                                          2015 IL App (3d) 140614

                                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.


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     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




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       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


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              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.


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¶ 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




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       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


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       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.




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