The appellees also argue that the requirement of uniformity of taxation is satisfied because each party to a law suit is obliged to pay his fair share of the anticipated use of the law library. Considering the first two of the plaintiff's contentions in combination we would observe that the Appellate Court for the First District in Moseid v. McDonough, 103 Ill. App.2d 23, considered a predecessor statute which authorized the collection of a fee for a county law library. It appears that a constitutional charge was made in that case, too, that the payment of the library fee required the litigant to "purchase justice" in violation of section 19 of article II of the Illinois constitution. It was unnecessary for the appellate court to consider the question but it did observe: "In view of our conclusion as to point (4) below, we need not resolve this argument. We state in passing, nevertheless, that we believe the position to be untenable in the light of Morrison Hotel Restaurant Co. v. Kirsner, 245 Ill. 431, 92 N.E. 285. Cf. Williams v. Gottschalk, 231 Ill. 175, 83 N.E. 141.
39 Ill.2d 531, 544. In Moseid v. McDonough (1st Dist. 1968), 103 Ill. App.2d 23, 243 N.E.2d 394, this court upheld a class action by a class consisting of all defendants who appeared in civil cases and were required, under the County Law Library Act, to pay a one dollar library fee. The suit also challenged the constitutionality of the act.
The basic test for the maintainability of a class action in Illinois is whether there is a "community of interest" among the class members. A typical explanation of this test is found in Moseid v. McDonough (1968), 103 Ill. App.2d 23, 243 N.E.2d 392. Essentially this same language is repeated in a great many cases. "Factors to be considered in applying this test are: Whether the claims of all members of the class share a common question of law and fact, such as the existence of a common fund from which relief can be given (Kimbrough v. Parker, 344 Ill. App. 483, 486, 101 N.E.2d 617; Flanagan v. City of Chicago, 311 Ill. App. 135, 160, 35 N.E.2d 545); whether the causes of action of the members of the class arise from the same transaction (Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 154, 39 N.E.2d 995; Material Service Corp. v. McKibbin, 380 Ill. 226, 236, 43 N.E.2d 939); whether one party can adequately represent the rights and interests of all other members of the purported class (Newberry Library v. Board of Education, 387 Ill. 85, 90, 55 N.E.2d 147); whether the number of possible class members renders separate litigation impossible or impractical (South East Nat. Bank of Chicago v. Board of Education, 298 Ill. A
Thus, the defendant argues, one trial would, in effect, become thousands of trials, a judicial and administrative burden beyond the power of any judge to bear. This same argument has been accepted in some cases ( Newberry Library v. Board of Education of City of Chicago, 387 Ill. 85, 55 N.E.2d 147; Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995; Rice v. Snarlin, Inc., 131 Ill. App.2d 434, 266 N.E.2d 183; Kuehn v. Bismarck Hotel Co., 52 Ill. App.2d 321, 202 N.E.2d 52; Schick-Johnson Co. v. Malan Construction Corp., 49 Ill. App.2d 277, 200 N.E.2d 76); and rejected in others, ( Fiorito v. Jones, 39 Ill.2d 531, 236 N.E.2d 698; Rosen v. Village of Downers Grove, 19 Ill.2d 448, 167 N.E.2d 230; Harrison Sheet Steel Co. v. Lyons, 15 Ill.2d 532, 155 N.E.2d 595; Smyth v. Kaspar American State Bank, 9 Ill.2d 27, 136 N.E.2d 796; Johnson v. Halpin, 413 Ill. 257, 108 N.E.2d 429; Moseid v. McDonough, 103 Ill. App.2d 23, 243 N.E.2d 394; Kruse v. Streamwood Utilities Corp., 34 Ill. App.2d 100, 180 N.E.2d 731; Cook v. Cohn, 25 Ill. App.2d 330, 166 N.E.2d 614; Kimbrough v. Parker, 344 Ill. App. 483, 101 N.E.2d 617). "As is pointed out by the courts and the law writers and commentators, the decisions on this subject are numerous and conflicting and each case must be decided on its own merits." Kruse v. Streamwood Utilities Corp., 34 Ill. App.2d at page 108.
Factors to be considered in applying this test are: whether the claims of all members of the class share a common question of law and fact, such as the existence of a common fund from which relief can be given; whether the causes of action of the members of the class arise from the same transaction; whether one party can adequately represent the rights and interests of all other members of the purported class; whether the number of possible class members renders separate litigation impossible or impractical; and whether there exists a purely equitable cause of action. [ Moseid v. McDonough (1968), 103 Ill. App.2d 23, 27-28.] As this mere listing of "relevant factors" suggests, Illinois case law provides little guidance as to the definitive requirements for maintaining a class action.
