APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This appeal involves a class action suit brought by Paul E. Hamer as representative of the class, on behalf of himself and all parents and guardians of children attending school in School District #113. Paul E. Hamer is both the sole class representative and the attorney representing the class.
The suit was brought in three counts. Count I of the first amended complaint prayed for a judgment declaring the rights and duties of the defendant school board relevant to the charging of fees for rental of textbooks and equipment and asked that the school board be required in the future to permit all qualified children to enroll and attend schools in the district without payment of any fees for the purchase or rental of any books, supplies or equipment incident to the curriculum and that the board be required to refund all such charges since 1970 and all charges of any kind for prior years since 1959, except textbook fees.
Count II is somewhat repetitious but invokes the equity powers of the court for an injunction to restrain the board "from depriving any children enrolled in schools within the District of textbooks or materials or supplies in the future for failure to pay any fees or to purchase any books, supplies or equipment incident to any portion of the curriculum or other recognized school activities." It also prays for an accounting "of the public funds used to purchase textbooks which were lent to children whose parents were unable to purchase them and for an accounting of all fees paid, beginning with the Fall semester of 1970 and each semester thereafter."
Count III prayed that a writ of mandamus be issued compelling the respondent to perform certain acts relative to the determination of which children should receive free textbooks; to conduct a meeting open to the public relative to such determination; to record the names of such children's parents, to compel the respondent "to promulgate rules and regulations as the basis for determining which children shall receive free texts"; to compel the respondent to furnish free texts, supplies and equipment to all children enrolled in the schools in the future; to refund to the petitioner "all moneys paid commencing with the Fall term of 1959 and continuing each semester thereafter," and for costs and attorney fees.
The trial court, on motion of the respondent school district dismissed count III and struck certain paragraphs of counts I and II with leave to file a second amended complaint. The plaintiff filed certain amendments to the first amended complaint. The defendant filed a motion for summary judgment, contending as a basis for such motion (1) that the claim for recovery of fees is barred by laches and the statute of limitations, (2) that the plaintiff does not represent a class, but only himself, (3) that the plaintiff lacks standing to complain as to expenditures made for textbooks for indigent students, since tax moneys were not used for such purpose, (4) that previous decisions, viz., Hamer v. Board of Education (1970), 47 Ill.2d 480, and Hamer v. Board of Education (1973), 9 Ill. App.3d 663, are res judicata as to the constitutionality of charging fees for textbooks and that the practices sought to be enjoined are within the statutory authority of the respondent School District.
After a hearing, the trial court granted the motion for summary judgment as to count III (petition for mandamus), and as to the class action aspect of counts I and II, leaving intact the individual claim of Paul E. Hamer for recovery of certain fees and charges for textbooks paid by him on behalf of his daughter during the 1970-71 school year. In its order granting the motion for summary judgment the court found: (1) that Paul Hamer had failed to notify any of the other members of the class he purported to represent, although they are identifiable and easily notified; (2) that Paul Hamer has a conflict of interest by reason of being both the representative of the class and the attorney for the class and that his interest as a member of the class is small and his possible fees as attorney are large, thus disqualifying him from acting as the sole plaintiff; (3) that the five-year statute of limitation applies to the transactions involving the purchase of textbooks and fees for books and equipment involving claims prior to 1965-66 and are therefore barred by the statute of limitations, (4) that the fees were paid and the books purchased voluntarily without protest except as to $18 which was paid under protest for the school year 1970-71 on behalf of the plaintiff's daughter.
Hamer appeals from that part of the trial court's order of August 21, 1975, dismissing the suit as a class action, denying leave to substitute another plaintiff, ruling that the five-year limitation of actions applies to the transactions in question and also the ruling that the fees in question were paid and the textbooks purchased voluntarily.
Two (apparently) oral motions of the plaintiff were denied in this order. One, an oral motion of the plaintiff to substitute another named plaintiff as class representative and to notice the alleged class at that time, and two, a motion for summary judgment for the plaintiff.
