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City of Evanston v. County of Cook

OPINION FILED NOVEMBER 30, 1972.

THE CITY OF EVANSTON ET AL., APPELLANTS,

v.

THE COUNTY OF COOK, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 26, 1973.

This is an appeal from an order of the circuit court of Cook County which granted defendant's motion for summary judgment in a declaratory judgment action. This court allowed a motion to transfer the appeal from the appellate court to this court pursuant to Rule 302(b). 50 Ill.2d. R. 302(b).

Plaintiffs are municipalities located in Cook County and each is a home-rule unit under section 6(a) of article VII of the constitution of 1970. Defendant, County of Cook, is also a home-rule unit under this section of the constitution. The defendant county adopted an ordinance effective January 1, 1972, imposing a tax, to be paid by the purchasers, upon the retail sales of new motor vehicles in Cook County. The tax is imposed at a fixed amount per vehicle pursuant to a schedule for various classes of vehicles. Thereafter, each of the plaintiffs adopted an ordinance imposing a similar tax in the same amounts. Section 6(c) of article VII of the constitution of 1970 provides: "If a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction." It is the contention of the plaintiffs that the ordinance of the County of Cook conflicts with the ordinances of the municipalities and therefore the municipal ordinances prevail to the exclusion of the county ordinance within the corporate limits of the plaintiffs. The trial court held that the County of Cook ordinance is not in conflict with the substantially identical ordinances of the plaintiff municipalities within the meaning of section 6(c), granted the County of Cook's motion for summary judgment and denied the plaintiffs' motion for summary judgment. The plaintiffs have appealed from this order.

The grant of home-rule power is found in the following language of section 6(a) of article VII: "* * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

The limitations on the home-rule power to tax are found in section 6(e): "A home rule unit shall have only the power that the General Assembly may provide by law * * * (2) to license for revenue or impose taxes upon or measured by income or earnings or upon occupations", and in section 6(g): "The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax * * *."

It is undisputed that both the plaintiffs and the defendant have the authority under the constitution to impose the tax in question and that this authority has not been denied or limited by the General Assembly under the provisions of section 6(g). The sole question before this court is whether a home-rule county tax may be imposed upon the sales of motor vehicles within the corporate limits of a municipality when that municipality has adopted an ordinance imposing a substantially identical tax.

Plaintiffs argue that the imposition of the same tax by both the municipalities and the county constitutes double taxation. They contend that this court has consistently adhered to a policy opposing double taxation, citing language of this court to the effect that double taxation will never be presumed. (People ex rel. Lindheimer v. Schweitzer, 369 Ill. 355; New York Central R.R. Co. v. Stevenson, 277 Ill. 474.) Therefore, to avoid the evils of double taxation, plaintiffs contend that this court should hold that the municipal taxing ordinances prevail to the exclusion of the county ordinance. Plaintiffs do not urge that the county tax is constitutionally invalid because of double taxation, but only that a preference for the municipalities' tax should be established for this reason.

This court has on many occasions approved levies on property by different taxing districts for similar purposes. People ex rel. Hanrahan v. Caliendo, 50 Ill.2d 72, 84; Kucharski v. White, 42 Ill.2d 335, 337; People ex rel. Witte v. Franklin, 352 Ill. 528, 531; Board of Highway Comrs. v. City of Bloomington, 253 Ill. 164, 168; People ex rel. Darnell v. Woodward, 285 Ill. 165, 169, 170.

Plaintiffs however attempt to distinguish these holdings by pointing out that they involved dual taxation of property and contend that the power to tax conferred by section 6(a) applies only to nonproperty taxation. We do not agree with this distinction. Section 6(a) is a broad grant of the power "to tax." This power is limited by the provisions of section 6(e) on the power to license for revenue or impose taxes upon or measured by income or earnings or upon occupations and by the authority of the General Assembly under section 6(g) to limit the power to tax by a three-fifths vote. Section 6(m) provides that the powers of the home-rule unit shall be liberally construed. For these reasons the broad grant of the power "to tax" in section 6(a) cannot be said to grant only the power to impose nonproperty taxes.

This conclusion finds support in the Report of the Committee on Local Government, Illinois Constitutional Convention 1970. (7 Record of Proceedings, Sixth Illinois Constitutional Convention (December 8, 1969 — September 3, 1970) 1591, 1656-1657 [hereinafter cited as Proceedings].) The committee report in giving examples of the powers conferred on home-rule units states that the power to levy a property tax falls within the home-rule powers granted and can only be limited by a statute passed by a three-fifths vote of each house of the General Assembly. The power of a home-rule unit to tax is not found in statutory authorization but in the grant of that power found in section 6(a) of article VII and extends to property as well as nonproperty taxation, except as limited by the provisions of article VII. (See S. Bloom, Inc. v. Korshak, 52 Ill.2d 56, 60.) Plaintiffs' attempted distinction between property and nonproperty taxes is therefore not valid.

The previous decisions of this court sustaining dual taxation of property by different taxing districts for similar purposes demonstrate that the dual taxation involved in this case is not double taxation to which this court has expressed opposition in Schweitzer and Stevenson. It is not, therefore, necessary to construe the county tax as being inoperative within the municipalities for the purpose of avoiding the evils of double taxation.

Plaintiffs rely upon the statements of delegates in the debates of the constitutional convention as indicating the intent of section 6(c) to prohibit a county from exercising its home-rule powers within a municipality when that municipality has adopted an ordinance covering the same field. We do not find these statements in the debates helpful because they concerned zoning and certain regulatory and licensing ordinances of home-rule units. In such ordinances there are clear opportunities for contradictions and conflicts between the ordinances of the municipalities and ordinances of the county. The discussions did not deal with ordinances involving taxation.

We agree with plaintiffs' contention that it was the intention of the constitutional convention to establish the preference for municipal authority over home-rule county authority in certain situations. We do not agree, however, that this preference establishes a principle of preemption so as to render a home-rule county taxing ordinance inoperative within a municipality whenever that municipality decides to legislate on the same subject. The Report of the Committee on Local Government of the 1970 constitutional convention recognized the problem of legislating in the same field by both a municipality and a home-rule county not as a question or preemption of authority but as a matter of resolving conflicts in ordinances. (7 Proceedings 1591, 1646-1650.) In defining the problem to be resolved by section 6(c) the committee proposal states: "* * * there may be differences or actual conflicts and inconsistencies between municipal legislation and county legislation. Some provision must be made to resolve these potential disagreements and conflicts" (p. 1647). Thus, because of the more dominant role of municipalities as local government units, the problem was resolved in favor of municipal ordinances. This preference for municipalities does not establish a doctrine of preemption rendering inoperative a ...


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