FIFTH DIVISION

                                         September 21, 2001

No. 1-99-4497

OWNER-OPERATOR INDEPENDENT DRIVERS

ASSOCIATION, RAYMOND KASICKI, MARINO

MOTOR SERVICES, INC., and HARRY KIJOWSKI,

Individually and on Behalf of All Others

Similarly Situated,

		Plaintiffs-Appellants,

	v.

GLEN L. BOWER, DIRECTOR, THE DEPARTMENT

OF REVENUE,

		Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County

Honorable

Alexander P. White,

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	On February 19, 1999, plaintiffs, on behalf of themselves and all

persons engaged in the interstate operation of commercial motor vehicles

on the Illinois Tollway, filed an action for declaratory, injunctive and

monetary relief against defendant, Glen Bower, Director, Illinois

Department of Revenue.  The plaintiffs, a trucking association, trucking

company, and several owner-operators of commercial motor vehicle carriers,

sought: (1) a declaration that the Illinois motor fuel use tax (MFUT), as

applied to commercial motor vehicles traveling on the Illinois Tollway,

was unconstitutional; (2) to enjoin the defendant from collecting the tax

for fuel consumed on the Illinois Tollway; and (3) a refund of any fuel

taxes paid by commercial carriers based on mileage traveled on the

Illinois Tollway.  

	The trial court granted defendant's motion under section 2-619 of the

Code of Civil Procedure (735 ILCS 5/2-619 (West 1998), motion to

dismiss plaintiffs' complaint.  The court held that Owner-Operated

Independent Drivers Association (OOIDA) lacked standing, that plaintiffs

failed to join all necessary parties, that plaintiffs failed to exhaust

all administrative remedies, that the voluntary payment doctrine

required dismissal and that the MFUT was constitutional.  Plaintiffs now

timely appeal.

	On appeal, plaintiffs argue that: (1) they were not required to

exhaust administrative remedies; (2) the voluntary payment doctrine is

not a bar to this action; (3) the MFUT is in the nature of a user fee

and is violative of the commerce clause; (4) even if the MFUT is a use

tax, it is violative of the commerce clause; (5) OOIDA has standing in

this case; and (6) all necessary parties have been joined.

	For purposes of this appeal, the State does not rely on the

contentions that the plaintiffs' complaint was subject to dismissal on

the basis of the voluntary payment doctrine, the exhaustion of remedies

doctrine, or failure to join all other International Fuel Tax Agreement

(IFTA) jurisdictions in this litigation.  Therefore, these claims are

not before our court on appeal.

	For the following reasons, we affirm.

I.  BACKGROUND

	Plaintiff OOIDA is a not-for-profit association of persons and

entities who own and operate motor carrier equipment.  OOIDA was founded

in 1973, was incorporated in Missouri, and has over 40,000 members in the United States and Canada.  

	Plaintiff Raymond L. Kasicki is an owner-operator who resides in

Ohio.  Kasicki, in operating his motor vehicle carrier, utilizes the

Illinois Tollway.  Kasicki pays his Illinois fuel use tax through the

company from which he leases his commercial carrier, Mawson & Mawson,

Ltd., a motor carrier based in Pennsylvania.

	Plaintiff Marino Motor Services, Inc., is a motor carrier operating

a fleet of commercial motor vehicles based in Illinois.  Vehicles

operated by Marino utilize the Illinois Tollway.  Marino pays its

Illinois fuel use tax directly to the defendant.

	Plaintiff Harry Kijowski is an owner-operator who resides in New

York.  Kijowski, in operating his motor vehicle carrier, utilizes the

Illinois Tollway.  Kijowski pays his Illinois fuel use tax to the New

York Department of Taxation And Finance.  

	Defendant, Glen L. Bower, is the Director of the Illinois

Department of Revenue, and in that capacity is responsible for the

collection of the MFUT.  

	In 1953, the Illinois General Assembly authorized the creation of the Illinois Tollway System.  The Illinois Tollway (the Tollway) is

operated by the Illinois State Toll Highway Authority, an

instrumentality of the State of Illinois.  The cost of operating the

Tollway is paid for through tolls, restaurant and service station

concessions and similar earnings.

	In 1929, the legislature enacted the Motor Fuel Tax Law (Ill. Rev.

