{ "id": 3386473, "name": "MARILYN ADLER et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION et al., Defendants.-(ILLINOIS BELL TELEPHONE COMPANY et al., Defendants-Appellants.)", "name_abbreviation": "Adler v. Illinois Commerce Commission", "decision_date": "1977-08-26", "docket_number": "No. 76-961", "first_page": "167", "last_page": "172", "citations": [ { "type": "official", "cite": "52 Ill. App. 3d 167" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851180 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0423-01" ] }, { "cite": "360 F.2d 168", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 825720 ], "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/f2d/360/0168-01" ] }, { "cite": "185 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "25 Ill. 2d 521", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5352697 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/25/0521-01" ] }, { "cite": "123 N.E.2d 312", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "4 Ill. 2d 426", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701605 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0426-01" ] }, { "cite": "12 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850355 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0483-01" ] }, { "cite": "57 Ill. App. 2d 210", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2598060 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0210-01" ] }, { "cite": "304 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4997869 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ill/304/0312-01" ] }, { "cite": "358 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "693" }, { "page": "691" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815842 ], "weight": 5, "pin_cites": [ { "page": "672-73" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0665-01" ] }, { "cite": "92 S. Ct. 1171", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "31 L. Ed. 2d 231", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "405 U.S. 954", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11743493, 11743150, 11743215, 11743283, 11743572, 11743349, 11743095, 11743421, 11743646 ], "opinion_index": 0, "case_paths": [ "/us/405/0954-07", "/us/405/0954-02", "/us/405/0954-03", "/us/405/0954-04", "/us/405/0954-08", "/us/405/0954-05", "/us/405/0954-01", "/us/405/0954-06", "/us/405/0954-09" ] }, { "cite": "449 F.2d 906", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 799101 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "909" }, { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/f2d/449/0906-01" ] }, { "cite": "213 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 2d 320", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5294028 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-2d/64/0320-01" ] } ], "analysis": { "cardinality": 638, "char_count": 13306, "ocr_confidence": 0.884, "pagerank": { "raw": 1.1244584668804886e-07, "percentile": 0.5742751797498619 }, "sha256": "96be0755a6be5c1c191fd2789eea63ec922d560276ce47a5343faeb75ef7c094", "simhash": "1:a7dc1fd0a23f579a", "word_count": 2125 }, "last_updated": "2023-07-14T20:29:20.985264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARILYN ADLER et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION et al., Defendants.\u2014(ILLINOIS BELL TELEPHONE COMPANY et al., Defendants-Appellants.)" ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiffs filed this action on behalf of themselves and all others similarly situated, alleging that the Chicago message tax (Chicago Municipal Code, ch. 132, \u00a7132-30 et seq.) is improperly being collected on credit card and collect calls originating outside the city limits. Defendants brought motions to dismiss which the trial court originally granted, but later vacated. However, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308), the court certified for appeal the questions raised in the motions to dismiss and we granted leave to appeal. Defendants contend: (1) the Illinois Commerce Commission (Commission) has primary and exclusive jurisdiction to hear this matter; and (2) plaintiff lacks standing to bring suit.\nSection 8 \u2014 11\u20142(1) of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 8\u201411\u20142(1)) authorizes municipalities to tax \u201cthe business of transmitting messages by means of electricity, at a rate not to exceed 5% of the gross receipts from such business originating within the corporate limits of the municipality.\u201d Pursuant to this authority, the City of Chicago enacted an ordinance imposing a 5% tax on the business of transmitting messages by means of electricity on all messages \u201coriginating within the corporate limits of the city.\u201d Chicago Municipal Code, ch. 132, \u00a7132\u201430 et seq.\nSection 36(a) of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 36(a)) authorizes the telephone company to transfer the tax, plus the costs of accounting, and any increase in payments to governmental bodies resulting from the tax, to their customers in the form of an \u201cadditional charge.\u201d It must, however, file with the Commission a copy of the municipal ordinance and a supplemental rate schedule specifying the \u201cadditional charge.\u201d Although the charge is effective upon filing, the Commission may investigate whether the charge is correctly specified, and if not, it may order a refund. Ill. Rev. Stat. 1973, ch. 111 2/3, par. 36(a).\nIn accordance with these provisions, Illinois Bell Telephone (Bell) filed a supplemental schedule with the City of Chicago effective June 1,1973.