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Walter Peckat Co. v. Regional Transp. Auth.





Appeal from the Circuit Court of Cook County, the Hon. Donald J. O'Brien, Judge, presiding.


Rehearing denied July 14, 1980.

Walter Peckat Co., plaintiff, filed a class action suit in the circuit court of Cook County against the Regional Transportation Authority (RTA), James B. Zagel, Director of Revenue of the State of Illinois, Jerome Consentino, Treasurer of the State of Illinois, and William J. Scott, Attorney General of the State of Illinois. The suit requested that the circuit court declare a tax imposed by the RTA unconstitutional and also requested further equitable relief. The circuit court dismissed both the original complaint and an amended complaint. We allowed direct appeal to this court pursuant to our Rule 302(b) (73 Ill.2d R. 302(b)). We affirm.

This litigation questions the constitutionality of differential tax rates imposed on retailers by the RTA pursuant to section 4.03 of the Regional Transportation Authority Act (Public Act 81-2d S.S. 3) (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 704.03(e)), which provides in part:

"(e) The Board may impose a Regional Transportation Authority Retailers' Occupation Tax upon all persons engaged in the business of selling tangible personal property at retail in the metropolitan region at a rate not to exceed 1% of the gross receipts from such sales made in the course of such business within the County of Cook and 1/4% of the gross receipts from such sales made in the course of such business within the Counties of DuPage, Kane, Lake, McHenry and Will."

The RTA subsequently passed Regional Transportation Authority Ordinance No. 79-201, September 24, 1979 (effective Nov. 1, 1979), which imposed the tax at the maximum rates allowed.

Plaintiff contends that the difference between the rate of tax imposed within Cook County and the rate imposed within the other five counties under the RTA's jurisdiction violates section 2 of article IX of the Illinois Constitution of 1970. That section provides:

"In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable."

Plaintiff does not argue that the classification involved in this case is unreasonable or that the rates imposed are not uniform within the classes. Rather, it contends that the section implicitly requires that the tax rates within the area under the jurisdiction of a taxing authority be uniform. It contends that, absent express constitutional authorization like that in sections 6(l)(2) and 7(6) of article VII of the Illinois Constitution of 1970 for units of local government, the imposition of differential tax rates based on different classes within the jurisdiction of a local taxing authority is unconstitutional without regard to the reasonableness of the classification.

Initially we note the apprehensions of the drafters of the 1970 Constitution that courts> might find unintended limitations upon the taxing powers, and their declaration that any restrictions were expressly stated. (Polich v. Chicago School Finance Authority (1980), 79 Ill.2d 188, 196-98; Hoffman v. Clark (1977), 69 Ill.2d 402, 422-23.) The plaintiff's burden in establishing such a restriction therefore is particularly heavy in the absence of express language so providing. It attempts to meet that burden in this instance by arguing that under the Illinois Constitution of 1870 no taxing authority could impose a tax that was not uniform within the area of its authority. It furthermore argues the drafters of the 1970 Constitution carried this restriction forward with only an exception for units of local government. (See Ill. Const. 1970, art. VII, secs. 6(l)(2), 7(6).) Since the RTA is a special rather than general unit of local government, plaintiff concludes that the instant tax is unconstitutional.

Plaintiff presents a complex argument to support its conclusion, but we need not be concerned with all the facets of its analysis. Regardless of whether its proposed restriction applied to property taxes, we are not convinced that it applied to nonproperty taxes. Although the 1870 Constitution required municipalities to tax property uniformly within their jurisdictions (see Ill. Const. 1870, art. IX, secs. 9, 10), no such limitation was applied to non-property taxes. (See G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 416, 420-32 (1969).) The only limitation on occupation, privilege and franchise taxes found in the 1870 Constitution is that they be "uniform as to the class" upon which they operate. Ill. Const. 1870, art. IX, sec. 1.

Plaintiff nevertheless argues that two decisions of this court, Banta v. City of Chicago (1898), 172 Ill. 204, and Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill.2d 378, indicate that a taxing authority must impose a non-property tax uniformly throughout the area of its jurisdiction. At issue in Banta was the validity of a tax on brokers imposed by the city of Chicago. The tax involved imposed a flat licensing fee on all brokers doing business in the city without regard to the volume of business conducted by the broker. The tax did not classify brokers into different groups, and no issue concerning the validity of such a classification was considered by the court. The issues raised by the appellant relevant to our analysis here are, first, whether the legislature could authorize the city to impose a license fee, and, second, whether such a fee must vary according to the volume of the broker's business. In answering the first of these questions the court stated:

"Section 1 of article 9 of the constitution of 1870 expressly authorizes the General Assembly to tax various occupations, including brokers, the only restriction being the requirement that such tax should be uniform as to the class upon which it operates. The General Assembly delegated to the cities in the State the power to impose such taxation within their respective jurisdictions. Rev. St. c. 24, par. 62, cl. 91. It was competent for the General Assembly to delegate the exercise of such power within the limits of cities and villages to such municipalities. City of East St. Louis v. Wehrung, 46 Ill. 392; Howland v. City of Chicago, 108 Ill. 496." (Banta v. City of Chicago (1898), 172 Ill. 204, 219.)

Plaintiff would interpret this language to mean that a non-property tax must be uniform throughout the area of jurisdiction of the taxing authority. We believe, however, that in the context of that case the language merely means that the General Assembly could delegate to a city the authority to impose a license fee within that city, not outside it. Any such fee, of course, had to be uniform as to the class on which it operated as required by section 1 of article IX of the Constitution of 1870, but there is no indication in the opinion that the tax must be ...

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