1 NOTI CE Decisi on fi led 04 /02/ 10. The textof this dec ision m ay be changed or
corrected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-09-0079 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

________________________________________________________________________ P&S G RAIN, LLC , an Il linoi s Limit ed ) Appeal from the Liability Compa ny, and V.W . BOW MA N O IL ) Circui t Court of COM PANY , a Missour i Corporation, ) W illi am so n C ou nt y. ) Plaintiffs- Appellants, ) ) v. ) No. 08-CH-100 ) TH E C OU NT Y O F W ILL IA M SO N, ) ILL INO IS, an Illinois U nit of L ocal ) Gov ernmen t, BRIA N A . HA ME R, Direc tor, ) Ill inois Department of Revenue, an Agency of ) St at e Go ve rn men t, an d THE BOARDS OF ) ED UC AT IO N O F JO HN ST ON CIT Y, ) MA RION, CR AB O RCH ARD , HERRIN, and ) CARTER VILLE SCHOO L DISTRICTS, ) Ho nora ble ) John Spe roni, Defendan ts-Appellees. ) Judge, presi ding.

__________________________________________________________________________ JUS TIC E S TE WA RT delive red the opin ion o f the c ourt: The plaintiffs, P& S G rain, LLC (P& S), and V .W. Bo wm an O il Comp any (Bow man), file d a complaint

seeking a de claratory judgment, injuncti ve relief, and a tem porary restrainin g ord er. In the ir complaint , the y chal lenge (1) the constitutionality of Public Act 95-0675 (Pub. Act 95- 0675, eff. October 11, 200 7), w hich , inter alia , added sec tion5-1 006 .7 to the Counti es Code (55 ILC S 5/5-1006.7 (West Supp. 2007)) (sect ion 5-1006. 7 is ent itl ed the County SchoolFacility Occupation Tax Law but is here inafte r referr ed to as the School Facility Tax Law) and allows cou ntygov ernments t o impose a 1% sales tax for school facility use, ( 2) the val idit y of t wo W ill iamson County ordinance s that

authori zed the imposi tio n of the 1% sales tax in Wil liamson County, and (3) t he vali dity

of the fi ling certifica te issued by

the Il linoi s Department of Revenue in regard to one of the Willi amson2

Co unty ordin ance s. The trial cou rt determ ined th at the p laintiffs did n ot hav e stand ing to pursue this acti on, and the court gr antedthe d efe nda nts' m otio n to dism iss. The sole i ssue
we resol ve is whether

the pla inti ffs have st anding to c ha llenge the sale s tax. We find that both plaintiffs have s tanding, we reverse t he orderof the trial court dismissing the plai ntiffs'
com plain t, and we rem and this c ase for fur ther pro cee din gs. BACKGROUND On October 11, 2007, the Il linoi s legi slat ure enact ed Public Act

95- 067 5, w hich , inter alia , added the SchoolFacility Tax Law and amended secti on 15 of the Local Government Debt Reform Ac t. 55 IL CS 5/5-1 006 .7 (W est Su pp. 20 07); 3 0 ILCS 3 50/15 (West Supp. 2007). In part , the School Facility Tax Law allows Ill inois countie s to i mpose a county wide retail ers' occupati on tax and a se rvice oc cupati on tax (ret ail s ales t ax) at a rate of 1%, to be
use d ex clus ively f

or sc hoo l fac ility pur pos es. 5 5 IL CS 5/5 -10 06.7 (W est S upp . 200 7). In November 2007, pursuant to the SchoolFacility

Tax Law, the board of

educati on for ea ch sc ho ol di str ict in W illi am so n C ou nt y–J oh ns to n C ity, Marion, Crab Orchard, Herrin, and Cartervi lle (hereina fter t he school di stri cts) –passeda simil ar res oluti on request ing that Willi amson County s ubmit t o the vote rs the questi on of imposing t he 1% sales tax for school facility pur

pos es . O n No vem ber 2 8, 200 7, the W illiamso n C oun tyBoard of Co mm issioners (the Wil li ams on Co unt

yBo ard) passed res oluti on number 07-11-28- 65, which aut horized t he submissi on of the fol lowing proposition t o be placed on t he ballot for the Febr

uary 5, 2008, gene ral prim ary election :

"Sha ll the C oun tyof

Williamso n, Illinois, be authorized to im pose a retailers occupati on tax an d a se rvice o ccup ation ta x (co mm only refe rred to as a 's ale s ta x') at
a rate of 1% t o be u sedexclusi vel y f or s choo l fa ci li ty

pur pose s?" At the gener al pri mary el ecti on held on Februar y 5, 2008, the sales tax is sue was submitted to the vote rs of Will iamson Co unty . On February 19, 2008, Saundra Jent, the Will iamson3

Co unty clerk, certi fied, in an "Abstr act of Votes ," t hat the voters of Willi amson County had voted "y es" to t

he proposi tion s ubmitt ed, by a margin of 9, 078 to 8,342. On February

29, 2008, t

he Willi am son Co unty Board pas sed ordi nance number 08-02- 29-02, wh ich ac cepte d the m ajority vote in favor of t he impo sition o f the 1 % scho ol fac ility tax an d d ire cte d t he W illi am so n C ou nt y cle rk to tra ns m it a ce rtified co py o f the ordinance to th e D epa rtme nt o f R eve nue "fo r ad min istrati on a nd e nfo rcem ent." On March 28, 2008, counsel for the Depart ment of Reven ue sent a letter to the W illiamson Co unty clerk acknowledging its recei pt of the copy of t he ordinanc e and sugges ting tha t t he ordinanc e shou ld be amended to show an effect ive date of July 1, 2008, which would coi ncide with the date the Department of Revenue would begin i ts admini stration and e nforcement of t he ordinance

