APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiffs filed this action on behalf of themselves and all others similarly situated, alleging that the Chicago message tax (Chicago Municipal Code, ch. 132, § 132-30 et seq.) is improperly being collected on credit card and collect calls originating outside the city limits. Defendants brought motions to dismiss which the trial court originally granted, but later vacated. However, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308), the court certified for appeal the questions raised in the motions to dismiss and we granted leave to appeal. Defendants contend: (1) the Illinois Commerce Commission (Commission) has primary and exclusive jurisdiction to hear this matter; and (2) plaintiff lacks standing to bring suit.
Section 8-11-2(1) of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 8-11-2(1)) authorizes municipalities to tax "the business of transmitting messages by means of electricity, at a rate not to exceed 5% of the gross receipts from such business originating within the corporate limits of the municipality." Pursuant to this authority, the City of Chicago enacted an ordinance imposing a 5% tax on the business of transmitting messages by means of electricity on all messages "originating within the corporate limits of the city." Chicago Municipal Code, ch. 132, § 132-30 et seq.
Section 36(a) of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 36(a)) authorizes the telephone company to transfer the tax, plus the costs of accounting, and any increase in payments to governmental bodies resulting from the tax, to their customers in the form of an "additional charge." It must, however, file with the Commission a copy of the municipal ordinance and a supplemental rate schedule specifying the "additional charge." Although the charge is effective upon filing, the Commission may investigate whether the charge is correctly specified, and if not, it may order a refund. Ill. Rev. Stat. 1973, ch. 111 2/3, par. 36(a).
In accordance with these provisions, Illinois Bell Telephone (Bell) filed a supplemental schedule with the City of Chicago effective June 1, 1973.
On September 5, 1973, plaintiff Marilyn Adler, brought the instant action seeking an injunction, an accounting, and other relief. She alleged that Bell "is consistently adding and imposing a tax equal to the rate provided in the Ordinance [sic] on messages originating outside the corporate limits of the city where the calls are collect or on telephone credit cards billed to a telephone number within the corporate limits of the city." (Emphasis hers.) On August 30, 1973, she had filed a similar complaint with the Commission (Marilyn Adler v. Illinois Bell Telephone Company (August 30, 1973), No. 58529).
Defendants filed motions to dismiss arguing that: (1) the Commission had primary and exclusive jurisdiction in this matter; (2) plaintiff lacked standing; and (3) the complaint did not state a proper class action. After allowing plaintiff to amend, the court dismissed her complaint and continued generally her motion to vacate the dismissal pending the outcome of the Commission hearing.
After conducting a hearing, the Commission refused to decide the matter, finding that there were no "technical interpretations to be made by the Commission within the purview of its expertise * * *." Believing the issue to be solely one of statutory interpretation, they held it was "not for this commission, but a court of law to decide, * * *." They did however retain jurisdiction to order refunds depending upon the court's interpretation of the ordinance.
The Commission denied plaintiff's petition for rehearing on May 9, 1975, and she did not appeal. Rather, she proceeded with this action in circuit court. The court allowed her motion to vacate on July 16, 1975. Thereafter, she amended her complaint to its present form. Counts I and III allege that the Chicago message tax is being collected on credit card and collect calls originating outside the city limits in contravention of section 8-11-2(1) of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1973, ch. 24, par. 8-11-2(1)) and section 132-30 et seq. of the Chicago Municipal Code (Chicago Municipal Code, ch. 132, § 132-30 et seq.); count II alleges that the ordinance is unconstitutionally administered and enforced; and count IV alleges that the ordinance is unconstitutionally administered and enforced, and unconstitutionally vague. Plaintiff also added Leonard Adler as party plaintiff.
Defendants renewed their motions to dismiss. On July 14, 1976, the court denied these motions holding that: (1) the circuit court has jurisdiction to hear this matter; (2) the plaintiffs have standing to maintain this suit; and (3) the amended complaint states a proper class action.
Defendants first contend that the circuit court lacks jurisdiction to consider this matter because section 72 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 76) vests the Commission with exclusive and primary authority to consider excessive rate charges. (Cummings v. Commonwealth Edison Co. (1966), 64 Ill. App.2d 320, 213 N.E.2d 18.) Plaintiffs acknowledge the Commission's authority to consider excessive rate charges, but argue that the "additional charge" is a tax on telephone subscribers, and not part of the rate charged for telephone services. They conclude therefore, that this matter is properly within the jurisdiction of the circuit court.
Plaintiffs' argument, although raised in a different context, was considered and rejected in Agron v. Illinois Bell Telephone Co. (7th Cir. 1971), 449 F.2d 906, cert. denied (1972), 405 U.S. 954, 31 L.Ed.2d 231, 92 S.Ct. 1171, which we find persuasive. There the court found that:
"The Illinois statutes authorizing and imposing a tax on the occupation or business of transmitting messages by means of electricity are explicit. Ill. Rev. Stat. ch. 120, § 467.2 and ch. 24, § 8-11-2 (1969). For instance, section 467.1 provides that: `Taxpayer means a person engaged in the business of transmitting messages' and section 467.2 states that: `A tax is imposed upon persons engaged in the business of transmitting messages in this State.' It would be difficult to interpret such specific language as imposing a tax on telephone subscribers. It may be that IBT normally `passes on' to its subscribers the economic burden of the state and local occupation taxes just as every unsubsidized business must `pass on' and recover from its customers every item of operating expense including state and federal taxes if it is to operate profitably. But the fact ...