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Village of Oak Lawn v. Zagel

OPINION FILED MAY 8, 1981.

THE VILLAGE OF OAK LAWN, PLAINTIFF-APPELLANT,

v.

JAMES B. ZAGEL, DIRECTOR OF REVENUE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD O'BRIEN, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff, Village of Oak Lawn, appeals from an order which denied its motion for a preliminary injunction and dismissed its lawsuit. The dismissed class action complaint challenges six statutes which permit the State to keep 2% of the revenue it collects on behalf of counties and municipalities which impose various local sales taxes. *fn1 The following issues are raised on appeal:

(1) Does the Illinois Constitution prohibit the State from charging a fee for collecting local taxes?

(2) Does such a fee violate constitutional provisions on uniformity in taxation, due process, and equal protection? and

(3) Is it improper for the State to withhold an amount which exceeds collection costs?

The challenged statutes permit municipalities and counties to impose sales taxes which are collected by the Illinois Department of Revenue. The revenue raised by these local taxes is paid to the appropriate municipality or county "less 2% of such balance, which sum shall be retained by the State Treasurer to cover the cost incurred by the Department in administering and enforcing this section * * *." For the fiscal year which ended June 30, 1979, the Department allegedly withheld almost $10,000,000 under these provisions. According to the complaint, this is substantially more than the cost of collecting the taxes.

• 1 A preliminary question is whether the trial court erred in dismissing the action before considering whether to certify the class. (See Schlessinger v. Olsen (1980), 89 Ill. App.3d 583, 411 N.E.2d 1239, appeal allowed (1981), ___ Ill.2d ___.) We note that the procedure used by the trial court in the present case followed the procedure for handling a class action which was established by the supreme court in Landesman v. General Motors Corp. (1978), 72 Ill.2d 44, 377 N.E.2d 813. Since Landesman is controlling authority, we conclude that it was proper to rule on the motion to dismiss before deciding whether to certify the class.

Oak Lawn argues that the challenged statutes violate the constitutional provision which prohibits fees based on the collection of funds. (Ill. Const. 1970, art. 7, § 9(a).) The crucial question in the present case is whether this constitutional provision applies to the State in addition to units of local government.

Since the basic constitutional provision on revenue establishes that, "The General Assembly has the exclusive power to raise revenue by law except as limited or otherwise provided in this Constitution" (Ill. Const. art. 9, § 1), we must determine whether section 9(a) of article 7 limits this express grant of exclusive power.

Article 7 is the local government article of the Constitution and section 9 therein, entitled "Salaries and Fees," provides that:

"(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.

(b) An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected." (Emphasis added.)

• 2 Plaintiff contends that the third sentence in section 9 applies to the State, although it does not mention the State, and every other sentence in the section refers to local units of government. This would mean that a sentence which does not even refer to the State, and which is buried in a section which pertains solely to local government, would limit the expressly granted revenue raising power of the General Assembly. We do not believe that was the intent of either the Constitutional Convention or the voters who approved the Constitution. It is clear to us that the third sentence in section 9 applies only to units of local government. Examination of the Record of Proceedings of the Constitutional Convention leads to the same conclusion.

Part of the section on fees, submitted by the Committee on Local Government, provided that, "Officers and employees of units of local government may collect fees in the amounts and in the manner as provided by law, but fees shall not be based upon funds collected or the levy or extension of taxes." (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1717.) During the constitutional debates it was suggested that, solely for stylistic reasons, the Committee on Style, Drafting and Submission separate this proposal into two sentences. (4 Record of Proceedings 3405.) The delegate who was in charge of explaining this section to the committee of the whole agreed to make this stylistic recommendation. (4 Record of Proceedings 3405.) The proposal was passed, with amendments that are immaterial to this case, and sent to the Committee on Style, Drafting and Submission, where the recommended stylistic change was made. (7 Record of Proceedings 1957.) Since the Committee on Style, Drafting and Submission was merely a procedural committee (Coalition ...


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