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Thornton, Ltd. v. Kusper

OPINION FILED SEPTEMBER 27, 1979.

THORNTON, LTD., ET AL., PLAINTIFFS-APPELLANTS,

v.

STANLEY T. KUSPER, JR., COOK COUNTY CLERK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This action was brought by Thornton, Ltd., an Illinois partnership, on behalf of a class, which is engaged in the purchase of lots and lands in Cook County, Illinois, and sold by the county collector because the general real estate taxes were not paid. Plaintiffs sought relief founded on the proposition that defendant withheld redemption funds from plaintiffs so that he could invest those funds for a limited time and thereafter receive the benefits for the county from such investment.

On July 23, 1976, defendant filed a motion to strike and dismiss plaintiffs' complaint. On July 11, 1977, the court dismissed the complaint for failure to state a cause of action. This appeal was taken from that order and we affirm.

The issues presented for review are (1) whether the investment-of-public-funds act has retroactive application; (2) whether this Act supports a claim for lawful investment of private funds; (3) whether the relationship of the county clerk to a tax certificate holder is one of agency and/or trust; and (4) whether the Interest Act bars plaintiffs' claim.

Plaintiffs, who are tax purchasers, filed a complaint in the circuit court of Cook County seeking an injunction to enjoin Stanley T. Kusper, Jr., in his official capacity as Cook County Clerk, from retaining certain monies received by him for the purpose of tax redemption for a period of longer than one working day subsequent to the actual receipt of monies. Plaintiffs also sought an accounting of the monies received for that purpose for the 10 years immediately preceding the filing of this lawsuit, and an accounting for any interest or other investment benefits, and that the court order defendant to pay plaintiffs any and all monies earned through the use or investment of redemption funds.

Plaintiffs' complaint further alleged that defendant retained said funds in excess of the time required to perform the necessary bookkeeping functions.

Defendant filed a motion to strike and dismiss the complaint. Plaintiffs filed a response to the motion and, thereafter, both parties filed several memoranda in support of their positions. On July 11, 1977, the trial court granted defendant's motion and dismissed the suit with prejudice for failure to state a cause of action. This appeal was taken from that order.

Both plaintiffs and defendant refer to the 1975 statutes as being applicable, but, in fact, they are in error, and the 1973 statutes are relevant to this action. Therefore, any references made to the 1975 statutes apply to the 1973 statutes.

First, plaintiffs contend that sections 1 and 2 of the investment-of-public-funds act (Ill. Rev. Stat. 1975, ch. 85, pars. 901, 902) (hereafter Act), do not have retroactive application. Section 1 of the Act reads in pertinent part as follows:

"The words `public funds', as used in this Act, mean current operating funds, special funds, interest and sinking funds, and funds of any kind or character belonging to or in the custody of any public agency.

The words `public agency', as used in this Act, mean the State of Illinois, the various counties, * * *."

Section 2 of the Act prior to the 1973 amendment read in pertinent part as follows:

"Any public agency may invest any public funds in bonds, notes, certificates of indebtedness, treasury bills or other securities, now or hereafter issued, which are guaranteed by the full faith and credit of the United States of America as to principal and interest, or may invest in certificates of deposit or time deposits constituting direct obligations of any bank as defined by the Illinois Banking Act, * * *. * * * Provided, however, that only such public funds shall be so invested as, in the judgment of such governing authority, will not be required for expenditure within a period of 90 days from and after the date of the investment thereof and, provided further, that all such securities so purchased shall mature or be redeemable on a date or dates prior to the time when, in the judgment of such governing authority, the public ...


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