\nOn September 5, 1973, plaintiff Marilyn Adler, brought the instant action seeking an injunction, an accounting, and other relief. She alleged th\u00e1t Bell \u201cis consistently adding and imposing a tax equal to the rate provided in the Ordinance [sic] on messages originating outside the corporate limits of the city where the calls are collect or on telephone credit cards billed to a telephone number within the corporate limits of the city.\u201d (Emphasis hers.) On August 30, 1973, she had filed a similar complaint with the Commission (Marilyn Adler v. Illinois Bell Telephone Company (August 30, 1973), No. 58529).\nDefendants filed motions to dismiss arguing that: (1) the Commission had primary and exclusive jurisdiction in this matter; (2) plaintiff lacked standing; and (3) the complaint did not state a proper class action. After allowing plaintiff to amend, the court dismissed her complaint and continued generally her motion to vacate the dismissal pending the outcome of the Commission hearing.\nAfter conducting a hearing, the Commission refused to decide the matter, finding that there were no \u201ctechnical interpretations to be made by the Commission within the purview of its expertise \u00b0 \u00b0 Believing the issue to be solely one of statutory interpretation, they held it was \u201cnot for this commission, but a court of law to decide, * * They did however retain jurisdiction to order refunds depending upon the court\u2019s interpretation of the ordinance.\nThe Commission denied plaintiff\u2019s petition for rehearing on May 9, 1975, and she did not appeal. Rather, she proceeded with this action in circuit court. The court allowed her motion to vacate on July 16, 1975. Thereafter, she amended her complaint to its present form. Counts I and III allege that the Chicago message tax is being collected on credit card and collect calls originating outside the city limits in contravention of section 8 \u2014 11\u20142(1) of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1973, ch. 24, par. 8\u201411\u20142(1)) and section 132 \u2014 30 et seq. of the Chicago Municipal Code (Chicago Municipal Code, ch. 132, \u00a7132\u201430 et seq.); count II alleges that the ordinance is unconstitutionally administered and enforced; and count IV alleges that the ordinance is unconstitutionally administered and enforced, and unconstitutionally vague. Plaintiff also added Leonard Adler as party plaintiff.\nDefendants renewed their motions to dismiss. On July 14, 1976, the court denied these motions holding that: (1) the circuit court has jurisdiction to hear this matter; (2) the plaintiffs have standing to maintain this suit; and (3) the amended complaint states a proper class action.\nOpinion\nDefendants first contend that the circuit court lacks jurisdiction to consider this matter because section 72 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 76) vests the Commission with exclusive and primary authority to consider excessive rate charges. (Cummings v. Commonwealth Edison Co. (1966), 64 Ill. App. 2d 320, 213 N.E.2d 18.) Plaintiffs acknowledge the Commission\u2019s authority to consider excessive rate charges, but argue that the \u201cadditional charge\u201d is a tax on telephone subscribers, and not part of the rate charged for telephone services. They conclude therefore, that this matter is properly within the jurisdiction of the circuit court.\nPlaintiffs\u2019 argument, although raised in a different context, was considered and rejected in Agron v. Illinois Bell Telephone Co. (7th Cir. 1971), 449 F.2d 906, cert. denied (1972), 405 U.S. 954, 31 L. Ed. 2d 231, 92 S. Ct. 1171, which we find persuasive. There the court found that:\n\u201cThe Illinois statutes authorizing and imposing a tax on the occupation or business of transmitting messages by means of electricity are explicit. Ill. Rev. Stat. ch. 120, \u00a7467.2 and ch. 24, \u00a78\u201411\u20142 (1969). For instance, section 467.1 provides that: \u2018Taxpayer means a person engaged in the business of transmitting messages\u2019 and section 467.2 states that: \u2018A tax is imposed upon persons engaged in the business of transmitting messages in this State.\u2019 It would be difficult to interpret such specific language as imposing a tax on telephone subscribers. It may be that IBT normally \u2018passes on\u2019 to its subscribers the economic burden of the state and local occupation taxes just as every unsubsidized business must \u2018pass on\u2019 and recover from its customers every item of operating expense\u2014 including state and federal taxes \u2014 if it is to operate profitably. But the fact that the telephone subscriber ultimately bears the financial burden of the tax does not justify our ignoring the clear language of the Illinois statutes and holding that the tax is \u2018imposed\u2019 on subscribers\u201d. 449 F.2d 906, 909.\nThe court concluded that:\n\u201cThe \u2018 [additional charges * * * are simply a part of the price such subscribers must pay IBT to receive telephone service.\u2019 \u201d 449 F.2d 906, 912.