Stat. 1929, ch. 120 pars. 417 through 439), which imposed a tax upon the privilege of operating any motor vehicle upon the public highways of the

state.  In 1977, the legislature amended the Motor Fuel Tax Law to

include an additional tax measure.  Ill. Rev. Stat. 1979, ch. 120, pars.

417 through 439.  The MFUT was imposed on the use of motor fuel on state

highways by commercial motor vehicles.  The MFUT is a tax imposed upon

the consumption of fuel within the State of Illinois under section 13a

of the Motor Fuel Tax Law (35 ILCS 505/13a).  In Illinois, the MFUT is

approximately 28 cents per gallon of fuel consumed on the state

highways.  A motor carrier who purchases fuel outside Illinois but

consumes the fuel inside Illinois is required to pay the fuel tax to

Illinois.  A carrier who purchases motor fuel within Illinois but

consumes the fuel outside of the state is entitled to a credit or refund

for the tax paid.  The tax is included in the price of fuel in Illinois

and is collected at the pump. 

	The Motor Fuel Tax Law provides for the disposition of the

collected taxes.  The proceeds are divided among the State Construction

Account Fund, the State Boating Act Fund, the Grade Crossing Protection

Fund, the Transportation Regulatory Fund, the Vehicle Inspection Fund,

and the Road Fund.  The generated taxes also pay for the cost of

administering the Motor Fuel Tax Law.

	In 1991, Congress enacted the Intermodal Surface Transportation

Efficiency Act of 1991 (49 U.S.C. § 101 et seq.(1994)(the Act). The Act compels states to adopt laws or regulations that conform to the IFTA. 

Under the IFTA, motor carrier owner-operators pay all their state fuel

tax obligations quarterly to their base state, the state in which they are registered.  The base states then transfer the appropriate funds to

the taxing state, the state where the fuel tax liability was incurred. 

This system prevents owner-operators from having to make multiple

payments to different states in which they operate.  Illinois, as a

taxing state, maintains IFTA fuel tax returns for only Illinois-based

taxpayers.

	On February 19, 1999, plaintiffs filed a complaint against the

defendant.  Plaintiffs claimed that collection of the MFUT calculated

based on the number of miles driven by commercial vehicles on the

Tollway is not fairly related to any services provided by the state in

connection with interstate travel.  Plaintiffs maintain that they pay

tolls to the Illinois State Toll Highway Authority for their use of the

Tollway.  Since their use of the Tollway is fully paid for by the tolls,

plaintiffs contend that the additional collection of fuel use taxes

violates the commerce clause.  Plaintiffs only challenge the imposition

of the MFUT as to fuel consumed on the Tollway.   

II.  ANALYSIS

	We begin our analysis with the recognition that statutes carry a

strong presumption of constitutionality and that the party challenging

the constitutionality of a statute bears the burden of rebutting this

presumption.  Best v. Taylor Machine Works, 179 Ill. 2d 367, 377, 689 N.E.2d 1057 (1997). We review de novo the constitutionality of a statute.  Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441, 701 N.E.2d 1056 (1998).	Where the constitutionality of a statutory provision is challenged, the courts presume that the legislature

intended to comply with the constitution.  Tully v. Edgar, 171 Ill. 2d 297, 313, 664 N.E.2d 43 (1996).  When deciding if the attacking party's

burden has been met, the courts have a duty to sustain legislation as

constitutional whenever possible.  See People ex rel. Devine v. Murphy, 181 Ill. 2d 522, 527, 693 N.E.2d 349 (1998).

	In addition, the standard of review of a trial court's dismissal

of a complaint pursuant to section 2-619 is also de novo.  Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).

A.  	OOIDA'S STANDING

	Plaintiffs argue that OOIDA has standing to challenge the MFUT, and

therefore, the trial court improperly dismissed its complaint. 

Specifically, plaintiffs maintain that because individual OOIDA members

have been harmed by the assessment of the MFUT for their use of the

Tollway, they have standing in this case.  Defendant argues that OOIDA

has suffered no injury in fact due to the MFUT and, therefore, has no

real interest in the outcome of the action.