• 1 The reason for denying the plaintiff's oral motion referred to in the order of August 21, 1975, to substitute another plaintiff and to notify the members of the class, is not disclosed anywhere in the record, sofar as we can find, however, the motion was not made until some three or four years after the filing of the original complaint and we may assume, as indicated in the defendant's brief, that it was not considered timely when made. The motion was made at the last possible moment in the litigation and under the circumstances we do not think it was an abuse of discretion to deny it. The possibility of enhancing the plaintiff's case through a new and hitherto undisclosed class representative who would take over the role of plaintiff, did not, apparently, seem to the court to justify the further delay it would entail. This is not a case of joinder of necessary parties in order to accomplish the ends of justice as provided for by section 26 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 26). In this case the motion was to substitute an entirely new plaintiff for the present plaintiff, Hamer. There was no evidence that such a person was at that moment available and willing to accept that role. There were no vested rights involved and the possibility of a new and proper class representative was only a conjectural matter at that point some four years after the case began and within the court's discretion as such to decide. It was a procedural matter at that point.
The plaintiff contends, however, that he was a proper class representative in any event and that the court erred in holding that he represented only himself and not the described class, merely because he failed to notify the members of the class. He contends that notice to the other members of the class is not a procedural requirement under the Illinois cases and cites Hamer v. Lehnhausen (1975), 60 Ill.2d 400, and People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303. Neither case, however, is authority for the proposition that in Illinois a class action may be maintained by one individual on behalf of many others whose interests may be very divergent, without notice to any other members of the class, when such members are easily identifiable and reasonably accessible to notice. Lehnhausen was a taxpayers' suit in Lake County brought on behalf of all Illinois taxpayers to enjoin the certification of a tax multiplier of less than the prescribed 42% of assessed value. The contention was made by the State that the Lake County circuit court was not the proper forum for resolution of the questions presented in that case and that the action must fail because notice was not given to all 101 counties in the State, which were potential defendants. The court pointed out, however, that not all the taxing bodies in all the counties were necessary parties the case presented by the class action suit was whether a State official had performed the duties required of him by the Revenue Act, and this would not require notice to every party, who might by leave of court, have a right to intervene. The Lehnhausen case is, therefore, not significant as to the question of notice required to other members of the class in order to sustain a class action, which is the question in the case before us.
• 2 In the Equity Funding case, there was a class of claimants designated as "fraud claimants" who were in addition to creditors and other individual claimants. It was contended by the defendant (insurers, investors and others with interests adverse to the fraud claimants) that proper notice was not given to certain absent members of the fraud claims' class, other than by publication. In the course of its discussion on this point, the court said:
"Neither section 52.1 of the Civil Practice Act nor the requirements of due process as suggested in Eisen [Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 40 L.Ed.2d 732, 94 S.Ct. 2140] requires individual notice to all members of the class in all circumstances." (61 Ill.2d 303, 312.)
That general statement is not meaningful here. In the case before us no notice of any kind was sent or claimed to be sent to the other members of the class, although they were easily identifiable and accessible from the school records. The plaintiff makes the bland assertion in his brief, citing the Equity Funding case that "the trial court erred in dismissing the class action aspect of the suit because notice had not been given to the other members of the class, since under neither Eisen or our statute was notice required in the instant case." Since the instant case is one where individual notices would be required if they were ever to be required in any class action suit because the school records make individual notice of the class members very simple the plaintiff is apparently suggesting that since notice in class action suits is not required by statute in Illinois it is not required at all. While it is true that the immediate concern of the Eisen case was with Rule 23 of the Federal Rules of Civil Procedure, and we have no counterpart to that rule in our own practice, Rule 23 is in its turn, founded on considerations of due process and the Illinois Supreme Court has time after time asserted the need to comply with the fundamental concepts of due process in connection with class actions. Since all members are bound by a decree in a class action suit, the requirements of due process fundamental to the suit and basic to the requirements of due process are notice, where it is reasonably possible, and adequacy of representation. In the case before us it is obvious that there may be a serious ...