Appeal from the Circuit Court of Cook County; the Hon. Richard
L. Curry, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiffs Nick and John Mlade filed a class action against the county of Cook, and various county officials, seeking (1) a declaration that several provisions of the clerks-of-courts> act (Ill. Rev. Stat. 1979, ch. 25, par. 1 et seq.) are unconstitutional, and (2) recovery of the fees paid thereunder. The trial court granted the county's motion to strike the complaint and dismiss the lawsuit, and did not rule on plaintiffs' motion to certify the case as a class action.
According to plaintiffs, section 27.2 of the clerks-of-courts> act (Ill. Rev. Stat. 1979, ch. 25, par. 27.2), which establishes the fees that must be paid by litigants to the clerk of the circuit court in counties having a population of more than 1,000,000 people, is invalid for the following reasons:
(1) The statute violates the equal protection and due process clauses of the Federal and 1970 Illinois constitutions (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2), as well as the Illinois provisions which prohibit "special legislation" "when a general law is or can be made applicable" (Ill. Const. 1970, art. IV, sec. 13), and which require that classifications created by revenue laws must be reasonable, with each class "taxed uniformly" (Ill. Const. 1970, art. IX, sec. 2);
(2) The "fees" established by section 27.2 are actually taxes, and they therefore constitute either an income tax imposed at a graduated rate, or an ad valorem personal property tax, both of which are forbidden by sections 3(a) and 5(c) of article IX of the 1970 Illinois Constitution;
(3) These statutory charges violate the constitutional provisions which require payment of just compensation when private property is taken for public use under the power of eminent domain. See Ill. Const. 1970, art. I, sec. 15; U.S. Const., amends. V and XIV, sec. 1; Chicago, Burlington & Quincy R.R. Co. v. City of Chicago (1897), 166 U.S. 226, 41 L.Ed. 979, 17 S.Ct. 581.
Although plaintiffs attack the validity of a number of the subsections contained in section 27.2 of the clerks of courts> act, their complaint only alleges that they paid fees under, and were at most injured by operation of, section 27.2(1), which establishes the filing fee for complaints in civil actions, and section 27.2(15), which establishes fees for probate proceedings. See Ill. Rev. Stat. 1979, ch. 25, par. 27.2(1), (15).
• 1 Specifically, the complaint alleges that Nick Mlade paid a $40 fee (under section 27.2(1)) for filing a civil complaint, and John Mlade paid a $75 fee (under section 272(15)(a)) for filing a petition seeking appointment as representative of a decedent's estate. A threshold question, therefore, is whether plaintiffs have standing to question the constitutional validity of other portions of the clerks-of-courts> act.
"It is well established that a court will not entertain a challenge to the constitutionality of a statute by a party who is not affected by the statute or aggrieved by its operation." (Walker v. State Board of Elections (1976), 65 Ill.2d 543, 550; accord, Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill.2d 499, 510-11; Du Bois v. Gibbons (1954), 2 Ill.2d 392, 408.) We accordingly hold that plaintiffs only have standing to challenge the validity of subsections (1) and (15)(a) of section 27.2, and we will not consider arguments which concern the constitutionality of other subsections.
Initially plaintiffs argue that the trial court committed reversible error by ruling that, as a matter of law, they could not prove any set of facts which would entitle them to the judicial relief they sought. (See Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 305.) However, when the trial court strikes a complaint and the plaintiff does not ask for leave to amend, this is considered an election "to stand by his complaint" (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 109), and if the lawsuit is dismissed the cause of action "must stand or fall upon [the] contents" of the stricken pleading. Krachock v. Department of Revenue (1949), 403 Ill. 148, 153.
• 2 In the present case, although the trial court struck the complaint and dismissed the lawsuit, plaintiffs never asked for leave to file an amended complaint. As a result, their cause of action stands or falls based on the sufficiency of the stricken pleading.
The purpose of pleadings is to inform the court, and the other litigants, of the legal theories which are being relied upon, and to give notice of the factual issues which are to be tried. (Yeates v. Daily (1958), 13 Ill.2d 510, 514.) And to achieve justice between the litigants, pleadings must be liberally construed. (Ill. Rev. Stat. 1979, ch. 110, par. 33(3), now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2-603(c).) Nevertheless, Illinois does not permit so-called "notice pleading" (Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 426-27), and allegations of fact, rather than mere legal conclusions, are necessary to state a cause of action under Illinois law. See Ill. Rev. Stat. 1979, ch. 110, par. 31, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2-601; People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308.
"To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed." People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308.
As a result of the fact-pleading requirement, a court which is examining the legal sufficiency of a complaint must assume the truth of "all facts properly pleaded" (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 96), but it must also ignore conclusions of law which are "unsupported by allegations of specific facts upon which such conclusions rest" (Pierce v. Carpentier (1960), 20 Ill.2d 526, 531).
Applying the principles stated in Fahner v. Carriage Way West, Inc. to the present case, we first examine the substantive law upon which plaintiffs' complaint is based. Under the 1970 Illinois Constitution, the General Assembly has "the exclusive power to raise revenue by law except as limited or otherwise provided in this Constitution." (Ill. Const. 1970, art. IX, sec. 1.) But despite this broad grant of authority, plaintiffs argue that section 27.2 of the clerks-of-courts> act violates the equal protection and due process clauses of the Federal and 1970 Illinois constitutions (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2), as well as the Illinois provisions which prohibit "special legislation" "when a general law is or can be made applicable" ...