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01/25/88 the City of Chicago, v. the City of Chicago

January 25, 1988

SUPREME COURT OF ILLINOIS ILLINOIS GASOLINE DEALERS ASSOCIATION ET AL., APPELLANTS

v.

THE CITY OF CHICAGO, APPELLEE. -- MIDWEST PETROLEUM MARKETERS ASSOCIATION ET AL., APPELLANTS,

v.

THE CITY



OF CHICAGO, Appellee

519 N.E.2d 447, 119 Ill. 2d 391, 116 Ill. Dec. 555 1988.IL.70

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

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Plaintiffs Illinois Gasoline Dealers Association (docket No. 64427) and Midwest Petroleum Marketers Association (docket No. 64458) filed separate lawsuits in the circuit court of Cook County, contesting the adoption by the city council of the City of Chicago of an amendment to chapter 200.10 of the Municipal Code of Chicago creating a "Chicago Vehicle Fuel Tax." The two cases were heard together in the circuit court on cross-motions for summary judgment. The circuit court upheld the challenged tax, granted summary judgment for defendant, and denied plaintiffs' cross-motions. Plaintiffs in both cases requested direct appeal to this court. This court allowed direct appeal pursuant to Supreme Court Rule 302(b) (107 Ill. 2d R. 302(b)) and consolidated the cases for review. We affirm the judgment of the circuit court.

On September 24, 1986, during a regular meeting of the Chicago city council, an alderman moved, pursuant to Council Rule 41, to take up a proposed vehicle fuel tax ordinance which had been referred to the council's finance committee on February 13, 1986. Rule 41 provides, in part:

"Whenever any referred matter . . . shall not have been reported back to the City Council by the Committee to which referred, within a period of (60) days, any alderman may move to discharge the committee from further consideration of that matter. The motion to discharge . . . shall require the affirmative vote of a majority of all the aldermen entitled by law to be elected." (Rules of the Chicago City Council, R. 41 (1986).)

The council voted on the motion to discharge, with 25 aldermen voting in favor of discharge and 23 aldermen voting against discharge. The mayor, as chairman of the council, then cast his vote in favor of the motion to discharge, and declared the motion passed by a vote of 26 to 23. According to the official record of the city council of Chicago, an alderman who had opposed the motion stated that he had a point of order and moved to appeal the ruling of the chair, citing Rule 41 and arguing that a majority of all aldermen did not vote in favor of discharge and that the motion therefore failed. The chair ruled the point of order not well taken.

A member of the council then moved to substitute a new version of the "Chicago Vehicle Fuel Tax Ordinance" for the version which had been discharged from committee, which motion prevailed by a viva voce vote. In the final vote to adopt or reject the substitute ordinance, 25 aldermen voted in favor of adoption, 23 voted against adoption, and the chair again cast its vote in favor of the ordinance, declaring that it had passed 26 to 23.

The main provision of the ordinance as adopted reads:

"200.10 -- 2. A tax is hereby imposed upon the privilege of purchasing or using, in the City of Chicago, vehicle fuel purchased in a sale at retail. The tax shall be at a rate of five cents per gallon of vehicle fuel. The ultimate incidence of and liability for payment of the tax shall be upon the purchaser or user of the vehicle fuel, and nothing in this chapter shall be construed to impose a tax upon the occupation of selling or distributing vehicle fuel. It shall be a violation of this chapter for any distributor or retail dealer to fail to add this tax to the retail price of vehicle fuel or to absorb the tax. This tax shall be in addition to any and all other taxes." Chicago Municipal Code, ch. 200.10 -- 2 (1986).

The ordinance imposes on fuel dealers the duty to collect the tax and keep collection records, and subjects them to various penalties for failure to comply with the requirements of the ordinance. (Chicago Municipal Code, chs. 200.10 -- 4, 200.10 -- 8, 200.10 -- 9 (1986).) Additionally, section 3 of the ordinance provides that all amounts received from the imposition of the tax will be used to provide for an abatement of a corresponding amount of property taxes. Journal of Proceedings of the City Council of Chicago, September 24, 1986, at 7 (Special Pamphlet Edition).

Plaintiffs assert four grounds for invalidating the ordinance: first, section 3 of the ordinance is an invalid delegation of the council's taxing power; second, the fuel tax is an unauthorized occupation tax that violates the Illinois Constitution; third, the fuel tax, taken with other Chicago taxes, constitutes multiple taxation in violation of the Illinois Constitution; and finally, plaintiffs argue that the city council of Chicago failed to follow its own procedures in voting to remove the ordinance ...


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