	The doctrine of standing is designed to insure that the courts are

accessible to resolve actual controversies between parties and not

"address abstract questions, moot issues, or cases brought on behalf of

others who may not desire judicial aid."  Jenner v. Wissore, 164 Ill. App. 3d 259, 267, 517 N.E.2d 1220 (1988).  "[C]ourts do not rule on the

constitutionality of a statute where the complaining party is only theoretically affected by the alleged invalidity of the provision." 

Moran Transportation Corp. v. Stroger, 303 Ill. App. 3d 459, 470, 708 N.E.2d 508 (1999), citing Illinois Municipal League v. Illinois State Labor Relations Board, 140 Ill. App. 3d 592, 599, 488 N.E.2d 1040 (1986).  To have an "actual controversy," a party must show that the

underlying facts of the case are not moot or premature; there must be

a concrete dispute that admits of an immediate and definitive

determination of the party's rights.  Illinois Municipal League, 140 Ill. App. 3d at 606.  

	Under Illinois law, an association's status is, by itself,

insufficient to allow it to assert an action for declaratory and

injunctive relief on behalf of its members.  To have standing to

maintain such an action, an association must have a recognizable

interest in the dispute peculiar to itself and capable of being

affected.  Nolan v. Hillard, 309 Ill. App. 3d 129, 138, 722 N.E.2d 736 (1999), citing Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 377, 362 N.E.2d 298 (1977).  An association does not have

standing to sue on behalf of its members, even those members allegedly

affected by the challenged action, "unless it has been or will be

directly injured and therefore has a personal claim related to its own

property, or that it has suffered or will suffer injury to a substantive

legally protected interest in its individual capacity."  Cable Television & Communications Ass'n of Illinois v. Ameritech Corp., 288 Ill. App. 3d 354, 357, 680 N.E.2d 445 (1997).

	In Forsberg v. City of Chicago, 151 Ill. App. 3d 354, 502 N.E.2d 283 (1986), a class of individuals who were subject to a boat mooring

tax, challenged the constitutionality of the tax imposed by city

ordinance.  This court held that the Chicagoland Boat Owners Association

(CBOA), a voluntary association consisting of individual boat owners who

use the Chicago rivers and lakefront, and Chicago Yachting Association

(CYA), a not-for-profit corporation and voluntary association, did not

have standing to sue.  This court stated that the associations had shown

no direct injury.  "The CBOA and the CYA are not subject to the tax. 

Neither association owns moorings or pays mooring fees in Chicago." 

Forsberg, 151 Ill. App. 3d at 370.  This court further noted that "the associations here do not pay mooring fees.  Only the members of the

associations pay mooring fees."  Forsberg, 151 Ill. App. 3d at 370.

	The case at bar is directly analogous.  OOIDA has failed to allege

a direct injury.  As the trial court noted, OOIDA is an association of

owners and operators, but is neither an owner nor operator itself and

does not pay any of the MFUT being challenged.  OOIDA'a only injury

alleged in plaintiffs' complaint centers on the interest of its

individual members.  OOIDA argues that because its members pay the MFUT,

it is directly injured.  However, as Forsberg demonstrates, that claim must fail.

	OOIDA's claim that it has standing pursuant to federal guidelines

must also fail.  Under that standard, "an association has standing to

bring suit in its representative capacity in certain situations,

notwithstanding the fact that the association suffered no direct

injury." Forsberg, 151 Ill. App. 3d at 371. Illinois courts have explicitly rejected that standard.  See Forsberg, 151 Ill. App. 3d at 371. ("Illinois decisions***clearly hold that an association's

representational capacity alone is not enough to give it standing"); see

also Cable Television, 288 Ill. App. 3d at 358 (it is well established that Illinois courts are not required to follow federal law on issues

of standing).  As the remaining plaintiffs have standing, we address

their arguments on appeal.

B.  	CONSTITUTIONALITY OF THE MOTOR FUEL USE TAX

	Congress is granted the power "to regulate Commerce" under the

Commerce Clause of the United States Constitution.  U.S. Const. art. I.,

§8, cl. 3.  "While expressed as a grant of power to Congress, it is also

well established that the commerce clause 'of its own force protects

free trade among the States' [Citation] and may serve in certain

circumstances as a basis for invalidating state laws that interfere with

interstate commerce."  Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 260, 665 N.E.2d 1246 (1996),  citing Armco Inc. v. Hardesty, 467 U.S. 638, 642, 81 L. Ed. 2d 540, 545, 104 S. Ct. 2620, 2622 (1984).

