APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the court dismissing plaintiff's complaint on defendant's motion to strike and dismiss pursuant to sections 33, 45 and 48 of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, pars. 33, 45 and 48.) Plaintiff, suing on behalf of herself and others similarly situated, sought injunctive relief against and compensatory damages from defendant, for its failure to provide garbage removal service to Park Ridge condominium owners while providing such service to owners of single-family homes in Park Ridge.
The issues presented for review are: (1) whether the appeal should be dismissed for mootness; (2) whether the Park Ridge Council Policy Statement on refuse removal service is entitled to a presumption of validity; (3) whether Park Ridge's practice of providing refuse removal service from real estate tax revenues to one class of home owners while not providing it to other equally situated taxpayers violates the special legislation prohibition of the Illinois Constitution (Ill. Const. 1970, art. IV, § 13) and the equal protection clauses of both the United States and Illinois constitutions; (4) whether the policy of the city of Park Ridge requiring different treatment for condominium owner-occupants is in violation of the policy expressed in the Revenue Act of 1939. Ill. Rev. Stat. 1979, ch. 120, par. 501c-1.
Plaintiff's class action complaint alleged in pertinent part: that plaintiff is a resident of Park Ridge who owns and occupies a condominium apartment; that plaintiff has owned, occupied and paid real estate taxes thereon; that a substantial portion of those taxes are allocated to and received by defendant; that defendant regularly provides garbage and trash pickup service to its single-family residences but pursues a specific policy of not providing such service to its multifamily residences, including condominium multifamily residences; that funds for such service come exclusively from general revenues and property taxes derived from all types of property owners, including owners of condominium multifamily units; that in consequence of this policy, plaintiff and her class have been obliged to pay for private refuse removal service; that defendant's policy, practice and conduct of classifying real estate residence owners and taxpayers who receive such service paid for out of general tax revenue funds from those who do not receive such service is arbitrary, unreasonable and discriminatory in violation of the due process and equal protection clauses of the fourteenth amendment of the United States Constitution and article I, § 2 of the Constitution of the State of Illinois. *fn1
Defendants filed a motion to strike and dismiss the complaint. The motion alleged that municipal ordinances regulating the collection of garbage are entitled to a presumption of validity; that multiple-dwelling ownership is not a suspect classification under the due process and equal protection clauses of the United States Constitution and the Illinois Constitution; that the right to public garbage collection is not a fundamental right under the due process and equal protection clauses of both the United States Constitution and Illinois Constitution; that a rational basis exists for distinguishing between condominium owners in large multiple-unit residential buildings and owners of single-family housing units in that the owners of large residential buildings with a great amount of garbage have a more effective bargaining power with private scavenger services than owners of single-family dwelling units. Defendant also filed a memorandum of law in support of its motion asserting that defendant's garbage collection practices distinguish between single-family homes and large multiple-unit buildings pursuant to Policy Statement Number 5, approved August 19, 1974, by the City Council of Park Ridge.
Plaintiff filed a memorandum in opposition to defendant's motion. The memorandum asserted that defendant's policy statement was at best a mere resolution and was not entitled to a presumption of validity. Plaintiff further asserted that even assuming arguendo the policy statement was entitled to such a presumption, the presumption was rebuttable and in the instant case to extend city paid refuse service to single-family home units, but not to other types of dwellings, such as individual condominium units whose owners also pay real estate taxes was arbitrary, unreasonable and discriminatory.
Defendant filed a reply memorandum stating in pertinent part that Policy Statement No. 5 was a clarification of Ordinance 14-4-6 of the Municipal Code of the City of Park Ridge and that the ordinance and its attendant policy statement were entitled to a presumption of validity.
The court entered its final order and opinion finding that the Council Policy Statement No. 5 and Ordinance 14-4-6 of the city of Park Ridge were to be accorded equal dignity; that defendant had a rational basis for distinguishing between the refuse service needs of multifamily condominium owners and single-family unit owners in that owners of large residential buildings with a great amount of refuse have a greater bargaining power with private scavenger services than home owners of a single unit. Other justifications for the distinction included: (1) administrative supervision by municipal authorities charged with monitoring contract performance; (2) investment of capital equipment by private scavenger companies; (3) frequency of service to multifamily versus single-family units; and (4) location and method of pickup at multifamily versus single-family units. Accordingly, the court held that plaintiff's equal protection claims necessarily failed. The court also held that plaintiff's special legislation claim failed because a substantial difference in circumstances resulted from the difference in multifamily unit ownership and single-family ownership which were reasonably related to community health and sanitation. Finally, the court held that plaintiff had no grounds for recovery of compensatory damages as taxes not paid under protest are not recoverable. *fn2 The court then ordered that defendant's motion to dismiss the complaint be granted. Plaintiff appealed and defendant filed a motion to dismiss the appeal which we have taken with the case.