. On A pril 8, 2008, the W illiamson Co unty Board passed ordinance number 08-04- 08-03 to imp ose th e 1% scho ol fac ility retail sales tax es in W illiamso n C oun ty, effectiv e July 1, 20 08. P&S file d th e origi nal complaint agai nst Will iamson County , Il linoi s, on May 20, 2008. On June 17, 20 08, P &S sent a document enti tled " Supreme Court Rule 19( a) Notice " (210 Ill . 2d R. 19(a )) t o Charles Ga rnati , Will iamson County State' s Attorne y, and Steve Green, the co rpora te cou nsel fo r the C ity of M arion, n oti fyi ng them "that the within cause of acti on chall enges the c onsti tuti onalit y of Publ ic Act 95-0675 a s applie d to Pl ai nt if f. " On Sep te mb er 22, 2008 , t

he tria l c our

t a ll owe d Bo wmanto jo inth e a ct io n a s apl ai nt if f. On September26, 2008, t

he plai ntiff

s fil ed a seven-c ount amended complaint, a dding the Departmentof R even ue as a defenda nt as the "age nt that c ollec ts and di stributes" t he 1% retai l sale s tax es. In the ame nded com plaint, the plaintiff s allege d that P &S is an Illino is limited lia bility company wit h its p rima ry off ice lo cate d in M ario n, Illin ois, th at P&S is in t he busines s of sell ing agricu ltural pro ducts to cus tome rs loca ted prim arily in Willi amson County, and that4

its sales are subj ect t o retai l sal es taxes . The plaintiff s all eged that Bow man is a M issouri corporation, authori zed to do business in Il linoi s, and i s in t he busines s of sel ling petrol eum prod ucts to cust omers in Wil liamson County. The plaintiffs alle ged that Bow man w as also subject to ret ail s ales t axes. They alle ged that t

heywere taxpay ers and t ax coll ectors and that they wou ld suffer irreparab le harm if the 1 % retail sales taxe s were allowed t o be coll ected and enforced. The plaintiffs al leged that Will iamson County is a "non- home[-]rul e unit of local gov ernm ent" and that

the City of Marion, Illi nois (the City), "is a hom e[-]ru le mu nicipa lity locat ed within Wil liamson County, Ill inois ." They alle ged that

the fi ve scho ol districts locat ed in Will iamson County had request ed the county t o place t he questi on of imposing a "Co unty School Facil ity Occupations Tax" pursuant to the SchoolFacility Tax L aw ( 55 I LCS 5/5-1006. 7(c) (West S upp. 200 7)) on the Februar y 5, 2008, bal lot. The School Facil ity Tax Law p rovides, in pertinent part, as follows:

" (c) The t ax under thi s Secti on may not be imposed unti l, by ordinance or resolu tion of

the co unty board, t

he questi on of imposing t he tax has be en submitt ed to the el ectors of the count y at a regular elec tion and a pproved by

a majori ty

of the electors voting on t

he questi on. Upon a resolution by the cou nty board or a res oluti on byschool district

boards that repr esent at least 51% of the student

enro llmen t within the county , the coun ty board m ust cer tify the qu estion to the pro per ele ction a utho rity in accor dance with t

he Electi on Code. The elect ion autho rity must su bm it the qu estion in subs tantially the fol lowing for m: Sha ll (n am e o f c ou nt y) be authori zed to i mpose a reta iler s' oc cupati on tax and a servi ce occupati on tax (commonly referr ed to as a 'sales tax ') at a rate of ( ins ert rat e) t o be u sedexclusi vel y f or s choo l fa ci li ty

pur pose s?5

Th e e lec tio n a ut ho rity m us t re co rd th e v ot es as 'Y es ' or 'N o'. If a majori ty

of the el ectors voting on t he questi on vote in t

he affir mative, then the county

may, therea fter, impose the tax." 5 5 ILCS 5/5-1006.7( c) (West Supp. 200 7). The plaintiffs al leged that the questi on of t he im positi on o f the ta x w as ultim ately votedupo n and appr oved by the vo ters of William son C oun ty and th at the "Sales Tax purp ortedly enacted by

Willi amson County wil l res ult in a de fac to inc rease i n sales taxes throughout

the City. " The plai ntiff s all eged that

the City, through its home-rule powers, had imposed certa in taxe s, t hat the City

ha d the "sole and exclusi ve authority to impose s ales taxes within t

he City ," and t

hat nei ther t

he School Faci lit

y Tax Law nor any

other legis lative actpreem pted th e City's hom e-rule p ow ers w ith regard t o the imposi tion of retailsales taxes. Sp ec ifi ca lly, the plaintiffs al leged i n count I, direct ed at Will iamson County, that the Sch oolFac il it

yTax Law, as appli ed with in the C ity, was inv alid an d in v iolation of artic le VII, secti on 6, of

the I llino is C ons titutio n (Ill. C ons t. 19 70, a rt. V II, §6 ). In coun ts II and III, which were direct ed at Will iamson County, they alle ged that

Willi amson County or dinance
num bers 08-02-29-02 and 08-04-08-03 were each "void ab in itio ." In count IV, whichwas also direct ed at Will iamson County , the y al leged that the fili ng cer tifi cate i ssued by the Departmentof Revenue wa s "w ithout le gal ba sis" an d that th e cou rt shou ld declar e it voi d. In co unt s V, VI, an d VI I, whi ch we re direc te d at both Wil liamson County and t he Departmentof Revenue, the ysought i njunctive reli ef agains t the c ollec tion of any t ax under the School Facility Tax Law, a declaratory judgment t

hat the School Facil ity

Tax Law and the ordinance s author izing t he tax were "voi d and of no legal force and effe ct, " and a tempora ryrestraini ng order t o prevent t he Department of Revenue from collecting "the disputed school sales t ax sooner than January 1, 2009, if at all." On November 3, 2008, t he school di stri cts fi led a pet iti on to int ervene as of right , and6

on November 12, 2008, the trial cou rt gr ant ed t he p la in ti ffs ' mot io n fo r an ex te nsi on o f t ime to respond t o that pe tition. Als o on that date, the court foun d that the pla inti ffs had a "reaso nable ground for fi ling" their caus e o f acti on and ordered t he plai ntiff

s' amended
com plain t to b e file d an d su mm ons to iss ue. On November 13, 2008, t he plai ntiff

s refi led the same amended complaint , the details of which we hav e set for th above, against

