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Garcia v. Tully

OPINION FILED MAY 26, 1978.

PATRICIA L. GARCIA ET AL., APPELLANTS,

v.

THOMAS TULLY, COUNTY ASSESSOR, ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County, the Hon. Nathan M. Cohen, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Patricia L. Garcia, Robert Paddock, Philip Bash, The Paddock Corporation, Shepherd Publications, Inc., and Myers Publishing Co., appealed from the order of the circuit court of Cook County dissolving a preliminary injunction under which defendants, Thomas Tully, county assessor, and the president and members of the board of commissioners, and Edward J. Mulville, county purchasing agent of Cook County, and Area Publications Corporation, hereafter Area, were enjoined from contracting to publish certain personal property and real estate tax assessment lists in the Suburban Trib. In its order dissolving the preliminary injunction the circuit court found that there was no just reason to delay enforcement or appeal. (Supreme Court Rule 304(a), 58 Ill.2d R. 304(a).) Although the order does not so state, citing to the memorandum opinion filed by the circuit court prior to the entry of its order, plaintiffs assert that the effect of the order dissolving the injunction was to hold unconstitutional section 104 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 585) and that under Rule 302(a) (58 Ill.2d R. 302(a)) the appeal lay directly to this court.

Section 104 of the Revenue Act of 1939 provides that in counties containing 2 million or more inhabitants the county assessor shall publish the assessments of personal property, the quadrennial assessments of real property and, in years other than years of a quadrennial assessment, a full and complete list of the assessments in which changes are made. It further provides:

"In such counties, or assessment districts therein, the publication of the assessments of personal property and real estate or the changes therein required in this Act to be published, shall be printed in some newspaper or newspapers of general circulation published in the county except that, in every township or incorporated town which has superseded a civil township, in which there is published one or more newspapers of general circulation, the assessment list of such townships shall be published in one of such newspapers and in cities of more than 2,000,000 population the assessment list of such city shall be printed in one or more newspapers of general circulation published in the township assessment district within such city or, in the event a newspaper of general circulation is not published within such township assessment district, in one or more newspapers of general circulation published within such city." Ill. Rev. Stat. 1975, ch. 120, par. 585.

It appears from the pleadings and an "agreed statement of uncontested facts" that each of the corporate plaintiffs is the publisher of a newspaper published in either Barrington, Palatine or Hanover Townships in Cook County; that each of the individual plaintiffs is a resident of and taxpayer in one of these townships and is also either an officer or employee of one of the corporate plaintiffs; that Life Printing and Publishing Co., Inc., not a party to this cause, publishes The Berwyn Life, a newspaper with an average press run of 13,500 copies, all of which are circulated in Berwyn Township; that Barrington Press, Inc., also not a party to this cause, publishes the Barrington Courier Review, circulated generally in Barrington Township; that defendant Area is a wholly owned subsidiary of the Chicago Tribune Company and is the owner and publisher of the Suburban Trib, which is published under nine names (e.g., Suburban Trib-Northwest Cook County, Suburban Trib-West Cook County, etc.); that approximately 343,000 copies of the Suburban Trib are circulated with the Chicago Tribune in Lake, Cook, Du Page and portions of Kane and Will Counties; that the Suburban Trib-Northwest Cook County is circulated three times each week with the Chicago Tribune in Barrington, Hanover and Palatine Townships and that approximately 53,000 copies of each issue are so circulated; that the Suburban Trib-West Cook County is published three times each week and approximately 32,000 copies of each issue are circulated in Berwyn Township, also with the Chicago Tribune; that there are approximately 30 annual subscriptions to the Suburban Trib and these subscribers receive their copies by mail; that the Suburban Trib is printed in Hinsdale or Des Plaines and copies are distributed to newspaper dealers who place copies within the Chicago Tribune to be delivered to homes during the morning hours of the day of publication; that copies of all editions of the Suburban Trib can be purchased by the public after 9 a.m. on the date of issue and thereafter, at Area's office in Hinsdale for 10 cents per copy; that except within a copy of the Chicago Tribune no copies of the Suburban Trib are delivered to any person residing in Hanover, Berwyn, Barrington or Palatine Townships; that the Finance Committee of the board of commissioners recommended to the board that the 1976 personal property tax assessment lists for the townships of Barrington, Berwyn, Hanover and Palatine, the changes made in connection with the 1976 real estate assessment lists in the nonquadrennial township of Hanover, and the 1976 real estate quadrennial assessment list for the township of Barrington be published in the Suburban Trib, upon acceptance of the bid of the defendant Area.

Prior to consideration of the substantive issues briefed and argued by the parties we consider first defendant Area's contention that this court is without jurisdiction to hear this appeal and that it should be dismissed. Defendants argue that because the appeal is not taken from a "final judgment" of the circuit court it may not, under Rule 302(a), be taken directly to this court. Article VI, section 4, of the Constitution of 1970 provides for a direct appeal when a death sentence has been imposed and that "The Supreme Court shall provide by rule for direct appeal in other cases." This court has jurisdiction to permit a direct appeal from other than "final judgments." Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87.

