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Hoover v. May Department Stores Co.

OPINION FILED OCTOBER 2, 1979.

RONALD HOOVER ET AL., APPELLEES,

v.

THE MAY DEPARTMENT STORES COMPANY, APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. John W. Day, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The circuit court of Madison County entered summary judgment in favor of plaintiffs, Ronald Hoover and Sheila Ruth, individually and as representatives of a class, against the defendant, May Department Stores Company, for violations of the Illinois Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 501 et seq.), and the Missouri Retail Credit Sales Law (Mo. Rev. Stat. 1969, sec. 408.250 et seq.). The plaintiffs represent a class of credit purchasers from the defendant-owned Famous — Barr Stores. The defendant was enjoined from further violations of the acts and ordered to give notice to the members of the class, to pay back excess finance charges, to set aside a fund of $9 million, and to make an accounting to the court of finance charges collected from members of the plaintiff class. The court found no just reason to delay the appeal as to certain issues (58 Ill.2d R. 304(a)), and since it was felt portions of the order were interlocutory, the court made findings pursuant to our Rule 308 (58 Ill.2d R. 308) that substantially all of the content of its order involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The appellate court allowed defendant's motion for an interlocutory appeal and affirmed the judgment of the circuit court, with one justice dissenting. (62 Ill. App.3d 106.) We granted the defendant's petition for leave to appeal.

The complaint, as finally settled in the trial court, contained four counts against the defendant charging violations of the Illinois Retail Installment Sales Act, the Missouri Retail Credit Sales Law, the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 261 et seq.), and the Missouri Merchandising Practices Act (Mo. Rev. Stat. 1969, sec. 407.010 et seq.). It is clear from the order of the trial court that its decision was not based on the consumer fraud statutes of the two States, but was based solely on the Illinois Retail Installment Sales Act and the Missouri Retail Credit Sales Law. We therefore judge the correctness of the order entered by the standards of the two acts involved, and we do not consider the order in light of the two consumer fraud statutes.

Famous-Barr Department Stores are owned by the defendant, May Department Stores Company, and have operated in the St. Louis area since 1879. For nearly 60 years, Famous-Barr has distributed Eagle trading stamps to its customers. It is the method by which these stamps were issued that is questioned in this case. We need not detail the facts. Briefly, when a customer purchases an item for cash, he receives Eagle stamps at the rate of 100 for each $10 purchase. If the customer does not pay cash, he receives no stamps at that time, but if he pays his account within 30 days after billing, he receives a slip which can be exchanged for stamps. If he does not pay his account within that time, he receives no stamps. The stamps can be exchanged at any Eagle Stamp exchange point regardless of where the purchases were made. It is plaintiffs' contention that the failure to issue Eagle stamps to the last class of credit customers mentioned constitutes an additional charge which defendant has not disclosed to the customers and is a violation of the two retail credit sales statutes. The action seeks to recover the value of the trading stamps that this class of customers did not receive by virtue of paying for their merchandise in more than the allotted time after billing. It is estimated that no single customer will receive more than $20.

Numerous issues have been raised in this court which we need not consider because we hold that, at the time covered by the complaint, a private cause of action could not be maintained under either of the statutes involved in this appeal.

We will first consider the Illinois act. Prior to 1968, the Illinois Retail Installment Sales Act made certain provisions for the consequences of violations of the Act. Section 17 provided:

"Sec. 17. Failure to comply — Remedy of buyer. In case of failure of the seller or holder to comply with the provisions of this Act, the buyer has the right to recover from the seller or holder, as the case may be, an amount equal to the finance charge or 10% of the cash price if no finance charge is specified * * * plus reasonable attorneys' fees." (Ill. Rev. Stat. 1965, ch. 121 1/2, par. 240.)

In addition to authorizing a private cause of action, the Act, in section 20, provided that any person who wilfully and knowingly violated any provisions of the Act could be punished by a fine of not more than $500, and further provided that "[a]ny person violating any of the provisions of Sections 2 to 17, inclusive, * * * is barred from recovery of any finance charge, delinquency or collection charge or refinancing charge * * *." (Ill. Rev. Stat. 1965, ch. 121 1/2, par. 243.) No provision was contained in the pre-1968 act for the enforcement of its provisions by the Attorney General or a State's Attorney.

In 1967 the General Assembly enacted a new retail installment sales act, which specifically repealed the Retail Installment Sales Act of 1957 as amended, but provided that the repealed act remain in effect as to transactions entered into before January 1, 1968. (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 533.) The 1967 act was approved July 26, 1967, and became effective January 1, 1968. The case now before us does not involve transactions entered into prior to January 1, 1968.

The present act does not contain a provision authorizing a private cause of action by a buyer against one who violates the provisions of the Act similar to that contained in section 20 of the 1957 act. Thus, although the present act repealed the 1957 act and reenacted a substantial portion of the former act's provisions, it did not re-enact the remedy provision creating a private cause of action in the buyer. The present act, however, does contain a provision for the enforcement of the Act by the Attorney General or a State's Attorney. As noted above, the 1957 act had no such enforcement provision. Section 30 of the present act provides:

"Sec. 30. The Attorney General or the State's Attorney of any county in this State may bring an action in the name of the State against any person to restrain and prevent any violation of this Act. * * *" (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 530.)

Also, section 31 of the present act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 531) contains a penalty provision substantially the same as that contained in section 20 of the 1957 act set out above. Thus, under the present act, as under the 1957 act, the violations of the Act constitute a misdemeanor for which the seller can be punished, and the seller is prohibited from recovering any finance charge in connection with the retail installment sales contract. However, the new act, instead of leaving the enforcement to private actions, has vested in the Attorney General or a State's Attorney the authority to bring actions against violators to restrain and prevent violations.

In 1967 the General Assembly not only repealed the 1957 Retail Installment Sales Act and enacted a new one, but also it enacted legislation creating a new Motor Vehicle Retail Installment Sales Act, a new Sales Finance Agency Act, and adopted several amendments to the Consumer Fraud and Deceptive Business Practices Act. These three new acts, and the amendments to the latter, are all interrelated and were all approved July 26, 1967. In fact, these changes were all made by a package of bills which were introduced in the General Assembly on the same day, January 4, 1967, all of which had the same principal sponsors. These bills had sequential Senate Bill numbers. The amendment to the Consumer Fraud and Deceptive Practices Act was contained in Senate Bill No. 25; the Sales Finance Agency Act was created by Senate Bill No. 26; the repeal of the 1957 Retail Installment Sales Act and the creation of the new act were accomplished in Senate Bill No. 28, and the Motor Vehicle Retail Installment Sales Act was provided for in Senate Bill No. 29. Two other related bills, which are not relevant to this case, were also contained in this package. Senate Bill No. 27 was related to Senate Bill No. 26 and provided for supervision of sales finance agencies. Senate Bill No. 30 amended the law concerning rates of interest. See 1967 Ill. Laws 2062, 2068, 2143, 2149, 2163, 2211.

The Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 561 et seq.) provides in section 23 (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 583) for enforcement by the Attorney General or a State's Attorney in the same manner as section 30 of the present Retail Installment Sales Act. Section 24 of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 584) contains the same penalty provisions for violations of the Act as are contained in section 31 of the present Retail Installment Sales Act (Ill. Rev. Stat. ...


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