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Sommer v. Village of Glenview

OPINION FILED MARCH 28, 1980.

BERNARD I. SOMMER ET AL., APPELLANTS,

v.

THE VILLAGE OF GLENVIEW ET AL., APPELLEES.



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Bernard I. Sommer, Mary Jane Lee and Julia S. Sommer, filed a complaint for a declaratory judgment and a petition for a writ of mandamus in the circuit court of Cook County on March 23, 1979. The relief sought by the plaintiffs was, inter alia, a writ of mandamus commanding the defendants, the village of Glenview, the board of trustees, the village clerk and the village manager, to present a proposition to the voters of the village which, if passed, would lower the maximum property tax rate applicable to the next taxes to be extended. The plaintiffs also requested the court to enter a judgment declaring that section 162a of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 643a) created a duty on the part of the defendants to present the tax-rate proposition to the voters of the village. The plaintiffs and defendants filed motions for summary judgment. The circuit court, after a hearing, dismissed the plaintiffs' petition for a writ of mandamus, granted the defendants' motion for summary judgment, denied the plaintiffs' motion for summary judgment, and entered judgment for the defendants. The plaintiffs filed a notice of appeal directly to this court under Rule 302(a) (73 Ill.2d R. 302(a)). The defendants thereafter filed a motion with this court to dismiss the appeal or to transfer the cause to the appellate court. The plaintiffs filed a response asking the court to permit the appeal under Rule 302(a), or, in the alternative, as a matter in which the public interest requires prompt adjudication, pursuant to Rule 302(b) (73 Ill.2d R. 302(b)). We have taken the motion to dismiss under advisement with this appeal.

There are no disputed questions of fact. The village is a home rule unit under the terms of article VII, section 6, of the 1970 Constitution. On March 16, 1979, more than 30 days prior to the next general election in the village, petitions bearing the signatures of 1,349 duly qualified voters were filed with the village clerk. The petitions requested the village's governing board to present to the voters at the next general election to be held on April 17, 1979, the following question:

"Shall the maximum tax rate for the general corporate fund of the Village of Glenview, Illinois, be established at .4337 percent on the equalized assessed value instead of .5783 percent, the maximum rate otherwise applicable to the next taxes to be extended?"

At a meeting of the village board held March 19, 1979, the trustees voted not to place the referendum proposition on the ballot for the general election to be conducted on April 17, 1979.

The first question we consider is whether the appeal is properly brought under Rule 302(a). Rule 302(a) states:

"Rule 302. Direct Appeals to the Supreme Court

(a) Cases Directly Appealable. Appeals from final judgments of circuit courts> shall be taken directly to the Supreme Court (1) in cases in which a statute of the United States or of this State has been held invalid, * * *." (73 Ill.2d R. 302(a).)

The defendants assert that the circuit court, in holding section 162a to be inapplicable to home rule units of government, did not decide its constitutionality. We do not agree. At the hearing on the motions for summary judgment, the circuit court stated that the section "constitutes an impermissible limitation on the powers to tax delegated to the local Home Rule municipalities by the 1970 Constitution." The court's order repeated the conclusion that section 162a constituted "an impermissible limitation on the constitutional powers of the Village of Glenview to tax as delegated to home rule municipalities by the 1970 Constitution" and added, "said Village is not bound by said section." We think the foregoing signifies that the trial court held that section 162a, as applied to a home rule unit, is unconstitutional. In Garcia v. Tully (1978), 72 Ill.2d 1, 7, in an analogous setting, we said:

"[I]t 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." (72 Ill.2d 1, 7.)

By holding section 162a inapplicable to home rule units the circuit court necessarily based its decision on the ground that there is a conflict between that section and the powers granted to home rule units under the 1970 Constitution. The motion to dismiss the appeal is denied.

The next inquiry is whether section 162a of the Revenue Act of 1939, as applied to home rule units, is unconstitutional. Section 162a provides in pertinent part:

"(2) The question of establishing a tax rate limit either higher or lower than that otherwise applicable to the next taxes to be extended may be presented to the legal voters of any taxing district at any time by the corporate authorities of the taxing district on their own motion at any regular election or at any special election called for that purpose. The question of establishing a tax rate limit lower than that otherwise applicable shall be presented to the voters of any taxing district upon the receipt by such corporate authorities, not less than 30 days before the next regular election for officers of such taxing district of a petition signed by not fewer than 5% of the legal voters in such taxing district, which percentage shall be determined on the basis of the number of votes cast at the last general election preceding the filing of such petition or 1,000 legal voters in such taxing district whichever is less, specifying the tax rate to be submitted; and such proposition shall be submitted to the voters at the next regular election for officers for such taxing district; provided that if no such election is required to be held at intervals of not more than 2 years, such proposition shall be submitted as a special election to be called by the corporate authorities of such district, which election shall be set for a day not less than 90 days nor more than 120 days following the filing of such petition. In case no general election is held in such a taxing district, such petition shall be signed by not fewer than 5% of the registered voters in such district or 1000 such registered voters, whichever is less.

If a majority of all ballots cast on such proposition shall be in favor of the proposition, the tax rate limit so established shall become effective with the levy next following the election and it shall be the duty of the county clerk to reduce, if necessary, the amount of any taxes levied thererafter, in such a manner as to give effect to the rate limit so established unless and until the rate so established is changed as provided by law; provided that nothing in this Section shall be construed as precluding the extension of taxes at rates less than that authorized by such election. Provided, further, that the proposition to authorize either a higher or lower tax rate limitation than that otherwise applicable may, in the discretion of the corporate authorities, when acting on their own motion, or the petitioners requesting a vote on such proposition, be restricted in effect to the tax levy of a given year or series of years, the rate limitation thereafter to revert to that applicable at the time of the referendum. If more than one proposition shall be submitted for any one fund of any taxing district of any one election and majority of votes cast on any one or more of such propositions shall be in ...


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