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Getto v. City of Chicago

OPINION FILED JANUARY 27, 1981.

CHARLES A. GETTO, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS. — (IOWA-ILLINOIS GAS & ELECTRIC COMPANY ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

We granted interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). It arises from the trial court's denial of a motion made jointly by numerous municipal corporations to dismiss due to improper venue and the trial court's overruling of objections to venue made by several utility companies. The suit itself is a class action brought to recover excessive charges allegedly collected from the customers of the defendant utilities by the defendant municipalities.

The question of law certified by the trial court as the basis for this Rule 308 appeal is:

"Whether Section 7(1) of the Illinois Civil Practice Act [Ill. Rev. Stat. 1979, ch. 110, par. 7(1)] controls, and requires transfer of, venue respecting multiple municipal and public corporations whose principal offices are located in foreign counties when said corporations are joined in good faith in a single Cook County action with other municipal and public corporations for which Cook County is the appropriate venue."

The Illinois Municipal Code authorizes municipalities to levy a tax on the "gross receipts" of public utilities. (Ill. Rev. Stat. 1979, ch. 24, par. 8-11-2(3).) Pursuant to this provision, defendant City of Chicago enacted an ordinance imposing such a tax upon defendant Commonwealth Edison Company (Com Ed). (Chicago Municipal Code § 132-17 (1977).) Utilities which are so taxed are authorized by the Public Utilities Act to recover the amounts paid for those taxes and associated fees from their customers. Ill. Rev. Stat. 1979, ch. 111 2/3, par. 36(a).

Plaintiff Getto is one such customer. He originally filed this class action suit in Cook County as a representative member of the class of all residents of Chicago who were customers of Com Ed. The complaint alleged that Chicago and Com Ed had misconstrued the term "gross receipts" found in the State statute and city ordinance and were thereby effectively collecting taxes not only on the "income" of the utility but also on the amounts which the utility collected from its customers to offset the tax. In other words, Chicago through Com Ed has levied a tax upon a tax. *fn1

Plaintiff twice amended and supplemented his complaint. He first added count II, alleging that the same wrong had been perpetrated through Com Ed by 83 other municipalities located both within and without Cook County. Plaintiff's second amended and supplemental complaint contained count III, which added as defendants nine other public utilites from the "downstate" region. *fn2 The complaint alleged that these companies had improperly assessed excessive amounts upon their customers in response to various municipal tax ordinances. None of the ordinance-enacting municipalities involved therein are yet parties to the action. Plaintiff is neither a customer of any of these nine utilities, nor is he a resident of any municipality other than initial defendant Chicago. None of the nine companies do any business relevant to this suit in Cook County.

• 1 The three appellant utilities and the non-Cook County municipalities added in count II made separate timely motions concerning, among other things, the propriety of Cook County venue as to them, in light of section 7(1) of the Civil Practice Act. The trial court, as relevant to this appeal, denied the municipalities' motion for dismissal based upon venue considerations. The court also overruled the utilities' objections to venue. Because the trial court believed that a question of law over which there was a substantial ground for a difference of opinion arose from the first ruling, it certified the question recited above for interlocutory review pursuant to Rule 308. This court granted the applications for appeal made by the utilities.

I.

• 2 The terms of Rule 308 provide an exception to the general rule that appeal may be taken only from final judgments of the circuit court. (Ill. Rev. Stat. 1979, ch. 110A, par. 301.) The supreme court has indicated that such appeals are to be allowed only in certain "exceptional" circumstances. (See People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 538, 387 N.E.2d 325, cert. denied (1979), 444 U.S. 940, 62 L.Ed.2d 306, 100 S.Ct. 292.) Thus, Rule 308 should be strictly construed and sparingly exercised. An appeal thereunder should be limited to the question certified by the trial court. Since all review by this court is limited by supreme court rule to final orders and certain interlocutory orders specified in those rules, a matter of jurisdiction is involved. This court should not expand upon the questions properly brought before us by the trial court in order to answer others which could have been included. Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App.3d 676, 683, 396 N.E.2d 1366.

Set forth above is the precise phraseology used by the trial court in identifying the question of law we are asked to review. We find it necessary, in light of the just noted strictures upon Rule 308 appeals, to undertake a careful analysis of the question's language in order to assure that our review powers are stringently utilized and narrowly focused.

Initially, we note that the trial court, for whatever reason, narrowed the issue presented here to that part of its order dealing with the motion filed by the "multiple municipal and public corporations whose principal offices are located in foreign counties." (Emphasis added.) It is evident that the appellant utility companies are neither municipal nor public corporations. *fn3 Thus, by the terms of the question certified, we are not presently concerned with that part of the trial court's order which dealt with the venue objections raised by the utilities. The instant appeal is also not concerned with the trial court's oral findings, not contained in any written order, that the nine utility companies named as defendants in count III were properly joined in this action. *fn4

Further, it is apparent that the trial court focused the question presented upon those municipal and public corporations which were "joined * * * in [this] single Cook County action." *fn5 Only the municipalities named as defendants in counts I and II which are served by and which levy a tax upon Com Ed fall within this grouping.

• 3 Thus, the scope of the question to be reviewed here is narrowly focused. It concerns whether section 7(1) of the Civil Practice Act requires the transfer of venue for those municipal corporations which are named as defendants in count II, are located outside of Cook County, and are served by and tax Com Ed. Principles of standing limit parties to contesting those rulings which adversely affect their interest. (Buehler v. Whalen (1976), 41 Ill. App.3d 446, 461, 355 N.E.2d 99, aff'd (1977), 70 Ill.2d 51, 374 N.E.2d 460.) We therefore conclude that only those entities named ...


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