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06/29/87 City & Suburban v. the City of Chicago

June 29, 1987

CITY & SUBURBAN DISTRIBUTORS-ILLINOIS, INC., ET AL., PLAINTIFFS-APPELLEES

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 1158, 157 Ill. App. 3d 791, 110 Ill. Dec. 127 1987.IL.914

Appeal from the Circuit Court of Cook County; the Hon. Earl J. Arkiss, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Plaintiffs, numerous wholesale and retail distributors of liquor and two individual liquor purchasers, filed a three-count complaint seeking declaratory and injunctive relief challenging the Chicago Liquor Tax Ordinance (Chicago Municipal Code sec. 200.11 (1986)) passed by the Chicago city council on May 14, 1986. Plaintiff's complaint challenged both the constitutionality of the tax and the procedural method by which it was passed and sought a preliminary injunction against enforcement and collection of the tax. The defendant, the city of Chicago, filed a motion to dismiss. The trial court denied the motion finding that the tax ordinance was invalidity passed because it was contained in a substitute ordinance which was not germane to the original tax ordinance submitted for passage. The court granted plaintiffs a preliminary injunction and required the city to hold all funds paid under the challenged tax in an escrow account. *fn1 The city filed this interlocutory appeal from the entry of the preliminary injunction. On appeal, the city contends (1) the trial court erred in imposing a germaneness requirement on the substitute ordinance containing the liquor tax; (2) assuming, arguendo, a germaneness requirement existed, the substitute ordinance would have been germane to the original ordinance; and (3) an ordinance may not be invalidated as a result of a violation of the city council's procedural rules where no member of the council asserted that a violation had occurred.

At its meeting on May 14, 1986, the Chicago city council addressed a proposed ordinance to enact an aircraft fuel tax. This ordinance proposed a new tax on aircraft fuel to generate operating funds for the city pursuant to Chicago's home rule powers. (Ill. Const. 1970, art. VII, sec. 6(a).) The tax was to be imposed at a rate of five cents per

The liquor tax became effective June 10, 1986. The tax is imposed on the retail sale of alcoholic beverages in the city of Chicago at a rate of 15 cents per gallon on wine, 50 cents per gallon on alcohol and spirits and 12 cents per gallon on beer. The tax is collected from the retail purchaser through retail dealers and wholesale distributors acting on behalf of the city. Chicago Municipal Code secs. 200.11 -- 4, 200.11 -- 5 (1986).

On June 9, 1986, plaintiffs filed suit seeking declaratory and injunctive relief challenging the liquor tax ordinance. Defendant moved to dismiss the action. The trial court denied the motion holding that when the city council substitutes one proposed ordinance for another on the council floor, the subject matter of the substitute ordinance must be germane to that of the original ordinance. The court found that the liquor tax ordinance was not germane to the aircraft fuel tax ordinance for which it was substituted and was, therefore, invalidity passed by the city council. The court further entered a preliminary injunction prohibiting the enforcement of the liquor tax and requiring the city to hold all funds paid under the tax to be held in an interest-bearing escrow account until further order of court.

The city first argues that the trial court erred by subjecting the substitute ordinance containing the liquor tax ordinance to a germaneness requirement. The trial court held that the substitute ordinance containing the liquor tax "was not germane to the original ordinance" and therefore "was in violation of the City Council's rules as well as the construction which parallels statutes and the constitution."

Under the city council's rules a motion to substitute is governed by Rule 33, which states as follows:

"A substitute for any original proposition under debate or for any pending amendment to such proposition may be entertained notwithstanding that at such time further amendment is admissible; and if accepted by the Council by a majority vote of the Aldermen entitled by law to be elected shall entirely supercede such original proposition or amendment, as the case may be, and cut off all amendments appertaining thereto." (Council Rules, R. 33.)

A plain reading of the rule reveals no germaneness requirement. Plaintiffs argue that the germaneness requirement for motions to amend under Rule 30 also governs Rule 33 motions to substitute. Rule 30 states that "[an] amendment modifying the intention shall be in order; but an amendment relating to a different subject shall not be in order." (Council Rules, R. 30.) Plaintiffs note that under council Rule 47 (Council Rules, R. 47), Robert's Rules of Order (Robert's Rules of Order Newly Revised (1970)) govern council deliberations to the extent that those rules are not inconsistent with the council's rules. Under section 12 of Robert's Rules of Order a substitute is one type of an amendment. Plaintiffs argue, therefore, that the germaneness requirement for amendments to ordinances found in Rule 30 applies equally to substitute ordinances.

We find plaintiffs' argument without merit. The city council's rules clearly differentiate between motions to amend and motions to substitute. Rules 29, 30, and 31 (Council Rules, Rules 29, 30, 31), which contain the requirements and procedures applying to amendments, are preceded by the heading "Motion to Amend." Rule 33 (Council Rules, R. 33) is titled "Motion to Substitute" and contains distinct requirements for substitutions. Specifically, a motion to amend may be adopted by a majority of those present and voting, if a quorum is present, while a motion to substitute requires an absolute majority of the council's elected membership. Since the city council rules clearly differentiate between motions to amend and motions to substitute, the germaneness requirement contained in Rule 30 applying to amendments cannot be drafted onto motions to substitute. It is not this court's function to impose parliamentary requirements that are not demanded by the city council's rules. (Durjak v. Thompson (1986), 144 Ill. App. 3d 594, 494 N.E.2d 589; Roti v. Washington (1983), 114 Ill. App. ...


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