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Potter v. Judge





Appeal from the Circuit Court of Bureau County; the Hon. Frank X. Yackley, Judge, presiding.


This action involves the appeal from an order granting judgment on the pleadings based upon a complaint for declaratory judgment filed by John Potter and E.P. Becker, Inc., an Illinois corporation, against the city of Princeton, a municipal corporation, Eugene Judge, Helen L. Judge and Citizens First National Bank of Princeton, a banking corporation, requesting that the trial court decide that the "Industrial Project Revenue Bond Act," as applied and alleged in the complaint filed, was unconstitutional and further seeking a determination that the "Open Meetings Act" was likewise violated in certain particulars. The trial court allowed the joint motion for judgment on the pleadings filed by all defendants.

On December 7, 1981, the city of Princeton adopted an ordinance which authorized the issuance of its Industrial Project Revenue Bonds (IRBS), at the request of Eugene and Helen L. Judge, for the acquisition and construction of a "Convenient Food Mart" within the city of Princeton; the project was to be financed by Citizens First National Bank of Princeton. The initial meeting of the Princeton City Council to consider this request occurred on November 27, 1981, the day after Thanksgiving. The meeting was later continued until the date at which the ordinance in question was adopted. John Potter and E.P. Becker, Inc. (Beckers) claimed that the proposed "Convenient Food Mart" would be in direct competition with their existing retail businesses and filed a complaint for declaratory judgment, alleging what they believed to be certain constitutional violations by the ordinance and also claiming that the ordinance was adopted, in part, in violation of the Open Meetings Act.

The statute which plaintiffs challenge provides as follows:

"Whenever used in this Division 74, unless a different meaning clearly appears from the context:

(1) `Industrial project' means any (a) capital project, including one or more buildings and other structures, improvements, machinery, and equipment whether or not on the same site or sites now existing or hereafter acquired, suitable for use by any manufacturing, industrial, research or commercial enterprise including, but not limited to, use as a factory, mill, processing plant, assembly plant, packaging plant, fabricating plant, office building, industrial distribution center, warehouse, repair, overhaul or service facility, freight terminal, research facility, test facility, commercial facility, and including also the sites thereof and other rights in land therefor whether improved or unimproved, site preparation and landscaping, and all appurtenances and facilities incidental thereto such as utilities, access roads, railroad sidings, truck docking and similar facilities, parking facilities, dockage, wharfage, and other improvements necessary or convenient thereto; or (b) any land, buildings, machinery or equipment comprising an addition to, or renovation, rehabilitation or improvement of any existing capital project.

(2) `Municipality' includes any city, village or incorporated town in this State." Ill. Rev. Stat. 1981, ch. 24, par. 11-74-2.

"It is hereby determined and declared that the purpose of this Division 74 is to relieve conditions of unemployment, to maintain existing levels of employment, to aid in the rehabilitation of returning veterans, and to encourage the increase of industry and commerce within this State, thereby reducing the evils attendant upon unemployment, to increase the tax base of the various municipalities of this State and to permit municipalities in this State to take as much advantage of the provisions of Section 103 of the United States Internal Revenue Code as is possible, which are all declared and determined to be public purposes and for the public safety, benefit and welfare of the residents of this State." Ill. Rev. Stat. 1981, ch. 24, par. 11-74-3.

The plaintiffs' constitutional arguments allege that the Industrial Project Revenue Bond Act (Ill. Rev. Stat. 1981, ch. 24, par. 11-74-1 et seq.) contravenes rights guaranteed by the fourteenth amendment of the United States Constitution, and by article I, section 2 of the Constitution of the State of Illinois. These constitutional provisions, of course, guarantee the fundamental rights to due process of law and to equal protection of the laws.

The plaintiffs frame their constitutional arguments exclusively in terms of equal protection. Notwithstanding this premise, however, the plaintiffs offer no authority or analysis which is based on equal protection. The authorities upon which they rely appear to focus on the wholly different question of whether municipal bond financing of private industry embodies a public purpose.

The "public purpose" analysis rests, in part, upon the long-settled principle that the imposition of taxes for nonpublic purposes contravenes due process of law. (Green v. Frazier (1920), 253 U.S. 233, 64 L.Ed. 878, 40 S.Ct. 499; Schuler v. Board of Education (1938), 370 Ill. 107, 18 N.E.2d 174.) The analysis also rests in part upon State constitutional provisions, which typically prohibit the extension of public funds or public credit for private purposes. The Illinois Constitution of 1970, article VIII, section 1(a), provides:

"Public funds, property or credit shall be used only for public purposes."

Neither basis for the "public purpose" analysis appears in the case at bar. The due process issue is not presented, because the Act does not in any way involve the use of tax revenues. *fn1 (People ex rel. City of Salem v. McMackin (1972), 53 Ill.2d 347, 291 N.E.2d 807.) The "use of public funds, property, or credit" issue is not presented, because the plaintiffs did not plead that section of the State Constitution in their complaint.

• 1 The plaintiffs have therefore failed to argue the only constitutional issue (that of equal protection) which is presented by their complaint. They have argued a separate constitutional issue (that of "public purpose") which has no basis in their complaint, and which therefore is not germane to a judgment on the pleadings. This court must therefore reject summarily the contention of the plaintiffs that the Act, or any portion of the Act, is unconstitutional. Bare contentions unsupported by argument or by citation of authority are waived on appeal. 87 Ill.2d R. 341(e)(7); Village of Roxana v. Costanzo (1968), 41 Ill.2d 423, 243 N.E.2d ...

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