The Appellate Court, First District, reversed the judgment of the circuit court and remanded the cause for further proceedings. ( 14 Ill. App.3d 33.) It held that if the plaintiff is determined to be a proper representative of the class she purports to represent, the class action allegations of the complaint should not have been stricken, but that the trial court erred in entering judgment for the plaintiff on the pleadings and in its determination of the amount of damages awarded to the plaintiff. We allowed GM's petition for leave to appeal.

("Where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it, a constructive trust arises.") (quoting Restatement of Restitution § 160 (1937)); Mortell v. Beckman, 157 N.E.2d 63, 65 (Ill. 1959) ("[W]here one occupies the fiduciary relation of agent for another, and thereby gains something for himself which in equity and good conscience he should not be permitted to keep, equity will raise a constructive trust and compel him either to turn it over to the equitable owner, or to otherwise execute the trust as the court may direct."); In re Estate of Rupp, 281 N.E.2d 717, 720 (Ill.App.Ct. 1972) ("In situations where a fiduciary transcends that confidence by using the subject property for his or her own benefit, a constructive trust will arise by operation of law."); Hagerty v. General Motors Corp., 302 N.E.2d 678 (Ill.App.Ct. 1973) ("A constructive trust comes into being immediately upon the happening of the circumstances that give rise to the remedy of restitution."); Perlman v. First Nat'l Bank, 305 N.E.2d 236, 250 (Ill.App.Ct. 1973) (same);Stansbury v. United States, 543 F. Supp. 154, 157 (N.D. Ill. 1982), aff'd, 735 F.2d 1367 (7th Cir. 1984) ("The law in Illinois is clear that a constructive trust arises at the time of the wrong."); Martin, 643 N.E.2d at 745 (quoting Restatement of Restitution § 160 (1937)).Suttles, 533 N.E.2d at 904 ("A constructive trust is created when a court declares the party in possession of wrongfully acquired property as the constructive trustee of that property.");

rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (allowing a certified class action to continue despite the subsequent mooting of the named plaintiff's claim) with Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), and U.S. Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (allowing a named plaintiff to appeal the denial of class certification despite the subsequent mooting of his individual claim). Our holding in division I also obviates the necessity to consider whether plaintiff and the alleged class members should have been required to exhaust administrative remedies by filing for tax refunds with the Iowa Department of Revenue. See, as bearing on this point, Javor v. State Board of Equalization, 12 Cal.3d 790, 527 P.2d 1153, 117 Cal.Rptr. 305 (1974); Harrison Sheet Steel Co. v. Lyons, 15 Ill.2d 532, 155 N.E.2d 595 (1959); Hagerty v. General Motors Corp., 14 Ill. App.3d 33, 302 N.E.2d 678 (1973), modified, 59 Ill.2d 52, 319 N.E.2d 5 (1974); Van Emmerik v. State, 298 N.W.2d 804 (S.D. 1980); Iowa Admin. Code 730-12.9 (claim for refund of tax); [All States Unit] St. Loc.Tax Serv. (P-H) ¶ 92, 729 (Jan. 1, 1962); Annot., 10 A.L.R. 4th 655 (1981). Under the unusual facts in this appeal, we determine we are without jurisdiction and the appeal is dismissed.

As was pointed out in Gaffney v. Shell Oil Co. (1974), 19 Ill. App.3d 987: "One line of authority holds that there can be no such action: Newberry Library v. Board of Education (1944), 387 Ill. 85, 55 N.E.2d 147; Peoples Store of Roseland v. McKibbin (1942), 379 Ill. 148, 39 N.E.2d 995; Heller v. Fergus Ford, Inc. (1973), 15 Ill. App.3d 868, 305 N.E.2d 352; Reardon v. Ford Motor Co. (1972), 7 Ill. App.3d 338, 287 N.E.2d 519. A second line of authority holds that multiple claims for damages in varying amounts which have to be separately adjudicated does not bar a class suit if the other requirements of such a suit are present. ( Fiorito v. Jones (1968), 39 Ill.2d 531, 236 N.E.2d 698; Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill.2d 532, 155 N.E.2d 595; Lee v. City of Casey (1915), 269 Ill. 604, 109 N.E. 1062; Rodriguez v. Credit Systems Specialists, Inc. (1974), 17 Ill. App.3d 606, 308 N.E.2d 342; Perlman v. First National Bank (1973), 15 Ill. App.3d 784, 305 N.E.2d 236; Hagerty v. General Motors Corp. (1973), 14 Ill. App.3d 33, 302 N.E.2d 678.)" 19 Ill. App.3d 987, 989-90. The legislature recently enacted section 57.2 of the Civil Practice Act (Pub. Act 80-809), setting forth the prerequisites for the maintenance of class actions. It provides:

The trial court also ordered that if defendant persisted in the practice of overcharging, it must pay one-half of the amounts collected into a protest fund to be maintained by the State Treasurer. We reversed. 14 Ill. App.3d 33. On further appeal, the supreme court again reversed, affirming the decision of the trial court.

