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Catholic Bishop of Chicago v. Vil. of Justice

OPINION FILED MAY 9, 1980.

THE CATHOLIC BISHOP OF CHICAGO ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF JUSTICE, DEFENDANT-APPELLEE.



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

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought an action seeking a declaratory judgment and an injunction enjoining defendant village of Justice from enforcing a village ordinance. On cross-motions for summary judgment, the trial court held that the fee provisions and territorial restriction provisions of the ordinance were invalid. The court enjoined enforcement of those provisions and left the balance of the ordinance standing. On appeal, plaintiffs contend that the ordinance is void in its entirety since it is not severable and it bears no reasonable relationship to the promotion of public welfare and that the trial court erred in denying its motion to supplement and reopen the record. We reverse the judgment of the trial court but affirm the denial of the motion. The relevant facts follow.

Prior to October of 1969, the village of Justice had enacted an ordinance that required cemeteries to pay an annual license fee of $200. On October 2, 1969, the village enacted Ordinance 69-24, which required funeral directors to pay a $10 permit fee to bury and disinter dead bodies in the village. In 1972 the Village Code was amended to require all cemeteries to obtain an annual license fee of $1500 for cemeteries under 20 acres and $2500 for cemeteries over 20 acres. None of the above-mentioned ordinances were ever enforced.

In February of 1976, the village enacted Ordinance 76-3, *fn1 which is the subject of this appeal. Upon the attempted enforcement of Ordinance 76-3, plaintiffs, various cemeteries and funeral directors located within the village of Justice, filed a first amended complaint on December 10, 1976, seeking to enjoin enforcement of the ordinance and a declaratory judgment alleging that the ordinance was: (1) an unlawful tax on tax-exempt property in violation of article 9, section 6, and article 7, section 7 of the Illinois Constitution of 1970 and sections 19 and 19.3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, pars. 500, 500.3); (2) arbitrary and capricious and not reasonably related to any valid police power; (3) void for vagueness and violated due process because it lacked standards governing its administration; and (4) the provisions prohibiting the establishment or expansion of cemeteries constituted an unlawful taking of property without due process of law.

Thereafter, the parties stipulated, and the trial court ordered, that discovery depositions be taken and used as evidence, there being no other facts to be submitted. The depositions of various village officials were then taken and the evidence contained therein showed that the primary purpose for the enactment of Ordinance 76-3 was to obtain revenues from cemetery property located within the village. Specifically, trustee Travis Gravitt stated that the purpose of the ordinance was to require cemeteries to contribute money to the village in order to pay for general municipal services, i.e., police and fire protection. Trustee James Heard stated that the ordinance acted as a vehicle for providing the village with additional revenue which would be put into the general fund. In addition, several of the depositions contained evidence which showed that none of the village officials had any idea as to the costs of administering the ordinance. Mayor Rusch and trustee Charles Hesek admitted that the fees were arbitrary figures. The only reference made to administrative costs were the costs of forms to be used and the registrar's salary, which was to be either all or part of the $5 fee collected for grave inspections.

On cross-motions for summary judgment, the trial court held that the burial and grave inspection fees (sections 7-5-5 and 7-5-12) bore no reasonable relationship to the cost of administering the ordinance and were in violation of article 9, section 6, and article 7, section 7 of the Illinois Constitution of 1970 and sections 19 and 19.3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, pars. 500, 500.3). The court also held that the provisions dealing with future cemetery expansion (sections 7-5-7, 7-5-9, 7-5-14, 7-5-16) lacked any articulated standards related to public health, safety, and welfare, and were therefore invalid under the doctrine of City of Park Ridge v. American National Bank & Trust Co. (1954), 4 Ill.2d 144, 122 N.E.2d 265, which held absolute prohibitions of cemeteries invalid as violative of the due process clauses of the fourteenth amendment to the United States Constitution and article 1, section 2 of the Illinois Constitution of 1970. The grave inspection and record keeping provisions were upheld as valid exercises of the village's police power, pursuant to article 7, section 7 of the Illinois Constitution of 1970 and sections 11-20-5, 11-22-1, 11-49-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, pars. 11-20-5, 11-22-1, 11-49-1). Lastly, the court stated that the provisions of Ordinance 76-3 were severable and that the village has the right under the Constitution and statutes to regulate the circumstances and conditions of burials.

Following the court's final ruling, plaintiffs filed a motion to supplement and reopen the record for the purpose of adding evidence demonstrating past course of dealings between the village officials and plaintiff, Resurrection Cemetery. The motion was denied, however, based on the prior stipulation entered into by the parties. Plaintiffs now appeal that motion and that part of the court's judgment holding the ordinance severable and certain provisions valid.

OPINION

As a threshold matter, plaintiffs contend that Ordinance 76-3 is void in its entirety since the provisions declared invalid are not severable from the remainder of the ordinance. They argue, and correctly so, that the provisions are not independent of each other and therefore the village officials would not have adopted the ordinance without the provisions already determined to be invalid.

Plaintiffs find dispositive of this issue the case of City of Chicago Heights v. Public Service Co. (1951), 408 Ill. 604, 97 N.E.2d 807, which is the third and last in a series of cases involving the city's attempt to obtain revenue from various public utilities. In the first case, City of Chicago Heights v. Western Union Telegraph Co. (1950), 406 Ill. 428, 94 N.E.2d 306, the city sought to enforce a 1919 ordinance which contained a license fee scheme. The supreme court held that the ordinance was unconstitutional in that it contained no regulatory provisions and therefore amounted to a revenue measure, and that the fees imposed were excessive and unreasonable as a matter of law. In the second case, City of Chicago Heights v. Public Service Co. (1951), 408 Ill. 310, 97 N.E.2d 268, the supreme court found that the ordinance which the city sought to enforce was primarily a privilege tax based upon gross revenues of the taxpayer utility, and it too was struck down as unconstitutional.

Finally, in the Chicago Heights case relied upon by plaintiffs here, the city amended the 1919 ordinance involved in the original case by adding certain regulatory provisions to the fee structure. The ordinance also contained certain provisions granting the commissioner and city superintendent of streets unlimited discretionary authority to issue the licenses and permits. The supreme court held that the regulatory provisions were merely added in an effort to validate the fee structure, and therefore the court followed its decision in the original Chicago Heights case. Moreover, the court held that the provisions granting the commissioner and superintendent of streets discretionary authority to issue licenses and permits were void for failure to establish adequate tests and standards.

In addressing the issue of the severability of the provisions of the ordinance already found to be unconstitutional, the court stated:

"It is settled that where the sections of a statute or ordinance are independent of each other the invalid sections may be disregarded and the valid sections permitted to stand, but where a portion of a statute or ordinance is valid and a portion invalid, and the court cannot say that the legislative body would have passed the enactment with the invalid portion eliminated, the entire statute or ordinance must be held invalid. (People ex rel. City of Highland Park v. McKibbin, 380 Ill. 447; People ex rel. Yohnka v. Kennedy, 367 Ill. 236.) Where the different objects of an act are dependent upon each other or are so mutually connected with each other that it cannot be presumed that the legislature would have enacted the provisions designed to achieve one of the objects without the provisions for the other, the unconstitutionality of the latter renders the entire ...


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