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In Re Application of County Collector

OPINION FILED FEBRUARY 20, 1976.

IN RE APPLICATION OF COUNTY COLLECTOR. — MCHENRY COUNTY CONSERVATION DISTRICT, APPELLANT,

v.

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY ET AL., OBJECTORS-APPELLEES.)



APPEAL from the Circuit Court of McHenry County; the Hon. LEONARD J. BRODY, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is an appeal from the order of the circuit court of McHenry county sustaining the objections of the appellees to the taxes levied in 1971 by the McHenry County Conservation District (District). The District appeals.

On July 20, 1971, the Board of Trustees of the District adopted a tentative budget and appropriation ordinance for the fiscal year of July 1, 1971, through June 30, 1972. Copies of the appropriation ordinance were made available for public inspection between July 23 and August 23 and a public hearing was held thereon on August 23, 1971, on which date the Board of Trustees adopted a final appropriation ordinance. Notice of the availability of the ordinance and of the hearing was given in the Woodstock Daily Sentinel on July 23, 1971. Notice of the adoption of the final appropriation ordinance was given to the Woodstock Daily Sentinel to be published on August 27 and September 3, 1971. Because of the intervention of the Labor Day holiday weekend the second publication was published on September 7 instead of September 3, 1971. The pertinent statute, infra, provides that an appropriation ordinance shall be published "at least once a week for two weeks" and that an appropriation ordinance shall not take effect until ten days after it is "so published." On September 14, which was only seven instead of ten days following the second publication of the appropriation ordinance, the District adopted a levy ordinance based upon the figures of the August 23 appropriation ordinance.

The trial court sustained the appellees' objection to the taxes levied by the District based upon its conclusion that the levy was invalid because the appropriation ordinance upon which it was based had not gone into effect at the time of the adoption of the levy. The trial court found that the appropriation ordinance did not go into effect until ten days after its second publication (i.e., until ten days after September 7) and that the levy ordinance adopted on September 14 was premature and thus void because it was not based upon an appropriation ordinance which was in effect. The District contends that this conclusion is in error because, regardless of whether or not the statutory notice provisions were complied with in this situation, the appellees had sufficient notice of the appropriation ordinance. Second, the District argues that a proper interpretation of the relevant statutory notice provisions leads to the conclusion that the failure to allow a ten-day period to elapse between the last publication of notice of the appropriation ordinance and the adoption of the levy does not invalidate the levy.

Analysis of the situation involved herein requires an examination of sections 8 and 13 of the Conservation District Act (Ill. Rev. Stat. 1971, ch. 57 1/2, pars. 108, 113) and sections 3 and 4 of the Illinois Municipal Budget Law (Ill. Rev. Stat. 1971, ch. 85, pars. 803, 804). In pertinent part, section 8 of the Conservation District Act, under which Act the District herein was organized, provides:

"* * * All ordinances imposing any penalty or making any appropriations shall be published at least once a week for 2 weeks in at least one newspaper * * *. No such ordinance shall take effect until 10 days after it is so published or posted."

Section 13 of the Conservation District Act provides in pertinent part as follows:

"The board of each district shall on or before the second Tuesday in September of each year, adopt a combined annual budget and appropriation ordinance as provided in the Illinois Municipal Budget Law.

After the adoption of the appropriation ordinance and on or before the second Tuesday in September of each year, the board shall ascertain the total amount of the appropriations legally made which are to be provided for from tax levies for the current year. Then, by an ordinance specifying in detail the purposes for which such appropriations have been made and the amounts appropriated for such purposes, the board shall levy * * *."

Section 3 of the Illinois Municipal Budget Law provides in pertinent part as follows:

"The governing body of each municipality of this State, coming within the provisions of this Act, shall adopt a combined annual budget and appropriation ordinance * * *.

Such budget and appropriation ordinance shall be prepared in tentative form * * * and in such tentative form shall be made conveniently available to public inspection for at least thirty days prior to final action thereon. At least one public hearing shall be held as to such budget and appropriation ordinance prior to final action thereon, notice of which shall be given by publication in a newspaper published in such municipality, at least one week prior to the time of such hearing."

Finally, section 4 of the Illinois Municipal Budget Law provides as follows:

"The failure by any governing body of any municipality to adopt an annual budget and appropriation ordinance, or to comply in any respect with the provisions of this Act, shall not affect the validity of any tax levy of any ...


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