Initially, we address defendant's motion to dismiss the appeal on grounds of mootness. Defendant contends this case is moot because those portions of the Park Ridge Municipal Code challenged in plaintiff's complaint have been repealed in their entirety and amended by the Park Ridge City Council. Plaintiff counters, however, that this appeal is not moot because this court is asked to decide whether the original ordinance and statement of policy were defective and whether the city's practice was illegally discriminatory. Plaintiff further asserts that defendant's amendment does not exonerate it from liability for the discriminatory misconduct which caused plaintiff to suffer substantial damages. Further, if this court should find that the 1963 ordinance and policy statement were unconstitutional, plaintiff is entitled to have her complaint reinstated on the merits, with respect to her prayer for compensatory damages and her prayer for injunctive relief, by which she seeks the court to order defendant to provide her and her class with refuse removal service. Plaintiff has specified in her response to defendant's motion to dismiss this appeal and in her brief and oral argument on appeal that she only challenges defendant's previous policy statement and does not challenge the validity of defendant's current amended ordinance relative to garbage collection service enacted subsequent to the initiation of her suit. *fn3 Therefore, it is within these parameters that the alleged mootness of this appeal must be considered.
• 1 The existence of a real controversy is an essential requirement to appellate jurisdiction. (La Salle National Bank v. City of Chicago (1954), 3 Ill.2d 375, 121 N.E.2d 486; U-Haul Co. v. Town of Cicero (1980), 87 Ill. App.3d 915, 410 N.E.2d 286.) An issue becomes moot when, during the time in which appeal is pending, facts occur which make it impossible for the court to give effective relief to any party involved in the suit. Alper Services, Inc. v. Wilson (1980), 85 Ill. App.3d 908, 407 N.E.2d 677.
• 2 The passage of the current Park Ridge ordinance has foreclosed the injunctive relief plaintiff has requested. The policy statement on which she bases such relief has been repealed. Although under the new ordinance plaintiff does not receive garbage removal service she has specifically declined in this appeal to challenge the validity of the new garbage service ordinance. While ordinarily it is the duty of the appellate court to review the law as it exists at the time of its decision (Rios v. Jones (1976), 63 Ill.2d 488, 348 N.E.2d 825; Peoples Store v. McKibbin (1942), 379 Ill. 148, 39 N.E.2d 995), we decline in these circumstances to raise the constitutionality of defendant's new ordinance on our own initiative. Thus, there is no basis upon which the injunctive relief sought by plaintiff can be granted for we could not extend the operation or effect of the current ordinance beyond the intention of the legislative body which enacted it. People ex rel. Webster v. City of Chicago (1916), 272 Ill. 451, 112 N.E. 280.
• 3 The passage of the Park Ridge ordinance does not, however, foreclose plaintiff's claim for damages. Any alleged right she may have to damages crystalized when defendant under the previous ordinances and policy statement did not provide her with garbage removal service allegedly in violation of Federal and State constitutional equal protection provisions, necessitating that she expend personal resources to provide her own. (Cf. Phillips Petroleum Co. v. City of Park Ridge (1958), 16 Ill. App.2d 555, 149 N.E.2d 344.) Consequently, as plaintiff's claim for damages based on equal protection violations has not been foreclosed by the passage of defendant's new ordinance, a controversy between the parties remains and the case is not moot to the extent of plaintiff's claim for damages. Accordingly, defendant's motion to dismiss this appeal on the grounds of mootness is denied, and we proceed to consider the propriety of the dismissal of plaintiff's complaint.
The opinion of the trial court indicates that although defendant's motion to dismiss plaintiff's complaint was brought pursuant to sections 33, 45 and 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 33, 45, 48), the court granted the motion based on subsection 48(1)(i). The opinion specifically states that plaintiff's complaint is not defective as to form. Rather, the court framed the issue before it as whether the complaint "states a cause of ...