\nMore importandy, the second district of this court recently decided the jurisdictional question plaintiff raises here in Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 358 N.E.2d 688. There the school district alleged that the defendant utilities,\nincluding Bell, were illegally collecting a 3% Wheaton utility tax on the use of utilities outside the city of Wheaton. The Wheaton tax differed only in amount from that imposed here on Bell. The court noted that the school district\u2019s allegation raised a question of whether the defendants were violating section 36(a) of the Illinois Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 36(a)) and held that:\n\u201cSuch questions would be for the Illinois Commerce Commission and not, initially, for the court to decide. The commission has exclusive jurisdiction over complaints of excessive rates charged by public utilities and the courts have jurisdiction over these matters only upon administrative review of the decision of the commission, that is, only after utilization and exhaustion of the remedies available before the commission. (Terminal R.R. Association v. Utilities Com., 304 Ill. 312 (1922); Adler v. Northern Illinois Gas Co., 57 Ill. App. 2d 210 (1965); Cummings v. Commonwealth Edison Co., 64 Ill. App. 2d 320 (1966); Malloy v. Ill. Bell Telephone Co., 12 Ill. App. 3d 483 (1973).) The court cannot usurp the functions of the Illinois Commerce Commission and determine whether the utilities tax has been charged for uses outside of Wheaton or whether a reasonable rate has been charged. Cummings v. Commonwealth Edison Co., 64 Ill. App. 2d 320 (1966).\u201d 44 Ill. App. 3d 665, 672-73, 358 N.E.2d 688, 693.\nWe agree and accordingly hold that the Commission has primary and exclusive authority to consider plaintiffs\u2019 allegations in counts I and HI.\nBoth briefs seem to suggest that our decision as to jurisdiction, if adverse to plaintiffs, would be dispositive of the entire complaint. We do not find this to be the case. Counts I and III allege, in essence, that defendants are collecting an improper rate for telephone services, and, as we noted, should have been dismissed for lack of jurisdiction. Count IV, however, is an action for declaratory judgment. It alleges that the Chicago message tax ordinance is unconstitutionally administered and enforced, and unconstitutionally vague. Whether or not this ordinance is constitutional is a question within the jurisdiction of the circuit court. (See Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 358 N.E.2d 688.) Similarly, insofar as count II alleges that the City of Chicago message tax is unconstitutional, as applied, it too presents a question within the jurisdiction of the circuit court. We therefore must now consider defendants\u2019 second contention that plaintiffs lack standing to challenge the constitutionality of this ordinance.\nDefendants contend that plaintiffs lack standing to challenge the constitutionality of this ordinance because plaintiffs are not taxpayers. They assert that only Bell, upon whom the incidence of the tax rests, has standing to challenge the constitutionality of the tax.\nWe disagree. Again the recent case of Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 358 N.E.2d 688, is dispositive of this issue. After analyzing the Illinois decisions on standing the court there concluded that the school district had standing to challenge the constitutionality of the utility tax ordinance and enabling statute. The court recognized that although a party must be directly affected by a statute or ordinance to challenge its constitutionality (Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 430, 123 N.E.2d 312, 314), it is not necessary that the one challenging the tax as unconstitutional be the initial taxpayer. (Crane Construction Co. v. Symons Clamp & Manufacturing Co. (1962), 25 Ill. 2d 521, 185 N.E.2d 139; Marquardt Corp. v. Weber County, Utah (10th Cir. 1966), 360 F.2d 168, 171.) Accordingly, where as here the validity of the \u201cadditional charge\u201d is totally dependent on the validity of the tax and where the initial taxpayer has no real interest in the controversy, \u201cthe courts in recent years have been more liberal in allowing persons indirectly affected to bring suit.\u201d 44 Ill. App. 3d 665, 670, 358 N.E.2d 688, 691.\nWe agree with this reasoning and therefore hold that plaintiffs have standing to challenge the constitutionality of the ordinance. Accordingly, we would allow those portions of the complaint to stand which challenge the constitutionality of the City of Chicago message tax. Chicago Municipal Code, ch. 132, \u00a7132\u201430 et seq.\nDefendants also list as a contention in their brief that plaintiffs do not constitute a proper class for purposes of a class action. However, they did not argue this point in either their brief or on oral argument and we therefore need not consider this issue here. (Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 243 N.E.2d 242.) Similarly, we need not discuss plaintiffs\u2019 argument that the circuit court has authority to impose an equitable trust over the monies they allege were improperly collected, because defendants concede this point in their reply brief.\nFor the foregoing'reasons, the order of the circuit court is affirmed in part, and reversed in part, and the cause is remanded to the circuit court for proceedings not inconsistent with this opinion.\nAffirmed in part; reversed in part and remanded.\nSULLIVAN, P. J., and WILSON, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellants City of Chicago officials.", "James R. Bryant, Jr., of Chicago, for appellant Illinois Bell Telephone Company.", "Max & Herman Chill, P. C., of Chicago (Max Chill, Herman Chill, and Donald B. Garvey, of counsel), for appellees." ], "corrections": "", "head_matter": "MARILYN ADLER et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION et al., Defendants.\u2014(ILLINOIS BELL TELEPHONE COMPANY et al., Defendants-Appellants.)\nFirst District (5th Division)\nNo. 76-961\nOpinion filed August 26, 1977.\nWilliam R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellants City of Chicago officials.\nJames R. Bryant, Jr., of Chicago, for appellant Illinois Bell Telephone Company.\nMax & Herman Chill, P. C., of Chicago (Max Chill, Herman Chill, and Donald B. Garvey, of counsel), for appellees." }, "file_name": "0167-01", "first_page_order": 189, "last_page_order": 194 }