	Initially, we must determine the nature of the MFUT.  While

plaintiffs assert that the MFUT is, in implementation, a "user fee," the

defendant maintains that the MFUT is a general revenue "use tax."   A

user fee is a fee or tax "designed and defended as a specific charge

imposed by the State for the use of state-owned or state-provided

transportation or other facilities and services." Commonwealth Edison Co. v. Montana, 453 U.S. 609, 621, 69 L. Ed. 2d 884, 897, 101 S. Ct. 2946, 2955 (1981).  In a supplemental brief, plaintiffs argue that the

Supreme Court changed the definition of a user fee in United States v. United States Shoe Corp., 523 U.S. 360, 363-64, 140 L. Ed. 2d 453, 457, 118 S. Ct. 1290 (1998).  There, the Supreme Court said a user fee is "a

charge designed as compensation for government supplied services,

facilities, or benefits."  United States v. United States Shoe Corp., 523 U.S. at 361, 140 L. Ed. 2d at 454, 118 S. Ct. at 1292.  This

language is not substantively different from that used in Commonwealth Edison.  We also note that plaintiffs relied heavily upon the definition of "user fee" found in Commonwealth Edison in their opening brief.  Any distinction does not change our analysis.

	Plaintiffs insist that the challenged MFUT is a user fee because

it is laid for compensation of the use of the highways.  Plaintiffs

argue that this is evident because motor vehicles must purchase fuel to

use the highway.  Therefore, according to the plaintiffs, "the only question is whether the tax is in excess of fair compensation for the

privilege of using state roads," and because the privilege of using the

Tollway has been paid for by tolls, the MFUT is disproportionate to the

cost of the services or facilities provided by the state and therefore

violates the commerce clause.

	We hold that the MFUT is a general revenue tax and not a user fee. 

A plain reading of the statute describes the MFUT as "a tax***upon the

use of motor fuel upon highways of this State by commercial motor

vehicles." 35 ILCS 505/13a (West 1998). The MFUT is, in implementation, a tax designed to prevent the avoidance of Illinois sales tax and

Illinois motor fuel tax.  As the defendant correctly asserts, the MFUT

is a species of use tax.  Just as the state's general use tax imposes

"[a] tax***upon the privilege of using in this State tangible personal

property purchased at retail from a retailer" (35 ILCS 105/3 (West

1998)), the MFUT is intended as a "tax upon the privilege of operating

each motor vehicle***upon the public highways and the waters of this

State" (35 ILCS 505/17 (West 1998)).  Just as the legislature enacted

the use tax "'to prevent avoidance of the [retailers' occupation] tax

by people making out-of-State purchases, and to protect Illinois

merchants against such diversion of business to retailers outside of

Illinois'" (Browns Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 418, 665 N.E.2d 795 (1996), quoting Klein Town Builders, Inc. v. Department of Revenue, 36 Ill. 2d 301, 303 (1996)), so too the legislature enacted the MFUT to prevent out-of-state truckers who drive through Illinois from

avoiding purchasing fuel and paying taxes in Illinois.  It requires

truckers to either purchase motor fuel in Illinois, thereby paying the

MFUT, or if they purchase fuel outside Illinois, they then pay an

outstanding fuel tax obligation to their base state, which will then

remit a sufficient portion to Illinois to reimburse Illinois for the

MFUT that the trucker would have paid had he purchased the fuel in

Illinois.  Every person who purchases gasoline or diesel fuel in

Illinois pays sales tax and motor fuel tax on that purchase.  The MFUT

thus places commercial motor vehicles in the same position as all other

persons who purchase gasoline or diesel fuel in Illinois.  Similarly, all vehicles driven on the Tollway must pay tolls for the privilege,

even if they purchased their gasoline in Illinois.

	Plaintiffs' argument that because the MFUT is calculated based on

the use of state highways it therefore must be a user fee is

unpersuasive.  The Appellate Division of the New York Supreme Court

recently rejected a similar challenge by OOIDA to New York's version of

the MFUT to the extent it was assessed on fuel consumed on the New York

Thruway (a toll road).  There, the court held: "Cases construing taxes

imposed for the 'privilege' of conducting activities within the levying

state normally involve general revenue assessments, not user fees."

