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Oak Park Fed. S. & L. v. Vil. of Oak Park

OPINION FILED JANUARY 26, 1973.

OAK PARK FEDERAL SAVINGS AND LOAN ASSOCIATION ET AL., APPELLANTS,

v.

THE VILLAGE OF OAK PARK, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 15, 1973.

Plaintiffs, Oak Park Federal Savings and Loan Association and Oak Park Trust and Savings Bank, instituted a declaratory judgment action in the circuit court of Cook County against the defendant, the Village of Oak Park. The complaint prayed that the court declare invalid certain ordinances adopted by the defendant pursuant to home-rule powers granted by section 6 of article VII of the constitution of 1970. The defendant answered and filed a motion for judgment on the pleadings which the court allowed. The plaintiffs appealed to the appellate court and we granted defendant's motion to transfer the appeal to this court pursuant to our Rule 302(b). (50 Ill.2d R. 302(b).) Subsection (l) of section 6 of article VII of the constitution of 1970 provides:

"(l) The General Assembly may not deny or limit the power of home rule units (1) to make local improvements by special assessment and to exercise this power jointly with other counties and municipalities, and other classes of units of local government having that power on the effective date of this Constitution unless that power is subsequently denied by law to any such other units of local government or (2) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services."

Acting pursuant to the second provision of subsection (l) the defendant enacted a series of five ordinances. The first of these ordinances was adopted February 7, 1972. It defined the procedures for establishing areas for the providing of special services and provided that the president and board of trustees of the Village of Oak Park shall be the governing body of the special service area. It authorized the levying of taxes by the village board on the property in the special service area and the issuance of bonds to be retired by taxes levied against the property included in the area. The second ordinance, adopted April 3, 1972, following the procedure set forth in the first ordinance, initiated the proceedings for the creation of Special Service Area No. 1; provided for a hearing and directed the giving of notice of the hearing. The third ordinance found that the procedures prescribed by the first ordinance had been complied with and declared Village of Oak Park Special Service Area No. 1 established. The ordinance declared that the services to be provided by the service area included the creation of a shopping mall within the special service area, including excavation and paving, infrared heating, if practical, graphics, landscaping, furniture, lighting and acquisition of property for parking purposes. The fourth ordinance found that it was to the best interest of the Oak Park Special Service Area No. 1 that off-street parking be furnished for use in connection with the shopping mall and that in order to furnish free off-street parking and other special municipal services it is necessary that a real-estate tax be levied against the property of the special service area for the purpose of retiring outstanding revenue bonds previously issued by the Village for the purpose of purchasing parking lots. The fifth ordinance provided for the issuance of bonds of the special service area in the amount of $1,550,000 to be retired by the levy of taxes on the property within the district. This money is to be used for the purpose of establishing the shopping mall. The third, fourth and fifth ordinances were adopted on May 1, 1972.

The plaintiffs contend that the defendant cannot, without enabling legislation adopted by the General Assembly, create a special service area or impose taxes or issue bonds to provide special services under section 6(l) of article VII. We agree with this contention. The somewhat unusual wording of section 6(l)(2) which requires clarification is as follows:

"(l) The General Assembly may not deny or limit the power of home rule units * * * (2) to levy or impose additional taxes upon areas within their boundaries in the manner provided by law for the provision of special services to those areas and for the payment of debt incurred in order to provide those special services." (Emphasis added.)

It is the italicized language quoted above which, on a casual reading, may appear to be in conflict and therefore requires our consideration. In the matter of constitutional construction, it is incumbent upon the court to give meaning to every section and clause of the instrument. If different parts of the constitution appear to be in conflict, the court must harmonize them, if practicable, and must favor a construction which will render every word operative rather than one which will make some words idle and nugatory. (1 Cooley's Constitutional Limitations 128 (8th ed. 1927); 2 J. Sutherland, Statutes and Statutory Construction, sec. 4705 (3d ed. 1943).) One clause will not be allowed to defeat another if by any reasonable construction the two can be made to stand together. 1 Cooley's Constitutional Limitations 129 (8th ed. 1927).

Although the first part of section 6(l) appears to command that the General Assembly not interfere with the home-rule power specified in this subsection, paragraph (2) of subsection (l) seems to require that the power be exercised only pursuant to a law adopted by the General Assembly. If we hold that the provisions of section 6(l)(2) are self-executing and that a home-rule unit may enact ordinances creating special service areas and imposing taxes to provide special services without enabling legislation, then no effect is given to the words "in the manner provided by law" and such a construction will render these words meaningless.

However, by adopting a construction which requires the machinery and procedures for implementing this function to be established by law, while prohibiting the General Assembly from denying or limiting the exercise of the power, the two apparently conflicting provisions are harmonized. In keeping with the accepted principles of constitutional construction, this is the interpretation which must be given to this language.

The defendant contends that since the ordinance provides that the assessment of properties and the manner of levying taxes in the special service area shall be in the manner provided by the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 482 et seq.), the requirements of section 6(l)(2) have been satisfied. We are convinced that the language "in the manner provided by law" in this subsection of the constitution does not refer to the Revenue Act of 1939 but envisages specific enabling legislation directed to this section of the constitution. This method of taxation during the course of the constitutional debates was referred to as "differential" taxation. It was a new concept of taxation in Illinois. It was a departure from the requirement of uniformity of the 1870 constitution (Const. of 1870, art. IX, sec. 10), and its purpose was to authorize local-government units to tax different areas within their boundaries at different rates as the services furnished to those areas required. Section 10 of article IX of the 1870 constitution did not permit such differential taxation but required that the property within the municipal corporation be taxed uniformly. The Revenue Act of 1939, pursuant to this constitutional mandate, required that the tax rate for each taxing district be ascertained and extended against all the property of the district. Ill. Rev. Stat. 1971, ch. 120, par. 643, 645.

The ordinances in question in this case are the ordinances of the Village of Oak Park, and under the Revenue Act of 1939, without further enabling legislation, the taxes levied by these ordinances are required to be extended against all of the property of the taxing district, which in this instance is the Village of Oak Park. The provisions of the Revenue Act of 1939 do not attempt to establish the statutory framework within which section 6(l)(2) can be implemented.

In the absence of enabling legislation, we hold that the five ordinances of the Village of Oak Park which attempt to exercise the home-rule powers of section 6(l)(2) of ...


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