• 2 There must be a transfer of ownership or title to personal property for a consideration in order to constitute a "sale" under the Act. ( Hornof v. Kroger Co., 35 Ill.2d 125, 132 (1966); Hagerty v. General Motors Corp., 14 Ill. App.3d 33, 37 (1973); Bradley Supply Co. v. Ames, 359 Ill. 162, 170 (1934).) The Department cites Hornof in support of an argument that "gross receipts" and "retail value" represent the same thing as far as the tax base is concerned and that "gross receipts" does not necessarily reflect a sale for cash but is in effect the value placed upon the property by the seller and accepted by the buyer.

Whether there is a common interest among all members of the class who were "compelled" to pay part of the cost of sidewalk replacement under the program without statutory authority and in the results thereof, and whether plaintiffs are able adequately to represent the class, can be determined only after answer and hearing. See Hagerty v. General Motors Corp., 59 Ill.2d 52, 57, affirming in part, reversing in part and remanding 14 Ill. App.3d 33; and Perlman v. First National Bank of Chicago, 15 Ill. App.3d 784; see also Fiorito v. Jones, 39 Ill.2d 531, 543-44. Whether plaintiffs would be entitled to a writ of mandamus can likewise only be determined after answer and hearing. If plaintiffs are then able to show a clear and legal right to the writ, that the corporate authorities have abused their discretion in refusing to replace or repair sidewalks in compliance with their duty, the issuance of the writ of mandamus may be proper ( People v. City of Rock Island, 45 Ill. App.2d 76, 84-86), unless it is established that there is available to the plaintiffs some other plain, adequate and complete method of obtaining the relief to which the plaintiffs are entitled.

We have examined the trial record and the briefs submitted in this court and have heard oral arguments. All counsel on both sides have represented their clients with vigor and legal ability to a high degree, but we reject out of hand any assertion that the notices sent by Myers to the individual taxpayers "approached overt deception," that it was "aimed at misleading" the class he represented, that it was "a deceiving warning," or that the resistance to the State's Attorney's motion in the supreme court to change the order creating the fund was a "subterfuge." If the county's motion had been allowed, there would have been no fund, and the absence of a fund has often been assigned as a ground for dismissal of a class action. (See Perlman v. First National Bank, 15 Ill. App.3d 784, 305 N.E.2d 236; Hagerty v. General Motors Corp., 14 Ill. App.3d 33, 302 N.E.2d 678; Reardon v. Ford Motor Co., 7 Ill. App.3d 338, 287 N.E.2d 519.) Significantly, the objectors had notice of the motion and Continental Bank's attorneys had an observer present at the hearing, but none of the objectors joined in the motion.

(See, Tornquist, Roadmap of Illinois Class Actions, 5 Loyola L.J., 45, 53 (1974).) One line of authority holds that there can be no such action: Newberry Library v. Board of Education (1944), 387 Ill. 85, 55 N.E.2d 147; Peoples Store of Roseland v. McKibbin (1942), 379 Ill. 148, 39 N.E.2d 995; Heller v. Fergus Ford, Inc. (1973), 15 Ill. App.3d 868, 305 N.E.2d 352; Reardon v. Ford Motor Co. (1972), 7 Ill. App.3d 338, 287 N.E.2d 519. A second line of authority holds that multiple claims for damages in varying amounts which have to be separately adjudicated does not bar a class suit if the other requirements of such a suit are present. ( Fiorito v. Jones (1968), 39 Ill.2d 531, 236 N.E.2d 698; Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill.2d 532, 155 N.E.2d 595; Lee v. City of Casey (1915), 269 Ill. 604, 109 N.E. 1062; Rodriguez v. Credit Systems Specialists, Inc. (1974), 17 Ill. App.3d 606, 308 N.E.2d 342; Perlman v. First National Bank (1973), 15 Ill. App.3d 784, 305 N.E.2d 236; Hagerty v. General Motors Corp. (1973), 14 Ill. App.3d 33, 302 N.E.2d 678.) Although members of the plaintiff class in the present case have a community of interest in recovering overpayments made to Shell retailers, each member would have to substantiate his own claim. Likewise, each member of the defendant class would have to resist distinct assertions of excess charges arising from unrelated transactions.

The court held that the tax money which was returned to the defendant was money that did not belong to him but to the purchasers who had paid it; that there was no reason to distinguish the amount of money collected subsequent to the ruling from that collected before it; and upheld the imposition of a constructive trust on both sums. In Hagerty v. General Motors (1973), 14 Ill. App.3d 33, the plaintiff filed a class action alleging that the defendant had wrongfully charged a tax. The trial court granted the plaintiff's motion for judgment on the pleadings individually but struck the class action allegations, apparently because of the absence of a common fund. The Appellate Court reversed both orders and remanded on the grounds that an evidentiary hearing was required.