The order dissolving the preliminary injunction was an interlocutory order appealable as a matter of right (Supreme Court Rule 307, 58 Ill.2d R. 307), and upon motion filed pursuant to Rule 302(b) (58 Ill.2d R. 302(b)) the appeal could be taken directly to this court. What effect, if any, the addition of the finding, apparently in an attempt to comply with Rule 304(a), that there was no just reason for delaying enforcement or appeal had on the order entered by the circuit court we need not and do not decide. Although the procedural route followed is not clearly delineated, it appears from the opinion and order of the circuit court that the order dissolving the injunction rests upon the finding that section 104 of the Revenue Act of 1939 is unconstitutional. Under these circumstances, direct appeal under Rule 302(a) is appropriate, and defendants' motion to dismiss the appeal is denied.

Plaintiffs contend that in holding section 104 of the Revenue Act unconstitutional the circuit court erred; that the publication and printing of tax-assessment notices is a proper subject of regulation by the State; and that the Suburban Trib is not a newspaper qualified either to publish tax notices in Illinois or in any of the four townships here involved. Defendant Area contends that section 104, as applied to its newspapers, is unconstitutional; that the Suburban Trib is in fact nine separate newspapers, each of which is a newspaper of general circulation within the meaning of the statute, and that two of the Suburban Tribs, the West County and Northwest County editions, are, within the meaning of the statute, published in these townships. The county defendants have appeared but have not filed a brief or taken a position on the merits of the appeal. They have filed a statement to the effect that if the order of the circuit court is affirmed the county will continue to accept bids from Area for the printing of tax-assessment lists. They ask, however, that in the event this court reverses the order of the circuit court it declare "that the validity of previously published tax assessment lists is in no way impaired, and that the taxes connected to those lists are legal."

Illinois Press Association, amicus curiae, arguing that "the well established statutory legal notice system is fair and reasonable and should not be destroyed" and that the section under attack is constitutional, urges reversal of the order.

For the obvious reason that unless section 104 of the Revenue Act of 1939 is constitutional the other issues are no longer material, we consider first the question of its validity. Defendant Area contends that the statute is unconstitutional on two grounds: first, that the assessment lists are speech protected by the first amendment to the United States Constitution; and second, that it must be held invalid for the reason that "in its proposed application here it does not serve a logically compelling State interest." It is the position of plaintiffs that the publication of tax-assessment notices is not speech protected by the first amendment and, assuming, arguendo, that such notices are a form of commercial speech, dissemination of such notices may be regulated without violating the first amendment.

Starting from the premise that a newspaper's decision to accept or reject an item of paid advertising is a decision protected by the first amendment, Area argues that "any intrusion by the court or the legislature into that process bears the strongest presumption against its validity the law can recognize." We have examined the authority upon which this argument is based (Miami Herald Publishing Co. v. Tornillo (1974), 418 U.S. 241, 41 L.Ed.2d 730, 94 S.Ct. 2831) and are unable to perceive any resemblance between the issue involved there and that presented here. Our review of the authorities cited by Area (Bigelow v. Virginia (1974), 421 U.S. 809, 44 L.Ed.2d 600, 95 S.Ct. 2222; Pittsburgh Press Co. v. Pittsburgh Com. on Human Relations (1973), 413 U.S. 376, 37 L.Ed.2d 669, 93 S.Ct. 2553; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817) fails to reveal any support for its argument that the provisions of section 104 in any manner impinge upon its first amendment rights. The Supreme Court has rejected the contentions that applying the Fair Labor Standards Act to a newspaper-publishing business abridged the freedom of press guaranteed by the first amendment (Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186, 192-93, 90 L.Ed. 614, 620, 66 S.Ct. 494, 497-98) and that the first amendment precluded application of the Sherman Act to a newsgathering organization (Citizen Publishing Co. v. United States (1969), 394 U.S. 131, 22 L.Ed.2d 148, 89 S.Ct. 927). It is also established that a newspaper may be subjected to nondiscriminatory forms of general taxation. (Grosjean v. American Press Co. (1936), 297 U.S. 233, 250, 80 L.Ed. 660, 668, 56 S.Ct. 444, 449; Murdock v. Pennsylvania (1943), 319 U.S. 105, 112, 87 L.Ed. 1292, 1298, 63 S.Ct. 870, 874.) Section 104 in no manner limits Area's right to publish the tax lists in question — it prescribes certain qualifications which must be met in order that a newspaper, for compensation, be eligible to publish them. We have considered Area's argument that its right to publish the tax lists is "meaningful" only when coupled with the corresponding right to be compensated therefor, and we do not agree. The guarantees contained in the first amendment prohibit the abridgement of freedom of the press which we do not construe to include the right, absent the statutorily prescribed qualifications, to publish the tax notices in question. Assuming, arguendo, that there is here involved a right guaranteed by the first amendment, in our opinion the provisions of section 104 fall within the permissible bounds of time, place and manner restrictions on commercial speech (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817) and are not violative of the first amendment.

Defendant Area contends "that section 585

in its proposed application does not serve a logically compelling State interest" and "that any restriction on First Amendment rights must be narrowly drawn and no greater than necessary to achieve a legitimate governmental interest." The argument presumes that section 104 purports to impose a restriction on a first amendment right, thus creating a "suspect classification" and invoking the rule that in order to sustain its validity the State bears the burden of showing that the classification was related to some compelling State purpose. We do not agree that the statute imposes any restriction on a first amendment right. The question whether section 104 is violative of the equal protection clause is to be decided on the basis of whether the classification is rationally related to a legitimate governmental objective, and the burden is on Area to prove that it is arbitrary and invalid. Whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. (Schreiber v. County of Cook (1944), 388 Ill. 297; Stewart v. Brady (1921), 300 Ill. 425.) If there is a reasonable ...


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