Appeal from the Circuit Court of Kane County, the Hon. John A.
Krause, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendants George B. Kramer and Robert D. Critton, respectively the sheriff and treasurer of Kane County, appealed (Rule 302(a), 87 Ill.2d R. 302(a)) from the judgment of the circuit court of Kane County holding unconstitutional a portion of section 19 of "An Act in relation to the compensation of Sheriffs, Coroners, County Treasurers, County Clerks, Recorders and Auditors with their necessary clerk hire, stationery, fuel and other expenses, in counties of less than 1,000,000 inhabitants" (Ill. Rev. Stat. 1979, ch. 53, par. 37), and plaintiff, Cardunal Savings & Loan Association, cross-appealed. In its complaint, as amended, plaintiff alleged that on and after the effective date of article VII, section 9(a), of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 9(a)), under the authority of section 19, defendant sheriff collected illegal commissions from judicial sales and paid them over to the defendant treasurer. Plaintiff sought certification as a class action, the enjoining of defendants from further collection of the illegal fees, an accounting of all such fees, the establishment of a segregated fund for fees collected, and reasonable attorneys' fees. In pertinent part section 19 provided:
"In addition to the above fees there shall be allowed to the sheriffs in counties of the first and second class, a commission of 3% on all sales of real and personal property, which shall be made by virtue of any judgment of a court, where the money arising from such sales does not exceed $1000. In all cases where the amount of such sale exceeds that sum, then 1 1/2% commission on the excess only shall be allowed. On any sale of real estate which is made by virtue of any judgment of a court, such commission shall not exceed $400. However, in all cases where the judgment is settled by the parties replevied, stopped by injunction or paid, or where the property levied upon is not actually sold, the sheriff shall be allowed the fee for levying and mileage, together with half the commission on all money collected by him or her which he or she would be entitled to if the same were made by sale in the enforcement of a judgment; except the necessary expenses for keeping personal property, to be ascertained and allowed by the court which entered the judgment." (Ill. Rev. Stat. 1979, ch. 53, par. 37.)
Effective January 1, 1982, section 19 was amended to provide:
"In addition to the above fees there shall be allowed to the sheriff a fee of $600 for the sale of real estate which shall be made by virtue of any execution or any judgment of a court." Ill. Rev. Stat. 1981, ch. 53, par. 37.
Article VII, section 9(a), of the Constitution of 1970 provided:
"(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).
The parties stipulated that on or about October 6, 1981, the defendant sheriff conducted a sale of real estate pursuant to a judgment for foreclosure and sale, and issued a certificate of sale to plaintiff. Plaintiff paid the defendant sheriff a commission in the amount of $600 which was paid over to defendant treasurer. It was further stipulated that between September 1, 1981, and December 31, 1981, a number of sales were conducted by the defendant sheriff, and fees based on the amendment to section 19 were collected and paid over to the defendant treasurer. The reports of sale were approved by the court and none of the parties who paid the fees were reimbursed by means of redemption of the property foreclosed. Some of the fees in question were charged on the basis of the statutory provision prior to its amendment, and some fees were charged on the basis of its provisions subsequent to its amendment.
The court found that the plaintiff class was so numerous that joinder of all members was impractical, that there were questions of fact or law common to the class, and that a class action was an appropriate method for the fair and efficient adjudication of the controversy. It certified as the plaintiff class those persons who paid fees to the sheriff on or after the effective date of article VII, section 9(a), of the 1970 Illinois Constitution for sales of real estate conducted by the sheriff of Kane County pursuant to judgments for foreclosure of said real estate.
It found unconstitutional that portion of section 19 of the Act which was in force and effect from the enactment of the 1970 Illinois Constitution through December 31, 1981, and held "that because of the unconstitutionality of the above referred to section, the Court therefore lacked jurisdiction to approve the above fees paid to the sheriff for services in the sale of the real estate under the various decrees of foreclosure pertaining to each of the persons in the plaintiff class."
The court also found that for the period from September 1, 1981, through December 31, 1981, the defendant sheriff unlawfully charged $600 fees of persons and held that the fees were unlawful because they were based upon a statute which did not become effective until January 1, 1982.
It ordered that the total sum of the fees paid to the sheriff be paid to plaintiffs' attorneys, directed them to withhold attorney fees and expenses and disburse the remainder to the members of the plaintiff class. It denied plaintiffs' motion to expand the classes of plaintiffs and defendants to include as plaintiffs all who had paid the illegal fees to any sheriff of a county of the "first or second" class as defined in the statutes and to include as defendants those sheriffs and treasurers who accepted those fees. Defendants appealed and plaintiff cross-appealed. 87 Ill.2d R. 302(a).
There is no question that under DeBruyn v. Elrod (1981), 84 Ill.2d 128, the fee provision here involved is invalid. Defendants, citing Johnston v. City of Bloomington (1979), 77 Ill.2d 108, contend, however, that this action to recover the fees is an impermissible collateral attack on final judgments of the circuit court. In Johnston, plaintiffs sought to recover fines paid under an ordinance which, subsequent to the payment of the fines, was held to be unconstitutional. This court held that a court which had jurisdiction over the parties and subject matter at the prior proceedings at which the fines were assessed "is empowered to make either a correct or an erroneous decision and the fact that the statute or ordinance upon which the decision is based was void does not serve to deprive it of jurisdiction. See Annot. 167 A.L.R. 517, 533 (1947)." (Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 112.) Defendants argue that the courts> which approved the foreclosure sales had jurisdiction over the parties and subject matter, that the final order in the foreclosure actions was the order approving the sale and distribution (DeBruyn v. Elrod (1981), 84 Ill.2d 128, 137), and that, under Johnston, these judgments cannot be collaterally attacked on the ground that the circuit court had no authority to award fees under a statute subsequently held void.
Plaintiff argues that the allegations in its amended complaint attacking the jurisdiction of the court in the foreclosure proceedings permit the collateral attack here and renders inapplicable our statement in DeBruyn, that "[p]laintiffs' complaint * * * contained no allegations attacking the jurisdiction of the court which entered the judgment of foreclosure ...