Willi amson County and t he Department of Revenue. On Novem ber 19, 2008, the Department of R evenue wa s served with a summon s. On December 5, 2008, t he tri al court

granted the school distri cts' petitions t o inter vene, and
on the same date, Williamson County and the school districts fil ed motions to dismiss , chall enging severalaspects of the acti on, inc luding t he plai ntiff

s' s tanding to chal lenge the stat ute and ordinances at

issue. On December 17, 2008, t he court c onducted a hearing on the m otions to dismis s. The defendants argued that the plaintiffs fai led to a llege any ac tionabl e injur y as a resul t of the tax because, althoughthey are required to pay

the tax, they

are al lowed to pass the ent ire t ax
on to the c onsumers. The defenda nts al so a rgue d that th e plain tiffs, a lim ited liability company and a Missouri corporation, di d not meet the criteria for c halle nging the t ax as set forth in section 11-301 of t he Code of Civil Pr ocedure (t he Code) (735 ILCS 5/11-301 (West 2008)). Tha t section prov ides, "A n actio n to restrain and e njoin t he disbu rsem ent of

pub lic funds by any

officer or office rs of the State government may be m ainta ined eithe r bythe Attorney G en er al o r b y any cit izen and t axpayer of t

he State ." (Emp has is add ed. ) 7 35 I LCS 5/11-301 (West 2 008). Th e defen dants argu ed that Bo wm an, a M issouri corpora tion , and P&S, a limited liability com pany, did not quali fy as citi zens pursuant to t he ruli ng in Charles Friend & C o. v . Goldsmit

h & Seidel

Co. , 307 Ill. 45, 50, 138 N .E. 185, 187 (1923) ( " A corporation is not a c itizen o f any S ta te or count ry"). The d efen dants asserte d that o nly individ ual tax payers livin g in W illiamso n C oun ty are citizen s wh o w ould have standing to7

cha lleng e the tax u nde r sec tion 11- 301 of th e C ode

. The plaintiffs argued that t hey had s tanding to request injunctive rel ief on the ground that, under section 11-301, they qualif ied both a s cit izens and a s taxpay ers. They argu ed tha t, under the Busines s Corporat ion Act of 1983 (805 ILCS 5/1.01 et seq. (West 2008)) , the y had the ri ght to s ue and be sued in t heir cor porate name (805 ILCS 5/3.10 ( West 2008)). They arguedthat they had standing as taxpayers because, as retail ers, they were requir ed to pay

the 1% school facilit

y tax. They argued that they also had standing as tax collect ors because they
wer e requir ed to act as a gents of t he stat e in col lect ing the t ax from thei r cust omers and submitt ing the col lect ed tax t o the Departmentof Revenue. The plaintiff s maintained that they suffered an a ctiona

ble inj urysuffici ent to give them standing whether or not they passed the tax o n to their

customers and regardl ess of any reimburs ement they

might rec eive for colle cting the ta x. On Janua ry29, 2009, t he court e ntered an order di smissi ng with prej udice the amended com plaint and ruli ng, in pertinent part, as foll ows: "Plaintiffs, P&S *** and *** Bowm an ***, cl aim standing both as taxp ayers and [as ] t ax c ol le ct or s. The P la in ti ffs do n othav e s tandi ng a s t axp ay er s. 55 I LCS 5/5-1006. 7(a) and (b) specifical ly al low Plaintiffs to rei mburse them selves for the ir sales tax li ability

bycha rgin g th e sa les ta xes to th eir cu stom ers. In other words, the sales taxes ar e passed al ong to Plaintiffs' custome rs. In additio n, the sa les taxe s app ly only to goods and se rvices subject to the s ales t axes which a re p urch ased in Willi amson County. The sales taxes do not apply st atewide or even in a djacent
coun ti es. The Plaintiffs, and anyone else fo r that m atter, can avoid the sale s ta xe s entirely by choosing not to purchase goods and servi ces subj ect t o the sales tax es in W illiam son Co unt y. T he Plaintiffs al so do not have s tanding a s tax col lect ors. As the P laint iff s8

con ced e[,] they are e ntitled to r eimb ursem ent fo r their expenses incurr ed in keepi ng records, pre parin g and fil ing ret urns, remitting the t ax, [and] supply ing data to the De par tme nt [o f R eve nue ], if re que sted [,] an d fo r acti ng a s co llecto rs of the ta x.
*** After consi dering t

he all egati ons of the Amended Com plaint , the M otions to Dismiss, Plaintiffs'M emo rand um Of Law In O ppo sition, the argu men ts of c oun sel[ ,] and the appl icabl e law, t he Court fi nds that t

he Plaintiffs *** do not

have stand ing to bring th is laws uit . Accordingly, the Court f inds t hat the Motions to Dismi ss *** shou ld b e grante d pursuant to 735 ILCS 5/2-619( a)(9) , and this cas e should b e dismissed, with prejudice. " This appealfollowed. AN AL YS IS Be cause the tri al court dismis sed the pl ainti ffs' amended complaint for lac k of standi ng, ou r f

irs t ta sk is t o c lea rly deline ate wha t is meant by s tanding and why it is a
neces sary element of e very cause of act ion. The concept of st anding is relat ed to the
conc epts of m oo tness, rip enes s, and justiciab ility, all of wh ich allo w c ourts to limit their caseloa d to disp utes w hich a re truly adversarial and for which a j udicia l decisi on will r esolve the issu es. Gre er v. Illino is Ho using De velop me nt Au thority , 122 Il l. 2d 462, 48 8, 52 4 N.E.2d 561, 572 (1988). The primary crit erion for

standi ng is t

hat a pl ainti ff must have sufferedan "inj ury in fa ct" fo r w hi ch a ju di cia l d ec isi on m ay p ro vi de a r ed re ss or re m ed y. Greer , 122 Ill . 2d at

