APPEAL from the Circuit Court of Sangamon County; the Hon.
RICHARD J. CADAGIN, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Paid under protest to comply with statute?
Here are the facts. Yellow Freight System (Yellow) and Kroblin Refrigerated Xpress (Kroblin) mailed checks to the Illinois Commerce Commission (Commission) for payment of certain franchise fees which were due under section 18-801 of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 18-801) and Illinois Commerce Commission General Order Number 1, as amended. Each of these payments purported to be protested.
Along with its check for the tax due, Kroblin sent a letter dated November 29, 1978, which stated that the protest was being made under a case before the United States District Court for the Eastern District of Illinois. However, the action cited by Kroblin had been dismissed by the Federal court over a year earlier, on October 31, 1977.
A check in the amount of $38,900 was sent to the Commission by Yellow with the words "paid under protest" typed on the face. This check was accompanied by Yellow's fee application. Typed on the fee application were the words "ordered and paid for under protest" and "advance decals 155" which were highlighted by a yellow ink marker. Both the check and the fee application were dated November 29, 1978.
On December 22, 1978, 24 days after the tax payment, both Yellow and Kroblin sent letters to the Commission which were captioned "Amended notice of protest." Yellow's letter advised the Commission that $33,550 of the total $38,900 was protested under the case of Yellow Freight System, Inc., and Kroblin Refrigerated Xpress, Inc. v. Illinois Commerce Commission, which was filed in Sangamon County. Kroblin's letter also referred to the "Sagamon [sic]" County case.
On December 27, 1978, Yellow and Kroblin filed a complaint against the Commission seeking a determination of the constitutionality of the franchise fees and praying for injunctive relief. The plaintiffs also filed a verified petition requesting the circuit court of Sangamon County to issue a temporary injunction to restrain the transfer of the protested payments from the protest fund into the motor vehicle fund.
During the hearing on the petition for the temporary injunction certain stipulations were entered by the parties. These stipulations stated, inter alia, that the Commission "noted" that the payments were protested. It was further stipulated that the Commission (upon the Attorney General's advice) had paid the fees to the State Treasurer, who had then deposited them in the motor vehicle fund.
The Commission filed an affidavit of George R. Taylor, Comptroller of the Illinois Commerce Commission, which stated that no notice of payment under protest in substantially the form required by the Illinois statutes had been received by his office in connection with franchise fees collected for the current year. Mr. Taylor, who received the alleged protest payments, had participated as an affiant in litigation in Madison County where the legality and constitutionality of these same franchise fees were in issue. The parties in the Madison County case are also the parties in the present case and it was stipulated that the Attorney General knew of the existence of the Madison County litigation on November 29, 1978. The Madison County circuit court had dismissed that suit against the Commission on December 1, 1978, and on December 26, 1978, the plaintiffs filed a motion for rehearing.
After arguments, the Sangamon County circuit court, on December 27, 1978, issued a temporary injunction restraining the transfer of plaintiffs' payments and the Commission filed this appeal. The Commission argues that the payments were not properly protested and that it was an abuse of the court's discretion to ...