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Concannon v. Ill. Bell Telephone Co.

OPINION FILED NOVEMBER 10, 1986.

JAMES CONCANNON, INDIV. AND ON BEHALF OF ALL SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,

v.

ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT-APPELLEE (ANTHONY N. FRATTO, COMPTROLLER, OF THE CITY OF CHICAGO, INTERVENING PARTY-PLAINTIFF). — MICHAEL JAMES FROST, INDIV. AND ON BEHALF OF ALL SIMILARLY SITUATED, PLAINTIFFS,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

This case raises the issue of the applicability of the Chicago messages tax ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)) to the transmission of interstate messages originating or terminating within the city of Chicago and the taxability of the services related to such transmissions. On September 17, 1981, the plaintiff, James Concannon, a taxpayer, individually, and on behalf of all those similarly situated, filed a lawsuit, later amended, alleging that Illinois Bell Telephone Company (Illinois Bell) failed to report or remit messages taxes on interstate messages as required under the messages tax ordinance of the city of Chicago (Municipal Code of Chicago, sec. 132-30 et seq. (1979)). The comptroller of the city of Chicago, on December 4, 1981, also issued a notice of additional taxes to Illinois Bell payable for the period of November 1975 through June 1979 that was apparently for interstate messages originating or terminating within the city of Chicago during that period and that had not been remitted by Illinois Bell to the city of Chicago.

Thereafter, Illinois Bell filed a petition for writ of certiorari to the circuit court of Cook County requesting that this determination of the comptroller be set aside and held for naught. Illinois Bell also filed a complaint for declaratory judgment in the circuit court of Cook County against the city of Chicago (city) and the comptroller, wherein Illinois Bell sought a determination that the comptroller's continued interpretation of the city's messages tax ordinance, specifically that a tax was due from Illinois Bell for the transmission of interstate messages, was illegal, invalid and unconstitutional.

Subsequently, on September 24, 1982, Michael James Frost, a telephone subscriber, individually, and on behalf of all those similarly situated, filed a lawsuit against the city of Chicago, the city's comptroller, and Illinois Bell alleging, as Illinois Bell had in its suit, that the comptroller's interpretation and application of the Chicago messages tax ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)) to interstate messages was unlawful and sought a temporary and permanent injunction against the city's comptroller from continuing this practice.

On May 12, 1983, all of these actions were consolidated by the circuit court into the Concannon class action that had been filed previously. Following a partial settlement of a number of issues involved in the case, on June 1, 1985, the parties filed cross-motions for declaration of rights on stipulated facts regarding the tax liability of Illinois Bell to the city for its interstate messages revenues. The plaintiff Concannon's class action motion sought a declaration that interstate revenue was taxable retroactive to 1956, the effective date of the Chicago messages tax ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)). The city of Chicago, by its motion, sought retroactive recovery from November 1, 1975, together with an award of a penalty as provided in the messages tax ordinance. In its motion, Illinois Bell sought a declaration that its gross receipts from interstate messages were not subject to the Chicago messages tax ordinance. The plaintiff Frost filed a memorandum of law in support of Illinois Bell's position.

The stipulation of facts, for purposes of the motions of the parties, provided:

"(a) That all times since January 1, 1956, the effective date of the Chicago Messages Tax Ordinance, until the present, Illinois Bell has derived gross receipts from the business of transmitting interstate messages. Interstate messages are defined as message transmissions that either originate or terminate outside the State of Illinois. For the purposes of said motions, interstate messages are defined as message transmissions that either (i) originate within the corporate limits of the City of Chicago and terminate outside the State of Illinois or (ii) terminate within the corporate limits of the City of Chicago and originate outside the State of Illinois.

(b) At all times since January 1, 1956, until the present, Illinois Bell has not billed its customers any amounts pursuant to Section 36(a) of the Public Utilities Act, Ill. Rev. Stat. ch. 111 2/3, sec. 36(a) in order to recover any Chicago Messages Tax expense resulting from its gross receipts from interstate message transmissions originating or terminating within the corporate limits of the City of Chicago and related services.

(c) That at all times since January 1, 1956, the effective date of the Chicago Messages Tax Ordinance, until the present, Illinois Bell has not paid to the City of Chicago messages tax on gross receipts from the transmission of interstate messages originating or terminating within the corporate limits of the City of Chicago and related services."

On September 11, 1985, the trial court found and declared that "gross receipts from the transmission of interstate messages originating or terminating within the corporate limits of the City of Chicago and related services are not subject to the Chicago Messages Tax Ordinance," and that "the City of Chicago lacks legal authority to apply said Messages Tax Ordinance to said interstate revenue." The court then entered judgment in favor of Illinois Bell against the plaintiff Concannon class action and the city of Chicago. Certain issues regarding directory advertisement were taken under advisement by the trial court. However, the trial court expressly found, pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), that there was no just reason for delaying enforcement or appeal of the order. The plaintiff Concannon's class action has now appealed from this order. The city of Chicago did not join in the appeal of the court's September 11, 1985, order.

We affirm.

On appeal, the Concannon class action argues that the plain language of the ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)) requires Illinois Bell to report and remit a percentage of its gross receipts from the transmission of interstate messages to the city of Chicago as a messages tax; the language of the ordinance is not, on its face, limited to intrastate calls, and thus, must be interpreted broadly; the language of the ordinance is clearly distinguishable from the Illinois Messages Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 467.1 et seq.), and is not controlled by the supreme court's decision in Illinois Bell Telephone Co. v. Allphin (1982), 93 Ill.2d 241, 443 N.E.2d 580; and finally, the imposition of a tax on interstate commerce was not, at the time of adoption of the ordinance, and is not now, an unconstitutional burden on interstate commerce. Alternatively, Concannon argues that, even if the ordinance could not at the time of its enactment tax interstate messages, it later could do so lawfully, and therefore, the tax here should be allowed to be imposed, apparently from the time of the asserted change in constitutional limitations on interstate taxes.

The defendant, Illinois Bell, joined by plaintiff-appellee, Michael James Frost, argues that the issue here has been determined by the Illinois Supreme Court in Adler v. Illinois Bell Telephone Co. (1978), 72 Ill.2d 295, 381 N.E.2d 294, and, subsequently, expressly affirmed by the court in Illinois Bell Telephone Co. v. Allphin (1982), 93 Ill.2d 241, 443 N.E.2d 580. Illinois Bell points out that the supreme court construed the exact city of Chicago messages tax ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)) in the Adler case. There, the plaintiff, a taxpayer like plaintiff Concannon here, argued that the city's application of its tax to intrastate messages only, created an unreasonable classification and resulted in an unreasonable loss of revenue which the court rejected. The court held, however, that the city's failure to apply its messages tax to interstate revenue, while applying it to intrastate revenue, did not create an improper classification or result in a denial of equal protection of the laws. Thus, Illinois Bell maintains that decision held that the city's messages tax ordinance did not apply to interstate messages revenues.

This decision was therefore affirmed, Illinois Bell contends, in the Allphin decision, where the supreme court explained that its decision in Adler was an application of the principle that statutes must be interpreted according to the law as it existed when the particular statute was adopted. The court specifically stated, Illinois Bell continues, that it had applied this principle in Adler and construed the city of Chicago messages tax ordinance (Municipal Code of Chicago, sec. 132-30 et seq. (1979)) as not applicable to interstate revenues, even though it was not so limited on its face, because the Federal law at the time the ordinance was adopted barred such taxes on interstate commerce. Thus, Illinois Bell submits that the supreme court has authoritatively construed the ordinance ...


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