specially concurring:
I specially concur because I otherwise agree with this court’s determination of the merits of this cause, especially with regard to the Federal civil rights claim. However, the defendants reiterate that the plaintiffs have failed to state a cause of action which ought to be entertained in equity. Therefore, the defendants argue the cause should be dismissed with prejudice as the judgment is void for lack of jurisdiction. Any Illinois court is required, when the issue is raised, to initially determine if jurisdiction lies, e.g., whether a recognized cause of action lies. (Lambert v. City of Lake Forest (1989), 186 Ill. App. 3d 937, 940; Wagner v. Kepler (1951), 411 Ill. 368, 371.) Upon review of the entire proceedings, I believe the plaintiffs have failed to state an equitable cause of action recognizable in the State of Illinois.
The plaintiffs contend that the assessment of interest penalties beyond the date of payment is not authorized by statute and therefore is “unauthorized at law.” This court, in plaintiffs’ first perfected appeal, agreed with plaintiffs’ semantical logic. However, “unauthorized at law” is a term of art and is much narrower than the implications of the prior opinion of this court. “Unauthorized at law” connotes a lack of jurisdiction. It means the lack of authority to be right or wrong. It means what is done is beyond the defendant’s scope of office. The alleged improper act is totally void, not because it was improperly done but because the defendant(s) did not have the power to be right or wrong with regard to his actions. La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 324; People ex rel. Williams v. McDonald (1970), 44 Ill. 2d 349, 351-53; Hulse v. Kirk (1975), 28 Ill. App. 3d 839, 843-46.
It is clear to me, and conceded by the plaintiffs, that the defendants had the power/authority to assess interest penalties. Therefore, the collector’s computation or determination of the amount of the assessment, even if wrong, was not “unauthorized at law.”
Therefore, I would determine the plaintiffs have failed to state an equitable cause of action recognizable in this State, would declare the judgment void, and would dismiss this cause with prejudice without addressing the appeal further, exclusive of the Federal civil rights claim.