Appeal from the Circuit Court of Cook County; the Hon. George
A. Higgins, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, village of Oak Lawn, brought this action against Edward Rosewell, county collector and county treasurer of Cook County, and the county of Cook, challenging the constitutionality of a statute which authorizes the collection of a penalty on delinquent real estate taxes and the payment of those penalties collected into the county treasury. Plaintiff sought declaratory and injunctive relief, repayment of all such penalties collected by the defendants on behalf of the village and certification of this action as a class action. On July 18, 1983, the trial court granted defendants' motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615) and entered judgment for defendants. We affirm.
As alleged in plaintiff's amended complaint, section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 705) establishes a penalty on delinquent real estate taxes which accrues at the rate of 1 1/2% per month, and which is to be paid by the county collector into the county treasury for county purposes. The statute provides:
"All real estate upon which the first installment of taxes for the year 1950 remains unpaid on the first day of July 1951 shall be deemed delinquent as to such first installment and such unpaid first installment shall bear interest after the first day of July 1951, at the rate of 1 1/2% per month until paid or forfeited, and all real estate upon which the first installment of taxes for years subsequent to the year 1950 remains unpaid on the first day of June annually shall be deemed delinquent as to such first installment and except as may be provided pursuant to Section 224.1, and such unpaid first installment shall bear interest after the first day of June annually at the rate of 1 1/2% per month until paid or forfeited; and all real estate upon which the second installment of taxes remains due and unpaid on the first day of September, annually, shall be deemed delinquent as to such second installment, and such unpaid taxes as to such second installment shall bear interest after the first day of September, at the rate of 1 1/2% per month until paid or forfeited. * * * And all such collections on account of interest shall be paid into the county treasury to be used for county purposes * * *."
Plaintiff alleges that since the effective date of the 1970 Illinois Constitution, the defendants have collected tax funds on behalf of plaintiff and of all units of local government and school districts similarly situated, including interest on delinquent tax bills. Plaintiff further alleges that defendants' retention of the interest on delinquent taxes pursuant to section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 705) violates the provisions of article VII, section 9, of the 1970 Illinois Constitution, which provides in part:
"(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).
Defendants moved to dismiss plaintiff's amended complaint for failure to state a claim, based on the fact that the interest authorized by section 224 of the Revenue Act of 1939 did not constitute a "fee" which was assessed against plaintiff within the meaning of article VII, section 9(a), and that plaintiff therefore lacked standing to bring the instant action because it had no claim to or interest in funds specifically authorized for "county purposes." The trial court granted defendants' motion, and plaintiff appeals.
Plaintiff contends that the late collection charge which is added to delinquent real estate taxes is derived from the tax collection and disbursement process and therefore constitutes a "fee" based upon funds collected in violation of section 9(a) of article VII of the Illinois Constitution. Plaintiff also argues that the retention by the county of interest on late payments of taxes constitutes an unlawful "skim off" whereby the county is receiving a "windfall" that has no relationship to its own tax levying or budgeting process, and that the county's practice violates equal protection by discriminating against those taxing bodies where there are late payments of taxes.
Defendants argue that the statutory penalty at issue, which is imposed directly against delinquent taxpayers, is not a fee charged to local government units and is not, therefore, unconstitutional.
Plaintiff relies principally on language contained in the appellate court's decision in Board of Commissioners of Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App.3d 409, 437 N.E.2d 923, aff'd (1983), 96 Ill.2d 378 (hereinafter referred to as Wood Dale I), which was the first of two appeals in a case involving the collection and retention of interest earned on tax collections which were invested by the county treasurer of Du Page County prior to its distribution of such funds to the taxing body. *fn1 Plaintiffs there maintained that by withholding interest from the local taxing districts and "diverting" such interest to the county treasury instead, the county was, in effect, charging the districts a "fee" based upon funds collected and on the levy and extension of taxes, in violation of article VII, section 9(a). The appellate court agreed, and rejected an interpretation of the treasurers act (Ill. Rev. Stat. 1979, ch. 36, par. 22.1), which authorized the retention of such interest. The court stated its belief that,
"* * * whether the retention of interest that is challenged here is a prohibited fee according to article VII, section 9(a), should hinge on a consideration of the policies intended to be served by that provision rather than on artificial semantic distinctions based on cases decided long before its adoption." (Emphasis added.) (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App.3d 409, 413.)
The appellate court then considered the rationale contained in City of Joliet v. Bosworth (1976), 64 Ill.2d 516, 356 N.E.2d 543, in which the supreme court struck down a portion of the fees and salaries act (Ill. Rev. Stat., 1974 Supp., ch. 53, par. 39(a)) which allowed counties to bill each taxing district within the county for its proportionate share of the costs incurred in extending and collecting taxes. Looking to the constitutional hearings preceding the enactment of article VII, section 9(a), the court in Bosworth found that the intention of that provision was "to preclude counties from seeking, in any form, reimbursement from the various taxing bodies for county services rendered in the collection of taxes." (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App.3d 409, 414, citing City of Joliet v. Bosworth, 64 Ill.2d 516, 524, 356 N.E.2d 543.) Recognizing the broad construction which had in the past been given to section 9(a), the Wood Dale I court concluded:
"To be a `fee' based upon funds collected or upon the levy or extension of taxes, it would seem sufficient that a charge is derived from the tax collection and disbursement process; the interest `charge' in this case is clearly tied to the collection process, as the interest accrues to the county by virtue of the tax collection process as it is presently structured." (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App.3d 409, 415.)
The court also found that the tax collection process mandated by the treasurers act, if applied to noncounty funds, violated the equal protection clauses of the Federal and Illinois constitutions by allowing counties to receive interest on their collected tax monies while denying the benefit to other local government units. (107 Ill. App.3d 409, 416.) Plaintiff here reasons that there is no difference in substance between the situation in Wood Dale I and the retention of interest on tax funds for ...