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Board of Commissioners v. County of Du Page

OPINION FILED MAY 27, 1983.

THE BOARD OF COMMISSIONERS OF THE WOOD DALE PUBLIC LIBRARY DISTRICT ET AL., APPELLEES,

v.

THE COUNTY OF DU PAGE ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John Teschner, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

The board of library trustees of the Wood Dale Public Library District, and the library district, a municipal corporation, on its own relation and on behalf of all municipal corporations and other local governmental bodies similarly situated, filed a two-count complaint in the circuit court of Du Page County against defendants, the County of Du Page, its board of commissioners and its treasurer and ex-officio collector. In count I it was alleged that the county treasurer, as ex-officio county collector for the defendant county, collected tax monies for and on behalf of the members of the plaintiff class, invested the tax monies collected on behalf of the plaintiffs, but failed, as required by section 2 of "An Act relating to certain investments of public funds by public agencies" (the Investment of Public Funds Act) (Ill. Rev. Stat. 1981, ch. 85, par. 902), to distribute the earnings on the investments of these monies. In count II it was alleged that the county treasurer's practice of retaining interest earned on the investment of funds collected for members of the plaintiff class violated section 9(a) of article VII of the 1970 Illinois Constitution. Both counts prayed for a declaratory judgment that the retention of interest by the county treasurer was improper, a permanent injunction enjoining the defendant from retaining interest earned upon funds collected for the plaintiffs, an accounting for the period "from October 1, 1972 to and including the date of the conclusion of this litigation * * *," and for other relief. The defendants moved to dismiss the complaint on the ground, inter alia, that it did not state a cause of action. The circuit court dismissed the complaint with prejudice.

On appeal, the appellate court noted the apparent conflict between section 6.1 of "An Act concerning county treasurers * * *" (the County Treasurers' Act) (Ill. Rev. Stat. 1981, ch. 36, par. 22.1) and section 2 of the Investment of Public Funds Act (Ill. Rev. Stat. 1981, ch. 85, par. 902). The court held that under the defendants' proposed construction of the County Treasurers' Act, permitting the county treasurer to retain interest earned on the investment of monies collected for other taxing districts would result in the charging of fees for the collection of those taxes, in violation of section 9(a) of article VII of the 1970 Illinois Constitution. The appellate court refused to place an unconstitutional construction on the pertinent sections of the County Treasurers' Act, and construed the statutory provisions to provide that the Investment of Public Funds Act controlled. It reversed the judgment of the circuit court and remanded the cause with directions. (107 Ill. App.3d 409.) We granted defendants' petition for leave to appeal. 87 Ill.2d R. 315.

Section 6.1 of the County Treasurers' Act provides:

"All earnings accruing on any investments or deposits made by the County Treasurer whether acting as such or as County Collector, of county monies as in this Act is defined, shall be credited to and paid into the County Treasury for the benefit of the county corporate fund to be used for county purposes, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund." (Ill. Rev. Stat. 1981, ch. 36, par. 22.1.)

Section 1 of the Act, in pertinent part, provides:

"The term `county moneys' shall include all moneys to whomsoever belonging, received by or in possession or control of the incumbent of the office of county treasurer when acting as such or in any other official capacity incident to his incumbency of the office of county treasurer." (Ill. Rev. Stat. 1981, ch. 36, par. 17.)

Section 2 of the Investment of Public Funds Act provides, in pertinent part:

"All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund." (Ill. Rev. Stat. 1981, ch. 85, par. 902.)

Section 1 of the Act provides:

"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." Ill. Rev. Stat. 1981, ch. 85, par. 901.

Article VII, section 9(a), of the Illinois Constitution provides:

"(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes." Ill. Const. 1970, art. VII, sec. 9(a).

In its well-reasoned opinion the appellate court held that the statutes are in pari materia and that "it is difficult to reconcile them by familiar rules of statutory construction" (107 Ill. App.3d 409, 411); that the retention by the county collector of the interest earned by the deposited funds "is functionally a charge based upon the levy and disbursement of taxes" (107 Ill. App.3d 409, 415); and that it was the intent of the framers that article VII, section 9(a), proscribe the retention of those earnings (107 Ill. App.3d 409, 416). The appellate court concluded that to hold that section 6.1 ...


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