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Owner Operator Independent Drivers Ass'n v. Bower

Case Date: 09/21/2001
Court: 1st District Appellate
Docket No: 1-99-4497 Rel

FIFTH DIVISION

September 21, 2001

No. 1-99-4497

OWNER-OPERATOR INDEPENDENT DRIVERSASSOCIATION, RAYMOND KASICKI, MARINOMOTOR SERVICES, INC., and HARRY KIJOWSKI,
 Individually and on Behalf of All Others 
Similarly Situated,

               Plaintiffs-Appellants,

     v.

GLEN L. BOWER, DIRECTOR, THE DEPARTMENTOF 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 allpersons engaged in the interstate operation of commercial motor vehicleson the Illinois Tollway, filed an action for declaratory, injunctive andmonetary relief against defendant, Glen Bower, Director, IllinoisDepartment of Revenue. The plaintiffs, a trucking association, truckingcompany, and several owner-operators of commercial motor vehicle carriers,sought: (1) a declaration that the Illinois motor fuel use tax (MFUT), asapplied to commercial motor vehicles traveling on the Illinois Tollway,was unconstitutional; (2) to enjoin the defendant from collecting the taxfor fuel consumed on the Illinois Tollway; and (3) a refund of any fueltaxes paid by commercial carriers based on mileage traveled on theIllinois Tollway.

The trial court granted defendant's motion under section 2-619 of theCode of Civil Procedure (735 ILCS 5/2-619 (West 1998), motion to dismissplaintiffs' complaint. The court held that Owner-Operated IndependentDrivers Association (OOIDA) lacked standing, that plaintiffs failed tojoin all necessary parties, that plaintiffs failed to exhaust alladministrative remedies, that the voluntary payment doctrine requireddismissal and that the MFUT was constitutional. Plaintiffs now timelyappeal.

On appeal, plaintiffs argue that: (1) they were not required toexhaust administrative remedies; (2) the voluntary payment doctrine is nota bar to this action; (3) the MFUT is in the nature of a user fee and isviolative of the commerce clause; (4) even if the MFUT is a use tax, it isviolative 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 thecontentions that the plaintiffs' complaint was subject to dismissal on thebasis of the voluntary payment doctrine, the exhaustion of remediesdoctrine, or failure to join all other International Fuel Tax Agreement(IFTA) jurisdictions in this litigation. Therefore, these claims are notbefore our court on appeal.

For the following reasons, we affirm.



I. BACKGROUND

Plaintiff OOIDA is a not-for-profit association of persons andentities who own and operate motor carrier equipment. OOIDA was foundedin 1973, was incorporated in Missouri, and has over 40,000 members in theUnited States and Canada.

Plaintiff Raymond L. Kasicki is an owner-operator who resides inOhio. Kasicki, in operating his motor vehicle carrier, utilizes theIllinois Tollway. Kasicki pays his Illinois fuel use tax through thecompany 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 operatinga fleet of commercial motor vehicles based in Illinois. Vehicles operatedby Marino utilize the Illinois Tollway. Marino pays its Illinois fuel usetax directly to the defendant.

Plaintiff Harry Kijowski is an owner-operator who resides in NewYork. Kijowski, in operating his motor vehicle carrier, utilizes theIllinois Tollway. Kijowski pays his Illinois fuel use tax to the New YorkDepartment of Taxation And Finance.

Defendant, Glen L. Bower, is the Director of the Illinois Departmentof Revenue, and in that capacity is responsible for the collection of theMFUT.

In 1953, the Illinois General Assembly authorized the creation of theIllinois Tollway System. The Illinois Tollway (the Tollway) is operatedby the Illinois State Toll Highway Authority, an instrumentality of theState of Illinois. The cost of operating the Tollway is paid for throughtolls, 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 theprivilege of operating any motor vehicle upon the public highways of thestate. In 1977, the legislature amended the Motor Fuel Tax Law to includean additional tax measure. Ill. Rev. Stat. 1979, ch. 120, pars. 417through 439. The MFUT was imposed on the use of motor fuel on statehighways by commercial motor vehicles. The MFUT is a tax imposed upon theconsumption of fuel within the State of Illinois under section 13a of theMotor Fuel Tax Law (35 ILCS 505/13a). In Illinois, the MFUT isapproximately 28 cents per gallon of fuel consumed on the state highways. A motor carrier who purchases fuel outside Illinois but consumes the fuelinside Illinois is required to pay the fuel tax to Illinois. A carrierwho purchases motor fuel within Illinois but consumes the fuel outside ofthe state is entitled to a credit or refund for the tax paid. The tax isincluded in the price of fuel in Illinois and is collected at the pump.

The Motor Fuel Tax Law provides for the disposition of the collectedtaxes. The proceeds are divided among the State Construction AccountFund, the State Boating Act Fund, the Grade Crossing Protection Fund, theTransportation Regulatory Fund, the Vehicle Inspection Fund, and the RoadFund. The generated taxes also pay for the cost of administering theMotor Fuel Tax Law.

In 1991, Congress enacted the Intermodal Surface TransportationEfficiency Act of 1991 (49 U.S.C.