488, 524 N.E.2d at

572-73. The " ' centra l pri nciple ' " of standi ng i s

" 'ver y simple: One who is adversel y affe cted i n fact bygovernmental ac tion has s tand ing to challe nge its legality, and one w ho is not advers ely affec ted in f act lac ks standing .' " (Em phas is in original.) Greer , 122 I ll . 2d at488, 524 N.E.2d at 573 (quo ting 4 K. Davis, Adm inistrative Law Treatise §24 :2, at 212 (2d e d. 1983)).9

Th e a ctu al o r th re ate ne d i nj ur y cla im ed by a plaintiff must be dist inct and palpabl e, f airly tra ceable t o the defendant 's a ctions , and subs tanti ally likely t o be prevent ed or redres sed by the gra nt o f the req ues ted r elief

. Greer , 1 22 Ill . 2d a t 492-93, 524 N.E.2d at 575. "In the con text of an ac tion for declarato ry reli ef, there must be an actualcontroversy between adverse par

ties , with t

he party request ing the declar ation pos sessi ng some personal cl ai m, stat

us, or righ t wh ich is cap able of b eing affecte d by th e gr ant o f su ch r elief ." Greer , 122 Ill. 2d at 49 3, 52 4 N .E.2 d at 5 75. For there to be an "act

ual" cont roversy , the re must be " a showing that the underlyi ng facts and issues" a re not mo ot or premature be cause co urts are not to rend er advisory opinions or mere lypro vid e leg al ad vice abo ut p oss ible f utu re ev ents
. Messenger v. Edgar , 157 Ill. 2d 162, 170, 623 N .E.2d 310, 314 (1993). "The requirement of an actual controversy is meant only

to dis tingui sh j ust iciable is sues f rom abstra ct or hypo thetical d isputes and is not intended to p revent the reso lution of con cre te disput es in which a de finitive and imm edia te de term inati on o f the righ ts of the p artie s is p oss ible." Messenger , 157 Il l. 2d at 170-71, 623 N.E.2d at 314. For the plainti ff to be "interest ed" in the controversy , there must be more than mere curiosi ty or concern; "rather, t he party r equesting the declarati on must possess a personalclai m, stat us, or right that i s capable of being affected by the grant of such relief. " Messenger , 157 Ill. 2d at 17 1, 62 3 N .E.2 d at 3 14. "Since standing is a component of justiciabi lity , it must be defined on acase-by-case bas is." Messenge r , 157 Il l. 2dat 171, 623 N.E.2d at 314. Whether a part y has standi ng differs depending upon the issue s invol ved and the n atur e of the r elief

sou ght

. Martini v. Netsch , 272 Ill . App. 3d 693, 695, 650 N.E.2d 668, 670 (1995). "Whether the plaintiff has standi ng to sue is to be determined from the allegations contai ned in the complaint." Martini , 272 Ill. A pp. 3 d at 6 95, 6 50 N .E.2 d at 6 70. In ou r case , the trial court di smissed the plainti ffs' complaint upon the defendants'10

motion to di smi ss filed pursuant t o section 2-619 of the Code (735 ILC S 5/2-619 (West 2008)), whi ch al lo ws claim s to be dism issed b ased upo n certa in defects or defenses (Illinois Graphics Co. v. Nick

um , 159 Il l. 2d 469, 485-86, 639 N .E.2d1282, 12 90 (199 4)). Sp ec ifi ca lly, a clai m may be dismi ssed when it is "bar red b y other a ffirmat ive matt er avoiding the legal effec t of or defe ating the claim." 73 5 ILC S 5/2-61 9(a)(9) (W est 2008). A lack of s tand ing qua lifies as su ch a n affirm ative ma tter. Wexler v. Wirtz Corp. , 211 Il l. 2d 18, 22, 80 9 N .E.2d 124 0, 124 3 (20 04). T here is no requ ireme nt for a plaintiff to asse rt facts to show that he has standi ng; rat h er, i t is the burden of

the defendant

to plea d and prove a lackof s tand ing

. Wexler , 211 Il l. 2d at 22, 809 N.E.2d at 1243. "When ruling on a s ecti on 2-619 argument, a court must accept as true al l well- pled fact s in the plai ntiff 's c omplaint

and all inferences that reasonably can be drawn in the plaintiff's favor." Cr usius v. Illinois Gaming Board , 348 Ill . App. 3d44, 4 8, 80 7 N .E.2 d 12 07, 1 212 (20 04) , aff'd , 216 Il l. 2d 315, 837 N.E.2d 88 (200 5). A motion t o dismis s fil ed pursuant to section 2-619 t

hat chal lenges a plai ntiff

's s tanding pr esents a questi on of law, and our review of the trial cou rt's ruling is de novo

