Appeal from the Circuit Court of Cook County; the Hon. George
J. Schaller, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Plaintiff, W.F. Smith and Company, appeals from orders of the circuit court of Cook County which dismissed its complaint against defendant, Edward J. Rosewell, county treasurer and ex-officio county collector of Cook County, Illinois, and which denied its motion to vacate the dismissal. The issues presented are: (1) whether the circuit court had equitable jurisdiction to grant the relief sought in the complaint; and (2) whether the cause of action asserted in the complaint constituted an improper collateral attack on other judgments and was barred by the doctrine of res judicata.
On March 30, 1982, plaintiff, individually and on behalf of all Cook County taxpayers similarly situated, filed its "Complaint in Chancery Class Action." In count I of the complaint, plaintiff alleges that it is the owner or agent of the owner and the assessee of three parcels of real estate located in Cook County, Illinois, and that the parcels are identified by the following permanent real estate index numbers:
parcel a: 20-16-309-014-0000 (volume 422) parcel b: 20-21-108-001-0000 (volume 501) parcel c: 20-27-403-006-0000 (volume 267)
Plaintiff further alleges: that on or about March 17, 1982, it applied to defendant for general real estate tax bills for 1980 on parcels a and c and for a special assessment bill "for warrant 58204, installment 14" for parcel b; that these bills included a charge of $10 attributed to costs; that each charge attributed to costs was without any statutory or other legal authority; that, in the alternative, each charge attributed to costs was in excess of the amount which can be lawfully charged under statutory or other legal authority; that on or about April 1, 1982, *fn1 plaintiff paid the bills, including the amounts charged as costs; that the payments were accompanied by a written reservation of all rights to seek refunds of the amounts charged as costs; and that defendant has been unjustly enriched by the collection of the amounts charged as costs. In the prayer for relief of count I, plaintiff requests a judgment against defendant in the amount of $30, plus costs of suit. Count II contains allegations relevant to the issue of whether this action may be maintained as a class action, and it is not involved in this appeal.
Subsequently, defendant filed a motion to dismiss the amended complaint. Several exhibits were attached to the motion, and they disclose the following facts. On February 22, 1982, defendant filed his "Application for Judgment and Order of Sale," seeking judgment and order of sale against lands and lots upon which the taxes remained due and unpaid for the year 1980 and prior years, as described in the delinquency list submitted with the application. On the same date, the circuit court entered an order which stated:
"IT IS FURTHER ORDERED that all persons interested in said lands and lots and desiring to make objections to judgment and order of sale against the same, shall file their written objections together with two copies thereof, in this Court, on or before March 5, 1982 at the hour of 10:00 o'clock A.M.; provided that, except where the real estate is not subject to taxation said written objections shall be accompanied by the official original or duplicate tax collector's receipt as provided by Sections 194 and 235 of the Revenue Act of 1939, as amended; or, if it should be impossible to secure the receipts, then in lieu thereof, the objections shall be accompanied by an affidavit of the tax objector or his attorney stating that 100 percent of all taxes to which objections are made have been paid under protest as provided by statute."
On March 5, 1982, Judge Joseph Schneider of the circuit court entered a "Judgment and Order of Sale" against lands and lots upon which the general real estate taxes remained due and unpaid for the year 1980. The judgment order stated: (1) "no sufficient defense has been made, or cause shown why judgment should not be entered against said lands and lots for taxes, interest, penalties and costs due and unpaid thereon for the year or years in said delinquent list set forth"; (2) "judgment * * * is * * * entered against the aforesaid tract, or tracts, or lot, or lots of land, or parts of tracts or lots * * *, in favor of the PEOPLE OF THE STATE OF ILLINOIS, for the sum annexed to each, being the amount of taxes, interest, penalties, and costs due severally thereon"; and (3) "said several tracts or lots of land, or so much of each of them, as shall be sufficient to satisfy said judgment and statutory interest thereon, [shall] be sold as the law directs, if said judgment and interest thereon are not paid prior to the time of said sale." Since the general real estate taxes for 1980 on parcels a and c had not been paid as of March 5, 1980, this judgment order was applicable to those parcels.
Two other exhibits were attached to the motion to dismiss. The first is an order of the circuit court entered on April 15, 1981, concerning the application for judgment and order of sale against all the lands and lots upon which the special assessment taxes remain due and unpaid for the year 1980, and the second is a "Judgment and Order of Sale" entered on May 1, 1981, against the lands and lots for which the special assessment taxes remain due and unpaid for the year 1980. These exhibits, however, are not pertinent to parcel b or to this case. Defendant does not contest plaintiff's assertions that parcel b involves a special assessment installment returned delinquent in 1981 and that at the time of the payment of the amount charged as costs on parcel b, no judgment had been entered with respect to that parcel.
On June 16, 1982, Judge George Schaller of the circuit court entered an order dismissing the complaint with prejudice. At a hearing on that date, Judge Schaller stated that the general real estate tax bills and assessment bill involved were for 1980, that there is statutory authority to award costs, and that the complaint constituted "nothing more than a collateral attack on [the judgment orders referred to above]." He also stated that plaintiff "should have paid under protest." As noted, however, the parties to this appeal agree that at the time the bills were paid, no judgment order had been entered with respect to parcel b.
Plaintiff's case is premised on his contention that Illinois statutes only authorize a total charge of 44 cents for costs, and that there are no statutes authorizing a charge of 10 dollars for costs. Plaintiff refers us to section 2 of "An Act concerning fees and salaries, and to classify the several counties of this state with reference thereto" (Ill. Rev. Stat. 1981, ch. 53, par. 40) and section 3 of "An Act to provide for the fees of the sheriff, recorder of deeds and county clerk in counties of the third class" (Ill. Rev. Stat. 1981, ch. 53, par. 73). Section 22, in relevant part, provides:
"For printer for advertising delinquent lists * * *; for town lots * * *; in counties of the third class, 40¢ per column line, to be taxed and collected as costs."
According to plaintiff, this provision authorizes defendant to collect 40 cents per lot. *fn2 Section 3, ...