dissenting:
I am unable to concur with the majority of the court. In my opinion the attorneys’ fees should have been awarded by the trial court. In dissenting, I adopt the view expressed in Flynn v. Kucharski, 16 Ill.App.3d 624, 306 N.E.2d 726, and rely on tire reasoning stated in that opinion. Both Illinois and out-of-state decisions on the issue at hand are reviewfed therein and I believe it unnecessary to repeat and discussion of these cases since they have led me to the same conclusion as reached in the Flynn case.
The only relevant factual difference between the Flynn case and tire instant case appears in the constituents of the plaintiff class. In Flynn the members of tire plaintiff class were taxpayers who successfully recovered funds unconstitutionally withheld by defendants which funds were to be ultimately deposited with the corporate fund of Cook County, whereas in the case before our court, it is the municipal bodies who are the members of the plaintiff class and who are entitled to the benefit of the funds. Nevertheless, in each case the attorneys’ fees sought are out of a fund under the court’s control which has been recovered from the defendants who unconstitutionally withheld the funds and the recovery is for the benefit of one or more taxing bodies.
I believe reasons to justify a recovery appear even more emphatically in the case before us. It should be noted there is a specific recovery by each of the members of the plaintiff class, and unlike Flynn, the members of the class are to receive the fund directly. If the attorneys had not prosecuted the case as a class action, each of these taxing bodies might have had to litigate its own case to recover its share of the funds held by the defendants. Every member of the class was benefited as a result of the class action through the efforts of the attorneys and none should be given an unfair advantage by not sharing in costs and attorneys fees. From time to time the attorneys for the named plaintiffs made four mailings to the officials of the governmental bodies including the objectors making up the class of plaintiffs. Such mailing advised the members of the class of the pendency and status of the litigation. Those members of the class who now object to the allowance of attorneys’ fees could have requested exclusion from the class, in which case they would have been free to file their" individual suits making their own arrangements concerning payment of attorneys’ fees. It should be noted that if these objectors had requested exclusion from the class and also not filed an individual suit, there would be no benefit accruing to them as far as any fund is concerned.
Finally, I wish to emphasize that Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill.2d 126, 281 N.E.2d 338, and Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465, both cited by die majority to bolster its conclusion, do not furnish the needed support. In neitiier case did the plaintiffs recover illegally held funds nor was there any fund brought by the plaintiffs into the court. The court in both cases refused to assess against the unsuccessful litigant (defendants) the fees for the successful litigants’ (plaintiffs) attorneys. In Rosemont, the plaintiffs’ attorneys petitioned the trial court for an allowance against the defendants of plaintiffs’ attorneys’ fees and costs. In Hoffman, the comt said, as pointed out by my colleagues, “We are aware of no authority under which the process of tax collection and distribution could have been interrupted to divert from governmental bodies that had levied the taxes an amount fixed by the court as fees for the attorneys for the plaintiffs.” Noting that it is the defendants who represent the governmental bodies, it is apparent that it is from the unsuccessful defendants the court refused to take tax moneys for the fees of plaintiffs’ attorneys.
The instant case is clearly distinguishable because plaintiffs’ representative action has resulted in the creation of a fund out of the wrongfully withheld tax monies recovered from defendants and the benefit of the fund is to be shared by the plaintiff class. Such a situation clearly falls within the rule followed by a majority of the courts;
“In the United States, a successful litigant is not usually reimbursed for his counsel fees — the largest item of his expenses. But when the litigation which he instituted salvages assets which others will share, i.e., creates, increases or protects a fund for the benefit of a class of which he is a member, the resultant fund may be charged with all necessary expenses incurred in achieving it. Not by the unsuccessful party are the expenses of the successful litigant paid, but by the class which would have had to pay these expenses had it brought the suit.” Hornstein, Legal Therapeutics: The “Salvage” Factor in Counsel Fee Awards, 69 Harv. L. Rev. 658 (1956).
Accordingly, I believe the judgment of the circuit court of Tazewell County should be reversed.