Owner-Operator Independent Drivers Association v. Urbach, 718 N.Y.S.2d 282, 285, 279 A.D.2d 171 (2000), citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 51 L. E. 2d 326, 97 S. Ct. 1076 (1977).  A tax levied only "for the privilege of operating any qualified motor vehicle

upon the public highways" is not, by the plain implication of its

language, a user fee.  Owner-Operated Independent Drivers Association, 718 N.Y.S.2d at 285, 279 A.D.2d at ____. As to plaintiffs' argument that

as the MFUT is calculated based on the use of state highways it is a

user fee, the court in Owner-Operated noted, "this argument fails to accord appropriate significance to the role of apportionment in

assessing the propriety of a State tax measure under the Commerce

Clause."  Owner-Operated, 718 N.Y.S.2d at 286, 279 A.D.2d at ____.  "In the realm of taxation, the requirement of apportionment plays a similar

role by assuring that interstate activities are not unjustly burdened

by multistate taxation."  General Motors Corp. v. Tracy, 519 U.S. 278, 298, n.12, 136 L. Ed. 2d 761, 779 n.12, 117 S. Ct. 811, 824 n.12 (1997). 

The method of apportionment of the MFUT, as instructed by the

International Fuel Tax Agreement, is designed to assure fairness by

basing the tax upon the number of miles actually traveled on Illinois'

roads.  The collection scheme alone, therefore, is not proof that the

MFUT is implemented as a user fee.  

	An examination of Illinois' disposition of the funds from the tax lends additional support to defendant's argument that the MFUT is a

general revenue tax.  The proceeds are deposited in the State

Construction Fund, the State Boating Act Fund, the Grade Crossing

Protection Fund and the Transportation Regulatory Fund among others. 

The statute authorizes a portion of the funds to be distributed to

municipalities and counties without a requirement that they expend the

funds on transportation related purposes.  35 ILCS 505/8(e)(2) (West

1998).  So, while some expenditures are clearly transportation related,

some funds receiving proceeds from the MFUT are not related to

transportation at all.  The wide array of disposition evinces Illinois'

intent to use the proceeds from the tax for general revenue purposes.

	The cases cited by plaintiffs criticizing user fees invalidated

fees that which were specifically designed to compensate for specific charges

and were not proportional to the cost of the service.  For example, in Ingels v. Morf, 300 U.S. 290, 81 L. Ed. 653, 57 S. Ct. 439, (1937), a caravanning permit fee of $15 was purportedly designed to reimburse the

state for expenses that the state may incur in the administration and

enforcement of the California Caravan Act (St. Cal. 1935, pp. 1453, 1454, §§ 2-4, 6) and the added expense of policing the highways for

safety purposes.  The funds from the fee were specifically allocated to

account for the cost of the Caravanning Act's imposition.  The fee was

invalidated because the proceeds from the fee vastly exceeded the cost. 

The tax at issue in the case at bar is clearly distinguishable from the

"fee" discussed in the case above.  The MFUT is not laid to compensate

for a specific charge.  Therefore, for all of the above-mentioned

reasons, we hold that the MFUT is a tax and not a user fee.

	Plaintiffs argue that even if the MFUT is held to be a tax, it is

still unconstitutional because it is not fairly related to the services

provided by the state.  Under the four-part test announced in Complete Auto, 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed. 2d 326, a state tax will only be sustained as nonviolative of the commerce clause if the tax: (1)

is applied to an activity with a substantial nexus with the taxing

state; (2) is fairly apportioned; (3) does not discriminate against

interstate commerce; and (4) is fairly related to the services provided

by the state.

	The fourth prong of the test is the only prong at issue in this

case.  Plaintiffs' complaint alleges that the Illinois State Toll

Highway Authority receives no funds from the state for the construction,

maintenance or operation of the Tollway.  Plaintiff maintains that the

tolls collected by the authority more than cover the operating costs of

the Tollway.  Therefore, plaintiff argues, "since the Tollway is

financially independent of the State of Illinois, the collection of fuel

use taxes on fuel consumed on the Tollway is not fairly related to the services provided by the State."  	 