. Wexler , 211 Il l. 2d at 23, 809 N.E. 2d at 1243. With these r

ules i n mind, we first consider whether the plainti ffs, as taxpayers, meet the common law requirement s for st anding to c halle nge the i mpo sit ion of the 1% school facil iti es retai l sal es tax in Will iamson County . The basi c premises of thei r cause of ac tion
are (1) that W illi amson County' s imposi tion of t he school fa cility

tax confl icts with and
unco nstitution ally violat es the Cit y' s home-rul e st atus and i ts i mpositi on of citywide t axes and (2 ) t ha t Wi ll iamso n Co unt

ydi d no t c orre ct ly

fo ll ow the necess ary

procedures for implementing the tax . With out c ommen ting upon t he viabi lit

y of t heir cl aim, we find t

hat the pl ain tif

fs , as co rp or ate en titi es su bj ec t to bo th th e C ity's tax es an d W illi am so n C ou nt y's school facilit

y tax, are adversely

affected by those taxes. Since both plaintiffs, as retail ers,
are subje ct to the tax th ey ar e chall engi ng, the y have areal interes t in t he outcome of the11

laws uit, which is a t

ruly adversarial c ontrover sy. See Crusius , 348 I ll. App . 3d at 48, 807 N.E.2d at 1212 (" The doctri ne of standing ensures t hat the person purs uing the action has a real interest in the ou tcom e of th e con trover sy"); Greer , 122 Il l. 2d at 488, 524 N.E. 2d at 572 (the doctri ne of standing limi ts j udicia l consi de rati on to thos e con trover sies tha t are "tru ly adv ersa rial")

. Under the well -est ablis hed test for st anding, we find that the plaintiffs' claim of injury is di sti nct and palpable, in that it i s based upon the imposition of a parti cular t ax and is not vague or und efine d. Th eir claim of inju ry is fairly trace able t o the defendant s' a ctions , in t hat it is the schooldistrict s that initially r equested

the tax to be impl emented, i t is the Will iamson Cou nty Board that pa ssed th e ord inanc es an d com pleted the pro cedu res tha t resulted in the implementationof the tax, an d it is the D epartm ent of Revenue that is charged with the colle ction and enforcement of the ta x. Fina lly, their claim o f injury is "su bstan tially likely to be prevent ed or redres sed by the grant of t he relief requested. " Greer , 122 Il l. 2d at 493, 524 N.E.2d at 575. The plaintiffs have a l leged that the tax is unconsti tuti onal and was impro perly impo sed. T hey requ est dec laratory an d injun ctive re lief, the u ltimate ai m of which is t o enjoin c ollec tion of t he tax. If the c ollection of the tax is enjoined , they will no lon ger be s ubj ect to it. We emphasize that

this decisi on is l imit ed to the issue of th e p la inti ff

s' st an di ng; we
are not making anyruli ng or comments about the ultimate out come of the lawsuit. In rul ing
on the is sue of st anding, however, we are r equired to consider the allegati ons of the plaintiffs' amended complaint

as tr ue for the purpose of our dec ision

. Crusius , 348 Il l. App. 3d at 48, 807 N.E.2d at 1212. Therefore, if the reli ef the plaintiff s requ est is granted, then the injury they clai m will have been prevente d or redr essed, as is r equired f or them to have standi ng. Th us, th ey me et the mo st ba sic re qui rem ents for stan din g. The trial court ruled tha t the pl ainti ffs do not have s tanding to bring t his action as12

taxpayers for the following reason: "[The School Facility Tax Law ] specifically all ow[s] Plaintiffs t o reimburs e themsel ves for t heir s ales t ax lia

bili ty by charging the s ales t axes to their customers . In ot

her words, t

he s ales t axes are p asse d alo ng t o P laint iffs ' custo me rs." That reasoni ng is fl awed. The tax imposed i s a tax on the occupation of bei ng a reta iler , and must be paid by the ret ailer, whether or not it is p assed a long to con sum ers. Th e Illinois Supreme Court has s quarely rejec ted the tri al court 's r easoning: "Illinois retai lers are li able for taxes under

the Ret ai le rs ' Oc cupa tion T ax A ct [(Ill. Rev. Stat. 1985, ch. 120, par. 440 et seq. )] wh ether th ey have succ essfu llycolle cted
use taxes fr om their c ustomers or not . M oreover, as we have stated, ' The retailers' occupati on tax is levie d upon the sel ler, and the custom of passing t he burden to t

he buyer bymean s of a price inc rease doe s not alter its nature. It is the legalincide nce of the tax that control s.' " Springf ield RareCoin Galleri es, I nc. v. Johnson , 115 Ill. 2d 221, 229, 503 N. E.2d 300, 304 ( 1986) (quoti ng Na tional B ank o f Hyd e Pa rk in Chicago v. I

saacs , 27 Ill. 2d 205, 207 , 188 N .E.2d 704 , 705 (196 3)). In Sp ringf

ield RareCoin Galleri es, I nc. , the Ill inois Supreme Court det ermined that th e plaintiff corporation had st anding as a t axpaye r to chal lenge the imposition of a provi sion of the Re tailer s' Oc cup ation Ta x A ct. Springfield Rare Coin Galleri es, I nc. , 115 I ll. 2d at 231, 503 N.E.2d at 304. Sim ilarly, in the case at bar, although P&S and Bowman have the right to pass the tax al ong to their cust omers, t hat ri ght does not

defeat t heir s tanding to chall enge the imposit ion of the tax becaus e the schoolfaci lity tax is to be constr ued the same as the retai l sal es tax at

issue in Springf

ield RareCoin Galleri es, I nc. The School Facil ity

Tax Law prov ides tha t the sch ool fa cilities tax is to be treated the
same as it would be unde r the Ret aile rs' Occupation Tax Act (35 ILCS 120/1 et seq. (West 2006)) by providing as foll ows:

