Opinion filed August 20, 2015 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
CLAYPOOL DRAINAGE AND ) Appeal from the Circuit Court LEVEE DISTRICT, ) of the 13th Judicial Circuit, ) Grundy County, Illinois, Plaintiff-Appellee, ) ) v. ) Appeal No. 3-14-0614 ) Circuit No. 13-MR-57 STEVE WEBER, Will County Treasurer ) and ex-officio County Collector, ) ) The Honorable Defendant-Appellant. ) Lance R. Peterson, Judge, Presiding. _____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Schmidt and Holdridge concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 Will County Treasurer, Steve Weber, appeals from the decision of the circuit court
granting a writ of mandamus to the plaintiff, Claypool Drainage and Levee District. The circuit
court held that the county treasurer's attempt to withhold funds from the drainage district for the
extension and collection of drainage district assessments was prohibited by section 9 of article
VII of the Illinois Constitution (Ill. Const. 1970, art. VII, § 9(a)). On appeal, the treasurer argues
since the district failed to appoint a district treasurer to collect the taxes and relinquished
collection responsibilities to the county treasurer, he may be lawfully reimbursed for services
provided to the drainage district. We hold that the treasurer's attempt to withhold funds violates
the state constitution and affirm. ¶2 BACKGROUND ¶3 The Claypool Drainage and Levee District was established in Grundy County by statute
in 1896. The district is responsible for maintaining proper storm water drainage within the
drainage district, which covers portions of Grundy and Will Counties, and is funded by the levy
of assessments on properties located within the district under section 5-19 of the Illinois
Drainage Code (70 ILCS 605/5-19 (West 2012)). ¶4 Prior to 1998, the district collected assessments by sending landowners and
municipalities invoices through the mail. In 1998, the district relinquished responsibility for
collection of drainage assessments to the Will County treasurer's office, and the county treasurer
began serving as collector of assessments for the district. Since that time, assessments have been
collected in the same manner as general property taxes and are shown as a line item on real estate
tax bills issued by the county treasurer. ¶5 In 2013, the county treasurer sent a letter to the district stating that he intended to charge
a "25-cent per parcel fee" for the cost of providing collection of assessment services in
accordance with section 4-37 of the Drainage Code. In the letter, the treasurer quoted a portion
of section 4-37, which states that the collector "shall be reimbursed by each district and
subdistrict for the actual costs for his services" and that the costs shall be paid out of district
funds (70 ILCS 605/4-37 (West 2012)). 1 In response, the drainage district filed a two-count
1 Prior to 2013, no fees for collection services were withheld in accordance with a 1998
settlement agreement between the former Will County treasurer and the district, which prevented
the treasurer from charging the fee.
complaint against the treasurer in his capacity as the Will County treasurer and ex officio
collector for the district. Count I was dismissed by defendant's motion and has not been
appealed. Count II alleged an action for mandamus, seeking to compel the treasurer to pay over
to the district the full amount of the drainage assessments. ¶6 The parties filed cross-motions for summary judgment on the mandamus claim. The
district argued that the treasurer misconstrued its authority under section 4-37 of the Drainage
Code and that, even if the code allowed the treasurer to charge for assessment collections, it
would violate article VII, section 9(a) of the state constitution. Attached to the district's motion
was an affidavit signed by Robert Koerner, the commissioner of the drainage district. Koerner
averred that the county treasurer performed no other services on behalf of the district other than
the collection and remittance of annual drainage assessments. He further stated that accounts
payable, bank reconciliations, and other banking and account functions were performed by
drainage district, not the county treasurer. ¶7 In his motion, the treasurer claimed that retaining the cost of collection from the district
was authorized by statute and did not violate article VII, section 9(a) of the constitution because
the district chose to have the county treasurer collect its levied assessments rather than collecting
them through an appointed district treasurer as permitted under section 4-38 of the Drainage
Code (70 ILCS 605/4-38 (West 2012)). ¶8 Following a hearing, the trial court granted the district's motion for summary judgment
and denied the treasurer's motion. In ruling in favor of the district, the trial court noted that the
basis for its decision was that the parties did not dispute that the Will County treasurer was only
responsible for levying and collecting the assessments. The court granted mandamus relief and
entered an order instructing that the office of the Will County treasurer could not charge or
withhold a fee for the extension and collection of drainage assessments. ¶9 ANALYSIS ¶ 10 The issue as framed by the parties is whether article VII, section 9(a) of the state
constitution precludes a county from charging a drainage district for the cost of extension and
collection of assessments levied by the district where the district has the ability to collect its own
taxes. ¶ 11 Article VII, section 9(a) of the Illinois Constitution states:
"(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, § 9(a). ¶ 12 As it relates to the compensation of county tax collectors, section 4-37 of the Drainage
Code provides:
"County collector to collect assessments. Except as hereinafter provided in
Section 4-38, the County Collector of the County in which any of the lands of the
district are situated shall collect all drainage assessments provided for by this Act
and assessed against lands in his county. His official bond as County Collector
shall stand as his bond as district collector. The collector shall perform such other
duties and functions as are specified elsewhere in this Act. The collector shall be
reimbursed by each district and subdistrict for the actual costs for his services.
Such costs shall be paid out of the funds of the district for which the services were
rendered." 70 ILCS 605/4-37 (West 2012) (amended by Public Act 83-739, § 1
(eff. Jan. 1, 1984)).
