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De Witt Cty Taxpayers' Ass'n v. County Bd.

OPINION FILED FEBRUARY 3, 1983.

THE DE WITT COUNTY TAXPAYERS' ASSOCIATION, PLAINTIFF-APPELLANT,

v.

THE COUNTY BOARD OF DE WITT COUNTY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of De Witt County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:

Plaintiff De Witt County Taxpayers' Association filed a complaint in the circuit court of De Witt County seeking both preliminary and permanent injunctive relief against defendants, the De Witt County Board and the De Witt County Public Building Commission, to restrain them from spending public monies or taking steps toward the erection of a county courthouse pursuant to the provisions of the Public Building Commission Act (Ill. Rev. Stat. 1981, ch. 85, pars. 1031 through 1054) and to declare that the formation of the Public Building Commission was unlawful. The trial court denied plaintiff's request for preliminary injunctive relief and later granted defendants' summary judgment motion dismissing plaintiff's complaint for declaratory judgment and permanent injunction. Plaintiff has brought this interlocutory appeal under Supreme Court Rule 307(a)(1) (87 Ill.2d R. 307(a)(1)). The singularly dispositive issue on appeal is whether section 4 of the Public Building Commission Act, which provides that "[n]ot more than one Public Building Commission shall be organized by a single unit of local government," prohibits the successive as opposed to concurrent formation of a Public Building Commission by the County Board of De Witt County. (Ill. Rev. Stat. 1981, ch. 85, par. 1034.) We hold that it does not and affirm.

Plaintiff's complaint consisted of two counts, one directed against the De Witt County Board and the other against the De Witt County Public Building Commission. Plaintiff claimed in the complaint that it was a not-for-profit corporation whose members consisted of taxpayers of De Witt County.

Plaintiff alleged in count I that on March 26, 1982, the county board adopted a resolution creating the defendant Public Building Commission (PBC) and that at the time the resolution was passed there was in full force and effect section 4 of the Public Building Commission Act, which provides, in part:

"Not more than one Public Building Commission shall be organized by a single unit of local government." (Ill. Rev. Stat. 1981, ch. 85, par. 1034.)

Plaintiff's complaint further stated that prior to the adoption of the resolution, the defendant board had created a previous PBC which had been dissolved by resolution, and that the second PBC was unlawful. Plaintiff alleged irreparable injury, an inadequate remedy at law, and prayed for equitable relief. Count II contained essentially the same allegations. In addition to the request of injunctive relief prohibiting action by agents of either party on behalf of the PBC, count I of plaintiff's complaint also requested an injunction to prohibit the De Witt County Board from transferring, inter alia, cash grants to the PBC.

As a preliminary matter in this cause, we must first consider the standing of the De Witt County Taxpayers' Association to maintain this action on behalf of the taxpayers of the county.

• 1 At the time the instant suit was filed, section 11-301 of the Code of Civil Procedure specifically sanctioned suits to restrain expenditures of public monies. Section 11-301 provides:

"An action to restrain and enjoin the disbursement of public funds by any officer or officers of the State government may be maintained either by the Attorney General or by any citizen and taxpayer of the State." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 11-301.

This statute comports with the well-established rule at common law which also requires suits to restrain public monies to be brought by a citizen-taxpayer. Paepcke v. Public Building Com. (1970), 46 Ill.2d 330, 263 N.E.2d 11.

Here, the issue thus arises whether plaintiff met the requirement of the statute and of common law that it be a taxpayer. Nowhere in the complaint is allegation made that plaintiff is in the class alleged to be injured by the activities of the defendants nor does plaintiff prosecute this action as a class action on behalf of De Witt County taxpayers. Plaintiff purports only to represent its members who are alleged to be taxpayers.

Despite the fact that plaintiff is not itself a taxpayer, we believe it is entitled to assert the rights of those who are. In Maiter v. Chicago Board of Education (1980), 82 Ill.2d 373, 382, 415 N.E.2d 1034, 1038, the supreme court held that the presence of an organization intervenor in a suit was not improper despite the lack of direct interest of the intervenor since the organization's members were directly affected by the action. There, the court noted, "It has been held that an organization has standing to assert the concerns of its constituents. (NAACP v. Alabama (1958), 357 U.S. 449, 2 L.Ed.2d 1488, 78 S.Ct. 1163.)" 82 Ill.2d 373, 382. See also Sierra Club v. Morton (1972), 405 U.S. 727, 31 L.Ed.2d 636, 92 S.Ct. 1361; Wisconsin's Environmental Decade, Inc. v. Public Service Com. (1975), 69 Wis.2d 1, 230 N.W.2d 243; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973), 34 Cal.App.3d 117, 109 Cal.Rptr. 724.

Having determined that plaintiff has standing to maintain this action, we next turn to the dispositive issue mentioned above, i.e., whether section 4 of the Public Building Commission Act prohibits the successive as opposed to the concurrent creation of a public building commission by a unit of local government.

• 2 The Public Building Commission Act provides a mechanism by which municipalities, county seats, and county boards may create public building commissions for the purpose of, inter alia, repairing, altering, improving or erecting buildings to provide "space for the conduct of the executive, legislative and judicial functions of government, its various branches, departments and agencies thereof and to provide buildings, improvements and other facilities for use by local government in the ...


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