"In the admini stration of and compliance with thi s subsection, t he Department13

and persons who are s ub jectto this subsect ion (i) have the same rights, remedies, privileges, imm uni ties, p ow ers, a nd duties , (ii ) are subject t o the same conditions, restri ctions, limitation s, pen alties, and defin itions o f term s, and (iii) shall employ t he
sa me modes of procedure as are s et fort h in [the applic able] Sec tions *** o f the Retailers' Occupation Tax Act and al l provi sions of t he Unifo rm Penalty and Inter est Act as if those provisions were set fort h in this subsecti on." 55 ILCS 5/5-1006.7( a) (W est S upp . 200 7). Therefore, since the sup reme co urt has ru led that a corpor ation ha s standing to chal lenge retail sales taxe s even t hough it mi ght have pass ed that tax al ong to it s customer s, t he corp orate plaintiffs i n this case do not l ack standing simply because they may

pass the school facilit y tax al ong to their customers. The defendants neverthe less argue that t he tri al court

correctly ruledthat t

he plai ntiff

s do not have standing because they may pass the tax along to the ir customers, and in suppo rt of that argument they ci te the Ill inois Supreme Court' s decis ion in RaintreeHomes, Inc. v. Village of Long Grove , 209 Ill. 2d 248, 807 N.E.2d 439 ( 2004). We disa gree. In Raintree Hom es, Inc. , the sup reme cour t cons idered wh ether b uilding perm it applic ants had s tanding to chall enge the i mpositi on of im pact fees, w hich w ere req uired to be pa id by eac h building per mit ap plica nt. RaintreeHomes, Inc. , 209 Il l. 2d at 251-52, 807 N.E.2d at 441- 42. The sup re me court r

uled that the pl ainti ffs did not have standing to challenge the fees because the landowners, not t he pla intiffs/ building permit applicant s, had actually paid those fees. RaintreeHomes, Inc. , 209 Ill. 2d at 26 2, 80 7 N .E.2 d at 4 47- 48. There are s ignifi cant di fferences between the facts of t he Raintree Hom es, Inc. case and ours. There, the pla inti ffs had no int erest in the c ontrover sy be cause it was undisput ed that they had not paid the c halle nge d fe es. Raintree Hom es, Inc. , 209 Il l. 2d at 261-62, 807 N.E.2d at 447-48. In the case at bar, the defendant s have argued only t hat the plaintiffs have14

a right to pass t he tax al ong, not t

hat the y have a ctual ly

done so. The most import antdifference , howe ver, is that the nature of impact fee s is di fferent from the nature of

retai l sal es taxes . In RaintreeHomes, Inc. , the supreme court noted that impactfees are not taxe s, alth oug h th ere a re sim ilaritie s. RaintreeHomes, Inc. , 209 Il l. 2d at 259, 807 N .E.2d at 446 . Taxes im posed u nder the R etailers' Occupation Tax A ct are not taxes upo n the p rivilege of b uying, or u pon individ ual sale s, but u pon th e o ccupati on of retailer. See Central Tel evisi on Service, Inc. v. Is aacs , 27 Il l. 2d 420, 426-27, 189 N.E. 2d 333, 336 (19 63) (and c ases cited therein). Like wise , taxes im pose d un der the Sch ool F acility Tax Law are also spe cifi call y i mposed "upon allpersons enga ged in the bus iness of sell ing tang ible p erso nal p rop erty." 5 5 IL CS 5/5 -10 06.7 (a) (W est S upp . 200 7). In contras t, t

he impact fe es imposed i n RaintreeHomes, Inc. were fees imposed as a conditi on of the i ssuance of a par ticul ar buil ding permit

for the c on struc t ion o f a sp ecific dw ellin g un it. RaintreeHomes, Inc. , 209 Il l. 2d at 252, 807 N.E.2d at 442. Since the fees in that ca se w ere sp ecific to the tran saction , the on ly parties w ith a rea l interest in the controver sy were the ones that actually paid the fees. In our case, since t he tax i s upon the occupati on of reta iler , it is t he reta iler

that ha s the r eal inter est i n the controversy . Hence, the plaintiffs in our case, w hich are retail ers, are the real pa rties in inte rest, and the rulin g in RaintreeHomes, Inc. doe s no t app ly to the fac ts of this c ase . The trial cou rt also d eterm ined th at the p laintif fs did not h ave standing as tax collectors to chal lenge this t ax because t hey have the ri ght to be r eimbursed for their expendit ures in collecting the tax. That reasoning is also f aulty . Since the tax is upon the plaint iffs d ue to their st atus as retai l sell ers, it is the impositi on of the tax that gives the m standi ng, and any

procedures by which t

hey may recover t

heir cos ts for

colle cting it do not
n egate the effec t of the tax upon the m. Since t he supreme court

has deter

mined that

the ability to directly

pass the tax along to one's customers do es not defe at st anding, it i s not15

reaso nable to find that the ability to recov er the in ciden tal cost o f the p roced ures re quired to colle ct the tax defeats standi ng. See Sprin gfield R are C oin Galleri es, I nc. , 115 Il l. 2d at 229, 503 N.E .2d a t 30 4. We next c onsid er the d efen dants ' argum ent t hat the pl ainti ffs do not have s tanding under section 11-301 because they are not " citi zens." 735 ILCS 5/11-301 (West 2008) . The plaintiffs as sert

standi ng under section 11-301, as well as under common law principl es of stan ding, becau se, by

their amended complaint , the y se ek to res train and enjoi n the disburs ement of p ubl ic fun ds c ol le ct ed f ro m re ta il er s i n Wil li ams on C oun ty. See City of Ca rbon dale v. Bower , 332 Il l. App. 3d 928, 932, 773 N.E .2d 18 2, 185 (200 2) (in o rder to file
an acti on under section 11-301, the pla inti ff must be aciti zen and taxpayer and the complaint must be an acti on to res trai n and enjoin the disb ursem ent of pub lic fun ds). T he de fend ants argue that because the plaintiffs "are corpor ate ent iti es, t hey do not