The trial court found that plaintiffs' complaint is predicated upon a series of essentially identical transactions by thousands of insureds which were founded upon and arose out of identical contract language in policy form 9536.9 prepared by State Farm. The fact that each separate contract was issued to numerous insureds after different contacts is irrelevant for purposes of the requirement. This fact is exemplified by the cases holding that a class action need not be predicated upon one single transaction but may arise out of a long series of transactions based upon similar acts or documents. Dee-El Garage, Inc. v. Korzen (1972), 53 Ill.2d 1, 289 N.E.2d 431; Perlman v. First National Bank (1973), 15 Ill. App.3d 784, 305 N.E.2d 236, appeal dismissed (1975), 60 Ill.2d 529, 331 N.E.2d 65; Moseid v. McDonough (1968), 103 Ill. App.2d 23, 243 N.E.2d 394. State Farm's argument that the negotiations which may have occurred in collecting subrogation for medical payments involved separate and dissimilar transactions is without merit.
( Peoples Store of Roseland v. McKibbin (1942), 379 Ill. 148, 39 N.E.2d 995; Smyth v. Kasper American State Bank.) Our examination of the plethora of decisions cited to us in this case, especially those which attempt to flesh out the "community of interest" requirement by enumerating many factors to be considered in determining whether such a community of interest exists ( e.g., Moseid v. McDonough (1968), 103 Ill. App.2d 23, 27-28, 243 N.E.2d 394), leads us to agree with the author of a law review comment that "Illinois case law provides little guidance as to the definitive requirements for maintaining a class action." (Emphasis added.)
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; Hagerty v. General Motors Corp. (1974), 59 Ill.2d 52, 319 N.E.2d 5; Reardon v. Ford Motor Co.; Highsmith v. Allstate Insurance Co. (1974), 17 Ill. App.3d 615, 308 N.E.2d 204. Several other cases have established that proof of separate transactions between the members of the class and the defendant does not automatically bar a class action. ( Moseid v. McDonough (1968), 103 Ill. App.2d 23, 243 N.E.2d 394; Brooks v. Midas-International Corp. (1977), 47 Ill. App.3d 266, 361 N.E.2d 815; Cohon v. Oscar L. Paris Co. (1958), 17 Ill. App.2d 21, 149 N.E.2d 472; Fiorito v. Jones (1968), 39 Ill.2d 531, 236 N.E.2d 698.) The courts have long recognized the confusion in this area ( Kruse v. Streamwood Utilities Corp. (1962), 34 Ill. App.2d 100, 108, 180 N.E.2d 731, 735), and in answer to it, the legislature has adopted the approach that was articulated in Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill.2d 532, 155 N.E.2d 595.
This is a question of fact which is to be resolved in the trial court proceedings. • 6 Defendant also urges consideration of whether a common fund exists as a factor in determining whether there is a common question of law and fact. While the existence of a common fund from which class members may recover may be another factor to be considered ( Kimbrough v. Parker (1951), 344 Ill. App. 483, 176 N.E.2d 899; Moseid v. McDonough (1968), 103 Ill. App.2d 23, 243 N.E.2d 394), we find that this creates no infirmity in the present case. In Perlman v. First National Bank of Chicago (1973), 15 Ill. App.3d 784, 800, 305 N.E.2d 236, 249, it was held that a sequestered sum of money is not required in order to establish a common fund. The court reasoned that there was "no basis in law or logic for permitting a class action against an individual who has sequestered all money wrongfully acquired but denying one against an individual who has commingled it with his other assets."
"* * * whether the claims of all members of the class share a common question of law and fact, such as the existence of a common fund from which relief can be given [citations]; whether the causes of action of the members of the class arise from the same transaction [citations]; whether one party can adequately represent the rights and interests of all other members of the purported class [citations]; whether the number of possible class members renders separate litigation impossible or impractical [citations]; and whether there exists a purely equitable cause of action [citations]." Moseid v. McDonough (1968), 103 Ill. App.2d 23, 27-28. Where there exists a common, dominant and pervasive issue, the propriety of a class action is not defeated by the existence of subsidiary individual issues ( Rosen v. Village of Downers Grove (1960), 19 Ill.2d 448, 456; see Perlman v. First National Bank (1973), 15 Ill. App.3d 784, 803, appeal dismissed for want of concurrence of four justices, 60 Ill.2d 529 (1975)), and "where it appears the common issue is dominant and pervasive, something more than the assertion of hypothetical variations of a minor character should be required to bar the action."