contested motion with the case, the issue raised might thereby have become moot. We set a briefing schedule and the briefs were filed. They confirmed our conclusion that the issue was solely one of law, for which reason we dispensed with oral argument as having been improvidently granted and announced that we would dispose of the issue raised by the contested motion by separate opinion. This is that opinion.

The complaint which instituted this cause consisted of three counts. In Counts I and II, the plaintiff was the People of the State of Illinois on the relation of Bernard Carey, State's Attorney of Cook County, Illinois. In Count III, plaintiffs were Ayesha Rahim, Ali E. Guzeldere, and Steven Pattee, by their attorney, Bernard Carey, State's Attorney of Cook County, suing both individually and on behalf of all others similarly situated. The record contains a certification by Morgan M. Finley, Clerk of the Circuit Court of Cook County, that the complaint was filed without the payment of any filing fee, pursuant to section 14.1 of "An Act concerning fees * * *" (Ill. Rev. Stat. 1973, ch. 53, par. 31.1) (which provides, in relevant part, that "No fee provided herein shall be charged to any unit of local government or school district * * *"). It should be noted, however, that the plaintiff in Count III is not the People of the State of Illinois on the relation of the three named persons, individually and on behalf of all others similarly situated.

Examination of the complaint discloses the following:

Count I is an action in quo warrantor challenging the charter authority of the defendant corporation to engage (through its officers, employees, and agents) in certain corporate activities in which it is alleged to be engaged and asking that it be permanently enjoined from engaging in those activities.

Count II is a civil proceeding to forfeit the charter of the defendant corporation, brought pursuant to sections 38-1 through 38-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 38-1 through 38-3), because (through its officers, employees, and agents) it had engaged in certain specified corporate activities. The count also sought a permanent injunction against the corporation, and its officers, employees, and agents, from engaging in the business of towing automobiles, trucks or other vehicles.

Count III is an action in tort for conversion of the automobiles of the respective named plaintiffs by the refusal of defendants to redeliver possession of the said automobiles unless and until the respective plaintiffs paid towing charges (and in some cases storage charges as well), which said charges did not constitute a valid lien on the said automobiles. Plaintiffs allege that defendants will continue to commit similar conversions unless enjoined. Attached to Count III were supporting affidavits of each of the named plaintiffs plus affidavits of several other persons in respect of their own vehicles. Plaintiffs ask:

(1) for a declaration that their action is a proper class action;

(2) for restitutional money damages for each named plaintiff in the amount of the towing and storage charges each had paid;

(3) for a permanent injunction prohibiting defendants from engaging in the business of towing automobiles, trucks, or other vehicles.

Defendants moved to strike and dismiss all three counts of the complaint. In addition, as to Count III, defendants moved for a declaration that the representation of the plaintiffs in Count III by the State's Attorney of Cook County is without constitutional or statutory authorization, and for the ouster of Bernard Carey, State's Attorney of Cook County, as trial counsel for the named plaintiffs. Plaintiffs filed objections to the motion to oust. Memorandums of law were filed by the parties, and a hearing was had on the motion and the objections thereto. The trial court denied the motion. In doing so, the court found: (1) that the representation of the plaintiffs in Count III by the State's Attorney of Cook County was without constitutional or statutory authorization; (2) that Count III involved simply a dispute by the private parties for money damages, and that it was improper for the State's Attorney to represent one private litigant or class thereof against another private litigant; but (3) that the court had no power to prohibit a duly licensed attorney to represent a client before it.

Subsequently, the trial court found that: (1) as to Count I, quo warrantor was an inappropriate remedy under the allegations therein; (2) as to Count II, the statute which was the alleged basis for the count was inapplicable to the conduct complained of therein; and (3) as to Count III, the count failed to state a cause of action. Accordingly, the trial court dismissed the complaint. All plaintiffs then filed a timely notice of appeal from the dismissal of the complaint: relator Bernard Carey from the dismissal of Counts I and II, and the named plaintiffs, through Bernard Carey, State's Attorney of Cook County, from the dismissal of Count III.

Thereafter, defendants-appellees filed in this court the instant motion to oust the State's Attorney of Cook County from representing, as appellate counsel, the named plaintiffs who, both individually and on behalf of all others similarly situated, are appealing from the dismissal of Count III. After alleging that the said named plaintiffs had paid no filing fee for filing their appeal, the motion sought the said outster or, in the alternative, that the named plaintiffs be ordered to pay, within a short time and out of their own funds, the usual filing fee and other usual fees and costs involved in an appeal, on penalty else of the dismissal of their appeal.

The named plaintiffs-appellants, through Bernard Carey, State's Attorney of Cook County, filed objections to the motion on the ground, inter alia, that the issue in the trial court of the propriety of the State's Attorney's representation of the three named plaintiffs in Count III had been waived by the failure of defendants-appellees to cross-appeal from the denial of its motion in the trial court. *fn1 We took the position, however, that the matter could be properly raised by motion in this court, because this court has its own independent interest in the propriety of representation by appellate counsel in ...


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