qualif yas citizens who
are authori zed to b ring this ty pe of acti on." They

specifi call y argued in the tri al court and in oral argument before t his court that

only an indivi dual citi zen, and not a corp orate e ntity such as eit

her plaintiff

, can ever

qualif y as a "citizen and t axpaye r" un der s ecti on 11-301. Th is arg um ent is wit hou t me rit. Co rpora te entities suc h as thes e plai ntiff s quali fy as corporat e cit izens wit h right s and responsibili ties very sim ilar to those of i ndividualciti zens. See Bird v. Luhr Brothers, Inc. , 334 Ill. App. 3d 1088, 1090, 779 N.E.2d 907, 911 (200 2) (an Illinois co rpora te defenda nt in
a forum non conveniens case w as referred to as a "c orpo rate citize n"); People ex rel. Sco tt
v. Dravo Corp. , 10 Il l. App. 3d 944, 947, 295 N.E.2d 284, 287 (1973) (in a suit by the S tate of Illinois ag ainst on e Illinois cor poration an d two o ut-of-state corpo rations, the court charact erize d the act ion as on e "be twe en aSt at e an d i ts cor por at e ci ti zen s" ); 805 ILCS 5/3.10(b) (W est 20 08) (e ach c orpo ration s hall have power to sue and be sued, and com plain and de fend, in its corpo rate name ).16

The defendants argue th ata 19 23 I ll in oi s Su pr eme Court case c ontrol s the i ssue of the standi ng of the plaintiffs under section 11-301. We disa gree. I n Charl es Friend & Co. v. Go ldsm ith & Seidel

Co. , 307 Ill. 45, 48, 13 8 N.E . 185, 186 (1 923), the sup reme co urt consider ed the dismis sal of an attac hment suit in which the issue on ap peal w as "wh ether a foreigncorporation doing business in thi s Stat e underthe li cense authorized by law is subj ect to attachment as a non[]resident. " As a part of t he discus sion of t

hat is sue, t

he suprem e court noted that a corporat e enti ty may be c ons ider ed a per son but not a citiz en. Charles Fri end & Co. , 307 Il l. at 50, 138 N.E. at 18 7. However, that dis cussion in Charles Fri end & Co. does n ot app ly to the i ssue of st anding under s ecti on 11-301. Lat er cases have li mited t he scope of the Ch arle s Fr iend & C o. case to t he parti cular s tatut e atissue t herein. See LeBlanc
v . G.D

. Searle & Co. , 178 Il l. App. 3d 236, 240, 533 N.E.2d 41, 43 (1988) (t he Charles Friend & C o. case was only

decided "in light

of the purpo se of

[th e attachme nt] statute"). Since the court i n Charles Fri end & Co. did not cons ider t he questi on present ed in our ca se, whethera corporat e enti ty qualif ies as a "ci tize n" under sec tion 11- 301, it s ruling is i rrel evant to o ur d ecis ion

. We have found nothi ng in the l egisl ative hist oryof secti on 11-301 to suppo rt t he defendants' argumentthat t he use of the term "ci tize n" precludes corpor ate ent iti es from filing acti ons under that section. I t is likely t hat there is no such legislati ve history because the legis latur e n eve r quest ioned whether corporations would be pr ecluded fr om fili ng acti ons under section 11-3 01. C learly, there is n o ration al basis for inte rpreting the statu te to all ow
an indivi dual taxpayer

to file a la wsu it to res train and enjoi n the dis bursement of publ ic funds but to preclude a corporate taxpayer from doing so. Cons ider two retai lers locat ed in the
sa me town, sel ling t

he sam e pro ducts . On e retailer is incorp orated and th e othe r is not. Bo th
are equall y subj ectto the pay ment of retailers'occupation taxes. Under the defendants' analysi s, the ind ividua l retai lerwould have standing to chal lenge a sa les t ax under section1 The plaintiffs fi led a moti on in thi s court request ing that

we stri ke this issue f

rom the defendants ' br ief. We deny that motion. 17 11- 301 , but the in cor por ated retai ler w oul d no t. Su ch a resu lt defies lo gic. We note th at th e an aly sis i s no differ ent for Bowman than for P&S, even t hough Bowm an is a Misso uri corporation. "A foreign co rpora tion , b y se eking and obt aining
a utho rityto tr ansact bus iness in Ill inois [,] does not preclude its elf from obj ecti ng to th e enforcementof

statutes which conflict

with the Federal or State consti tutions ***." People
ex rel. Holl and v. Bleig h Construct ion Co. , 61 Il l. 2d 258, 260-61, 335 N.E. 2d 469, 472 (1975) (wh ere the defe ndan t, a M issouri corporation, sought to chal lenge the co nstitution ality of a stat ute, the supr eme court hel d that the defendant "obvi ously " had "st anding to c halle nge the validity

of the st atute upon which the action agai nst i t" was based); se e also St. Lou is Southwestern Ry. Co. v. Stratton , 353 Il l. 273, 278, 187 N.E. 498, 500 (193 3) (ru ling t hat
o nce a fo reign cor

porati on follows t

he appli cable pr ocedures t o obtain t he right to do business in Ill inois, i t is equal t o and should be classi fied the sa me a s similar dom estic corporations). Fi na lly, we add ress the defe ndan ts' argum ent tha t the pla intiffs w aived their consti tuti onal challe nge to the S choo l Facility Tax Law "when they fai led to provide noti ce of the chal lenge t o the proper pa rties." 1 The defend ants claim that the p laintiffs were requir ed to ser

ve notice of the l awsuit upon t he Ill inois Attorney

General when they filed th is laws uit. The defendants bas e the i r arguments upon Supreme Court Rule 19( a), which provides, in rel evant part, as foll ows:

