APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN COVEY, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
In November of 1976, the Peoria County Board adopted a resolution, which provides, in pertinent part:
"NOW THEREFORE, BE IT RESOLVED, that the County Board of the County of Peoria hereby authorizes the County Collector of Peoria County to print the following, or comparable, instructions on the real property tax bills for collection of taxes in 1977 and following years:
`Taxpayers paying by mail either or both installments of real property taxes shall address said payment(s) to: County Collector of Peoria County, 17 Court House, Peoria, Illinois 61602' and `taxpayers paying in person either or both installments of real property taxes may make said payment(s) at the Office of Township Collector in your town or at the Office of the County Collector, Room 17, Peoria County Court House.'"
Subsequently, the town of the city of Peoria and the township collector, Mildred Arends, filed a verified complaint in the circuit court of Peoria County against Edward T. O'Connor as county treasurer and ex-officio county collector and the County of Peoria seeking a declaratory judgment decreeing the above resolution to be contrary to law, and a permanent injunction enjoining the Peoria County collector from collecting real property taxes prior to September 1 of any collection year. After the court issued a preliminary injunction, the defendants answered the plaintiffs' complaint and filed a five-count counterclaim for declaratory relief. The defendants' counterclaim alleged, inter alia, that neither the town collector nor the town of the city of Peoria had the statutory authority to invest the proceeds of the real estate taxes collected; that even if the plaintiffs had the power to invest tax proceeds, their retention of the interest earned on the investment was illegal; that the plaintiffs have improperly retained the interest earned on the collection of real estate taxes paid under protest; and finally, that the retention of interest earned on the investment of tax proceeds was unconstitutional.
Following a hearing, the circuit court permanently enjoined the defendants from collecting real property taxes prior to September 1 of any collection year. The court also decreed by way of declaratory judgment that the town collector has the authority, but not the obligation, to invest tax proceeds in interest-bearing accounts, and that the town collector is without authority to retain any interest so earned. The court directed that any interest earned by the town collector on the investment of tax proceeds be distributed to the county and credited to the county treasury for the benefit of a county corporate fund. The defendant county collector and the County of Peoria now appeal from that portion of the order making the injunction permanent. The plaintiffs appeal from that portion of the order directing them to distribute interest earned on investment of tax proceeds to the County.
There are three issues raised for our consideration on appeal. First, does the town collector of the town of the city of Peoria (Town) have the exclusive right, prior to September 1 of any collection year, to collect real property taxes levied against property located within the township, or does she share that right with the county collector; second, does a town collector have the authority to invest tax proceeds in interest-bearing accounts; and third, if the town collector does have the authority to invest tax proceeds, may the township retain the interest income earned on the investments.
In regard to the first issue, the plaintiffs take the position that the resolution of the county board allowing for dual collection of real property taxes by the county and town collectors prior to September 1 of the collection year is contrary to law, specifically the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.). The plaintiffs contend that it is apparent from a reading of the various provisions of the Revenue Act that the town collector has the exclusive right prior to September 1 of the year to collect taxes. They place a great deal of reliance on sections 190 and 208 of the Revenue Act of 1939 in particular. Section 190 provides, in pertinent part, "Every town collector and every county collector, in cases where there is no town collector, upon receiving the tax book or tax books, shall proceed to collect the taxes mentioned herein." (Emphasis added.)(Ill. Rev. Stat. 1977, ch. 120, par. 671.) The Town contends that the language of section 190 which we have emphasized would not be present unless the legislature intended the town collector to have the exclusive right to collect taxes, with the county collector to act only in those instances where there is no town collector. Section 208 states, in regard to the power to collect unpaid taxes, "The power and duty to levy and collect any tax due and unpaid, shall continue in and devolve upon the county collector and his successors in office, after his return and final settlement until the tax is paid; * * *." (Ill. Rev. Stat. 1977, ch. 120, par. 689.) The Town argues that this section also supports the view that the town collector's right to collect taxes prior to September 1 is exclusive. In the plaintiffs' view, the term "devolve upon" necessarily means that the power to collect may lie with another official (i.e., the town collector) prior to final settlement on September 1. The plaintiffs contend that the General Assembly would not have used such language unless a functioning town collector had an exclusive right to collect unpaid taxes prior to final settlement.
The defendants, on the other hand, contend that both the county collector and town collector have the right to collect property taxes prior to September 1. The defendants rely on section 207 of the Revenue Act of 1939, which provides that "[c]county collectors shall have the same powers and may proceed in the same manner, for the collection of any tax on real or personal property, as town collectors; * * *." (Ill. Rev. Stat. 1977, ch. 120, par. 688.) The defendants also rely on section 172 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 653), which provides that collection books may be delivered to either the town collector or county collector, in support of their position that the county board resolution does not conflict with any statutory provision regarding the tax collection procedure.
1 In Illinois Power Co. v. Mahin (1978), 72 Ill.2d 189, 381 N.E.2d 222, the supreme court stated:
"The language of the statutes must be given its plain and ordinary meaning. `It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.' (Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 350.)" (72 Ill.2d 189, 194, 381 N.E.2d 222, 224.)
Following these basic tenets of statutory interpretation, we find that the legislature has made it quite evident that where a functioning town collector exists, that town collector is exclusively empowered to collect taxes prior to September 1 of a collection year. The language of section 190 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 671) is a clear manifestation of legislative intent, and is, to our minds, all but dispositive. According to the first sentence of that section, the county collector may act "in cases where there is no town collector." Obviously then, in cases where there is a town collector, he (or she, as in the present case) alone has the right to collect taxes upon receiving the tax book or books and the county collector has no authority to act prior to September 1, at which time final settlement is anticipated. (Ill. Rev. Stat. 1977, ch. 120, par. 680.) The language of section 208, although it deals with a subject not in issue in the instant case (collection of unpaid or delinquent taxes) also supports this view. Further, sections 207 and 172 of the Revenue Act of 1939, relied upon by the defendants in support of their position that a dual collection procedure is statutorily permissible where there is a functioning town collector, are not inconsistent with our holding that the right of the town collector to collect taxes prior to September 1 is exclusive. Those sections, read in conjunction with section 190, merely insure that county collectors have the same powers as town collectors, and may proceed in the same manner as town collectors in those cases where no functioning town collector exists. The county board resolution, insofar as it infringes upon the exclusive right of an active town collector to collect real property taxes prior to September 1, is indeed contrary to law, and the circuit court of Peoria County is correct in permanently enjoining the defendants from proceeding to collect real property taxes pursuant to its provisions.
The next issue before the court is whether the circuit court was correct in decreeing that the town collector has the authority, but not the obligation, to invest tax proceeds in interest bearing accounts. In seeking our affirmance of this portion of the declaratory judgment, the plaintiffs direct our attention to sections 1 and 2 of the investment-of-public-funds act (Ill. Rev. Stat. 1979, ch. 85, pars. 901, 902). Section 1 defines the term "public agency" for purposes of the Act, and includes townships within that definition. Section 2 then provides as follows in pertinent part:
"Any public agency may invest any public funds in bonds, notes, certificates of indebtedness, treasury bills or other securities now or hereafter issued, which are guaranteed by the full faith and credit of the United States of America as to principal and interest, or may invest in interest-bearing savings accounts, interest-bearing certificates of deposit or interest-bearing time deposits constituting direct obligations of any bank as defined by the Illinois Banking Act. * * * All public funds shall be invested as, in the judgment of such governing ...