In conjunction with the collection provisions of section 4-37, section 4-38 provides that
the commissioner of the drainage district "shall appoint a treasurer of the district." 70
ILCS 605/4-38(a) (West 2012). The district treasurer "may also serve as district collector
and then shall collect all drainage assessments provided for by this Act, and perform such
other duties and functions as are imposed upon district treasurers and collectors
elsewhere in this Act." 70 ILCS 605/4-38(b) (West 2012). ¶ 13 In City of Joliet v. Bosworth, 64 Ill. 2d 516 (1976), the Illinois Supreme Court analyzed
the collection of taxes as a county function under article VII, section 9(a) of the state
constitution. In that case, the parties addressed the constitutionality of a portion of a statute
concerning "fees and salaries" which allowed counties to bill the taxing district for its
proportionate share of actual costs incurred by the county in extending and collecting taxes on
behalf of all taxing districts. The supreme court held that article VII, section 9(a) of the
constitution makes the collection of taxes a county function to be supported solely by county
taxes and precludes counties from being reimbursed by other taxing districts for the collection of
assessments. Id. at 524. The court concluded that the fees and salaries statute was
unconstitutional, finding that the intention of article VII, section 9(a) was to eliminate the
practice of counties charging local taxing districts for tax collection services. Id. at 529. In
reaching its conclusion, however, the court noted that "[s]ection 9(a) of article VII is, of course,
limited in scope to the particular functions specified therein, and does not purport in any way to
limit or restrict counties and local taxing districts from contracting among themselves as to other
matters." Id. at 531. *6 ¶ 14 The interrelation of article VII, section 9(a) and a county's ability to withholding funds
from a taxing district was also discussed in Century Community Unit School District No. 100 v.
McClellan, 27 Ill. App. 3d 255 (1975). There, the trial court granted a writ of mandamus to a
local school district, ordering the county treasurer to pay over funds withheld from the school
district to cover the costs of assessment, extension and collection of the taxes levied by the
district. Id. at 257. On appeal, the court held that the district was entitled to the writ under the
dictates of the constitution. The court interpreted article VII, section 9(a) and concluded:
"As we understand this constitutional provision, it means that fees not based
upon funds disbursed or collected and not based upon the levy or extension of
taxes may be collected, providing they are collected according to a law or
ordinance, deposited with the treasurer of the unit, and are not used to pay
corporate officer or employees or to pay office expenses." Id. ¶ 15 In this case, the treasurer attempted to charge the drainage district for services rendered in
the "extension" and "collection of assessments" for the district. In light of the plain language of
the Illinois Constitution, the county treasurer may not charge fees based on the collection, levy or
extension of taxes. See People v. Molnar, 222 Ill. 2d 495, 518 (2006) (in construing a statute, we
must look to the terms according to their plain and ordinary meaning). Thus, the trial court
properly granted summary judgment in the district's favor and granted mandamus relief
compelling the treasurer to pay over all drainage assessments collected on its behalf. ¶ 16 Nevertheless, the treasurer maintains that reimbursement for the actual costs of services
is expressly permitted under sections 4-37 and 4-38 of the Drainage Code and does not violate
article VII, section 9(a) because the drainage district is permitted to collect its own taxes but has
delegated that duty to the county treasurer under the statutory scheme. He cites Little v. East
Lake Fork Special Drainage District, 166 Ill. App. 3d 209 (1988) in support of his position. ¶ 17 In Little, the county treasurer filed suit against the drainage district for the cost of his
services for the district. There, the treasurer not only collected drainage assessments but also
served as treasurer for the drainage district. The services provided by the county treasurer
extended beyond levy and collection and included services such as maintaining books for each
account, maintaining computer records, handling investments, maintaining money market
accounts, sending out special billings, collecting and depositing funds, disbursing checks and
preparing the financial reports for the district. Id. at 213. The court held that the reimbursement
of the treasurer for the actual costs of such services under sections 4-37 and 4-38 of the Drainage
Code was not prohibited by article VII, section 9(a) of the Illinois Constitution. Id. at 217-18. ¶ 18 Here, it is undisputed that the Will County treasurer provides no services to the drainage
district in the capacity of district treasurer. All recording, banking and accounting functions are
provided by the district treasurer, who has been appointed by the district commissioner under
section 4-38. The county treasurer acts solely as the collector for the district, and the only
service the treasurer provides is the execution and collection of assessments. Unlike the county
officer in Little, the county treasurer in this case is charging fees solely for the service of levying
and collecting drainage assessments, rather than the additional services of district treasurer.
Thus, contrary to Little, the application of sections 4-37 and 4-38 to allow the county treasurer to
charge a drainage district for the collection of assessments intrudes on the constitutional
limitations of section 9(a) of article VII of the Illinois Constitution. As the supreme court stated
in Bosworth, the intent expressed in section 9(a) is to "preclude counties from seeking, in any
form, reimbursement from the various taxing bodies for county services rendered in the
collection of taxes." Bosworth, 64 Ill. 2d at 524. In this case, the treasurer cannot charge the
drainage district a fee for the general service of collecting assessments without violating that
express intention. ¶ 19 CONCLUSION ¶ 20 The judgment of the circuit court of Grundy County is affirmed. ¶ 21 Affirmed.