"In any cause orproceedi ng in which the consti tuti onalit y *** of a stat ute *** affecting the publi c inte rest is ra ised, and

to which acti on or proceeding the Stat e or the political s ubdivis ion, age ncy, or of fice raffected is not a lread y a pa rty , the litigant rais ing the co nstitution al *** issue sh all serve an ap propri ate not ice thereof on the18

Atto r neyGeneral, State' s Attorne y, municipalcounsel[, ] or agency attor ney, as the
case ma y be." (Emph asis added .) 210 Ill. 2d R. 19(a ). The defendants acknowledge that the plaintiffs s erved a Rule 19( a) noti ce on June 17, 2008, with in a m onth of the initial filing of the ir complaint . However, theycomplain t hat the notice was not serve d simult aneously with the initi al complaint and that it was se rved on the Willi amson Co unty State 's Attorn ey and th e City 's c or porate c ounsel, rather than upon the Attorney Ge ner al's office

. They ar gue that the pla inti ffs have ther efore waived any chall enge to the constitutionality

of the t ax and "shou l d n ot be al l ow edt o app ea l t o t hi s C our t
. " W e disagre e. Tw o of the ca ses the defe ndants cite in sup port of this argu ment are dist inguis hable. In both cas es, t he plaintiffs fai led to r aise t he consti tuti onal chal lenge in the tri al cour t, and the courts found t he issue s waived on that basis, also not ing that

the pla inti ffs had faile d to com ply w ith R ule 1 9. Villa rea l v. Peebles , 299 I ll . App. 3d 556, 560, 701 N.E.2d 145 , 147 ( 199 8); Witt v . J ones & Jon es Law Of

fi ces, P. C. , 269 Ill . App. 3d 540, 545, 646 N.E.2d 23, 26 ( 1995). Those ca ses are not applic able t o our case, where the pl ainti ffs squa rely rais ed the constitutional i ssues i n their initial complaint

and served a Rul e 19 notice upon th e State's Attorney and c orporate co unsel less than o ne mo nth later. Mo reover, the Department of Revenue, t he stat e agencychargedwith overs eeing and colle cting the tax, has been made aparty to thi s lawsuit

and has been served with a summ ons. Under Ru le 19, the notice must be ser ved unless the Stat e or agency "affect ed is not

alrea dy
a party ." 210 I ll . 2 d R. 19(a). Here, the agencyaffected, the Department of Revenue, has been mad e a pa rty defen dant p rior to any r esolut ion on the meri ts of t he consti tuti onal is sues rais ed. "The purpos e of the not ice i s to gi ve the affect ed agen cy or officer the opp ortun ity to intervene in the proceeding for the purpose of defending t he consti tuti onalit

y of t he stat ute, ordinance , or adminis trative regulation." Village of Lake Villa v. Stokovi ch , 211 Il l. 2d 106, 115, 810 N .E.2d 13, 20 (2004). Here, the issue of the constitutionality

of the st atute has y et19

to be deter

mined. The purpos e of the r ule has bee n accomplis hed. The defendant s' argument fails. CONCLUS ION For all t he rea sons sta ted, we reverse the tri al court' s order granting the defendants' motion t o dismis s, and we remand for further proceedi ngs consis tent wit h this opinion.
Reversed; c ause remanded.

GO LD EN HE RSH , P.J., and CH AP MA N, J., concur.NO. 5-09-0079 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ P&S G RAIN, LLC , an Il linoi s Limit ed ) Appeal from the Liability Compa ny, and V.W . BOW MA N O IL ) Circui t Court of COM PANY , a Missour i Corporation, ) W illi am so n C ou nt y. ) Plaintiffs- Appellants, ) ) v. ) No. 08-CH-100 ) TH E C OU NT Y O F W ILL IA M SO N, ) ILL INO IS, an Illinois U nit of L ocal ) Gov ernmen t, BRIA N A . HA ME R, Direc tor, ) Ill inois Department of Revenue, an Agency of ) St at e Go ve rn men t, an d THE BOARDS OF ) ED UC AT IO N O F JO HN ST ON CIT Y, ) MA RION, CR AB O RCH ARD , HERRIN, and ) CARTER VILLE SCHOO L DISTRICTS, ) Ho nora ble ) John Spe roni, Defendan ts-Appellees. ) Judge, presi ding.

___________________________________________________________________________________ Opinion Filed : April 2, 2010

___________________________________________________________________________________ Justice s : Honorable B ruce D. Stewart, J.

Honorable Richar d P. Goldenhers h, P.J ., and Ho nor able M eliss a A . Ch apm an, J ., Concur

___________________________________________________________________________________ Attorney Ron al d E. Osman, Ron al d E. Osman & As so ci at es , L td ., 160 2 W. Kim mel , P .O
. for Box 939, Marion, I L 62959 Ap pellants

___________________________________________________________________________________ Atto rneys M erry C. R hoad es, D aniel J. R hoad s, Tue th, Ke eney, C oop er, M ohan & J acks tadt, for PC, 101 W . Va nda lia, S uite 2 10, Edwardsvill e, IL 62025 (for The Boards of Education Appellees of Johnston City, Marion, Crab Orchard, Herrin, and Cartervill e School Districts)

St ep he n E . N or ris , D ep ut y D ire cto r, S ha ro n S ha na ha n, S taff A tto rn ey, S tat e's Attorney s Appellat e Prosecut or, 730 E. Ill inois Highway, Sui te 2, P.O. Box 2249, M t. Vernon, IL 62864 ( NO BRIE F FI LED -- for T he C oun tyof Williamson, Ill inois)

___________________________________________________________________________________