	As the Supreme Court noted in Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 199-200, 131 L. Ed. 2d 261, 281, 115 S. Ct. 1331, 1345 (1995):

	"The fair relation prong of Complete Auto requires no detailed accounting of the services provided to the taxpayer

on account of the activity being taxed, nor, indeed, is a

State limited to offsetting the public costs created by the

taxed activity.  If the event is taxable, the proceeds from

the tax may ordinarily be used for purposes unrelated to the

taxable event.  Interstate commerce may thus be made to pay

its fair share of state expenses and "'contribute to the cost

of providing all governmental services, including those

services from which it arguably receives no direct

'benefit.'"  Oklahoma Tax Comm'n, 514 U.S. at 199-200, 131 L. E. 2d at 281, 115 S. Ct. at 1345. 

Complete Auto's fourth criterion requires only that the measure of the tax be reasonably related to the extent of the contact, since it is the

taxpayer's presence or activities in the state that may properly be made

to bear a just share of the tax burden.  Commonwealth Edison Co. v. Montana, 453 U.S. at 626, 69 L. Ed. 2d at 900, 101 S. Ct. at 2958. 

	In Commonwealth Edison Co., the State of Montana imposed a tax upon the mining of coal within the state.  Commonwealth Edison filed suit,

alleging that the coal mining tax violated the commerce clause as

Montana took in much more revenue from the tax than the state provided

in services to the utility.  The Supreme Court rejected this argument,

holding, "we have little difficulty concluding that the Montana tax

satisfies the fourth prong of the Complete Auto Transit test."  Commonwealth Edison Co., 453 U.S. at 626, 69 L. Ed. 2d at 900, 101 S. Ct. at 2958. The Court reasoned that as the tax was measured as a

percentage of the value of the coal taken, "the Montana tax is in 'proper proportion' to appellant's activities within the State and,

therefore, to their 'consequent enjoyment of the opportunities and

protections which the State has afforded' in connection with those

activities." Commonwealth Edison Co., 453 U.S. at 626, 69 L. Ed. 2d at 900, 101 S. Ct. at 2958; quoting General Motors Corp. v Washington, 377 U.S. 436, 441, 12 L. Ed. 2d 430, 435, 84 S. Ct. 1564, 1568 (1964).

	Similarly, in Allegro Services, Ltd., v. Metropolitan Pier and Exposition Authority, 172 Ill. 2d 243, 665 N.E.2d 1246 (1996), an "airport departure tax," a per-passenger charge on providers of ground

transportation services from O'Hare and Midway Airports, imposed by a

metropolitan authority to fund a convention center expansion, was found

to satisfy the fair relationship requirement and was therefore, upheld

as constitutional.  The court first found that the charge was not a

"user fee" within the meaning of  Commonwealth Edison.  Allegro Services, Ltd., 172 Ill. 2d at 264. The court then held that "'[w]hen a tax is assessed in proportion to a taxpayer's activities or presence

in a State, the taxpayer is shouldering its fair share of supporting the

State's provision of "police and fire protection, the benefit of a

trained work force, and 'the advantages of a civilized society.'"'

[Citations.] Allegro Services, Ltd., 172 Ill. 2d at 265 quoting Commonwealth Edison Co., 453 U.S. at 627, 69 L. Ed. 2d at 900, 101 S. Ct. at 2958.  

	The court in Allegro expanded the reasoning put forth in Commonwealth Edison by holding that "[t]his rationale applies with equal force whether tax revenues are collected for general governmental purposes or are earmarked for a specific public purpose as in the

present case."  Allegro Services, Ltd., 172 Ill. 2d at 265.  In that case, the airport departure taxes collected were used to alleviate the

financial burden of the expansion of McCormick Place.  We disagree with

the argument in plaintiffs' supplemental brief that the holding in

Allegro provides a basis for us to distinguish the holding in Owner- Operated Independent Drivers Ass'n, 718 N.Y.S.2d 282, 279 A.D.2d 171.

	The MFUT clearly comports with the requirements of the fourth prong

of the Complete Auto test.  First, the tax at issue here is reasonably related to the plaintiffs' activities within the State of Illinois.  The

tax is calculated based upon the gallons of motor fuel used by

commercial vehicles in interstate commerce while traveling on Illinois'

highways.  The measurement of the tax is, therefore, directly

proportional to plaintiffs' activities in the state. 

