                       Illinois Official Reports

                              Appellate Court



                  Claypool Drainage & Levee District v. Weber,
                           2015 IL App (3d) 140614



Appellate Court   CLAYPOOL DRAINAGE AND LEVEE DISTRICT, Plaintiff-
Caption           Appellee, v. STEVE WEBER, Will County Treasurer and ex officio
                  County Collector, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0614



Filed             August 20, 2015



Decision Under    Appeal from the Circuit Court of Grundy County, No. 13-MR-57; the
Review            Hon. Lance R. Peterson, Judge, presiding.



Judgment          Affirmed.




Counsel on        James Glasgow, State’s Attorney, of Joliet (Philip A. Mock, Assistant
Appeal            State’s Attorney, of counsel), for appellant.

                  Charles L. Schmidt, of Morris, for appellee.



Panel             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
     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

         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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       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 Pub. 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).

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¶ 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.
¶ 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 officers 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

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       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.




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