	Second, plaintiffs, as commercial vehicle owners and operators,

derive benefits from the privilege of traversing on Illinois' highways. 

The truck owner-operators utilize the Tollway for commercial purposes,

namely to transport their goods and services.  But the benefit directly

relating to driving on the Tollway is clearly not the only benefit the

owner-operators receive.  As the trial court noted, "plaintiffs'

presence in this lawsuit is just one of the benefits the state

provides."  In citing to Goldberg v. Sweet, 488 U.S. 252, 267, 102 L. Ed. 2d 607, 620-21, 109 S. Ct. 582, 592 (1989), the trial court

highlighted:

	"'[I]nterstate commerce may be required to contribute to the

cost of providing all governmental services, including those services from which it arguably receives no direct

"benefit."'[Citation.] ***The fourth prong of the Complete Auto test focuses on the wide range of benefits provided to the taxpayer, not just the precise activity connected to the

interstate activity at issue***a taxpayer's receipt of police

and fire protection, the use of public roads and mass

transit, and the other advantages of civilized society

satisfied the requirement that the tax be fairly related to

benefits provided by the State to the taxpayer." (Emphasis

omitted.)

As the defendant correctly acknowledges, plaintiffs, as highway users,

also benefit from the state's expenditures on keeping the roadway safe,

i.e., administrative systems for monitoring driving privileges.  The  MFUT is reasonably related to plaintiffs' activities within the state. 

Plaintiffs, who derive direct and indirect benefits from those state

services, should be held to assume their fair share of supporting the

state's provision of those benefits.

	Third, as discussed earlier, the proceeds generated from the MFUT

are used for many purposes.  The trial judge stated that "nowhere in the

challenged MFUT did the General Assembly state these taxes are intended

to assist in the state in building and maintaining state roads and

highways."  Nor do they have to be used only for those purposes.  As the

court stated in Clark v. Poor, 274 U.S. 554, 557, 71 L. Ed. 2d 1199, 1201, 47 S. Ct. 702, 703 (1927), "since the tax is assessed for a proper

purpose and is not objectionable in amount, the use to which the

proceeds are put is not a matter which concerns the Plaintiffs."  The

state has authority to appropriate funds to the Tollway Authority. 

Graham v. Illinois  State Toll Highway Authority, 182 Ill. 2d 287, 695 N.E.2d 360 (1998).  Since the Tollway is not a wholly independent entity as plaintiffs suggest, plaintiffs cannot argue that the imposition of a tax based on fuel consumed on the Tollway is not related to state

services.     	

	Finally, it should be acknowledged that plaintiffs use the  Tollway

voluntarily.  The Tollway is their chosen method of traveling t`hrough

Illinois.  Commercial carriers are certainly not forced to utilize the

Tollway.  The thrust of plaintiffs' argument is that they must pay twice

for use of the Tollway, once through tolls and again through the MFUT. 

A similar argument was made and rejected in Hammerman v. Illinois State Toll Highway Authority, 148 Ill. App. 3d 259, 498 N.E.2d 795 (1986).  In Hammerman, Acme Barrel Company intervened in a class action lawsuit, on behalf of all motorists who use the Tollway.  Acme's complaint

alleged, among other things, that as users of the tollway must pay motor

fuel use taxes on the fuel consumed by their vehicles on the Tollway,

in addition to tolls, they were unconstitutionally charged twice for the

privilege of using the public highways of Illinois.  In rejecting Acme's

argument that the toll rate structure was "illegally excessive," this

court explicitly held that "[h]aving been given the power--indeed, the

responsibility--to levy and collect tolls for the construction,

operation and maintenance of the tollway system, we see no basis for

Acme's claim that defendants' exercise thereof violates their

constitutional rights, particularly since tollway usage-and the

attendant payment of tolls as compensation therefore--is a matter of

personal choice."  Hammerman, 148 Ill. App. 3d at 266.

  	Accordingly, as the MFUT is fairly related to the services provided by the state, we find it satisfies the four prongs of the test annunciated in in  Complete Auto Transit and is constitutional.  Consequently, the trial court properly dismissed plaintiffs' complaint.

	Accordingly, for the foregoing reasons we affirm the decision of the trial court.

	Affirmed.

	GREIMAN and THEIS, JJ., concur.