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05/13/88 Shirley M. Belke, On v. the County of Peoria Et Al

May 13, 1988

SITUATED, PLAINTIFF-APPELLANT

v.

THE COUNTY OF PEORIA ET AL., DEFENDANTS-APPELLEES

(1) REFERENDUM-APPROVED GENERAL OBLIGATION BONDS. (ILL. RE

v.

STAT. 1985, CH. 34, PAR. 306.)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

SHIRLEY M. BELKE, on behalf of herself and others similarly

523 N.E.2d 1295, 169 Ill. App. 3d 839, 120 Ill. Dec. 384 1988.IL.746

Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

This case is a consolidation of two interlocutory appeals pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)). The action is based upon a complaint filed on November 16, 1987, by the plaintiff, Shirley Belke (a registered voter residing in Peoria and a Peoria county board member), seeking a writ of mandamus ordering a referendum be held regarding the accumulation of tax funds by the defendant, County of Peoria (County), and seeking a permanent injunction prohibiting further accumulation without authority. On December 23, 1987, the plaintiff sought a preliminary injunction preventing the expenditure of the accumulated funds. On January 22, 1988, the trial court denied the injunction and dismissed the complaint with leave to file an amended complaint. From that denial order the plaintiff filed the original interlocutory appeal in this case. The second such appeal arises from the trial court's denial of a motion for a temporary restraining order filed in and disposed of by the trial court during the pendency of this court's review of the initial appeal.

The complaint in the instant case and the orders now under review arose subsequent to the County's decision to renovate and expand its present courthouse and finance the project out of property tax revenues. On January 14, 1986, the County and the Public Building Commission of Peoria had entered into an agreement for a joint project to renovate the present Peoria County courthouse and build an administrative building across from the courthouse square. It was the intention of the PBC to finance the project through public building nonreferendum bonds. Differences of opinion arose between the County and the PBC concerning the project. In October of 1986 the County decided that the site of the administrative office building would be changed to the courthouse square, a purely legislative decision exclusively within the purview of the county board. The PBC refused to finance the project as it was then designed.

In order to understand the background of this proceeding, the following constitutes a synopsis of the relevant events that transpired after that point in time: (1) November 14, 1986, the County requested property tax revenue from the corporate general fund in the amount of $710,548.00 for use during fiscal year 1987; (2) November 17, 1986, the county board chairman recommended that the board appropriate $2 million for the fiscal year 1987 budget for the courthouse project, subject to abatement if the County and the PBC reconciled their differences; (3) November 17, 1986, the resolution to levy the $2 million was adopted (both parties in their briefs, arguments and pleadings erroneously refer to this levy as the 1986 tax levy; the levy for fiscal year 1987 is more properly called the 1987 levy, and such term is the one used throughout this opinion); (4) November 25, 1986, the county board enacted a tax levy ordinance for fiscal year 1987; (5) November 30, 1986, fiscal year 1986 ended; (6) March 31, 1987, the county extended and assessed the 1987 tax levy, including the $2 million, and collected such taxes thereafter; (7) November 30, 1987, fiscal year 1987 ended and $1,770,170.76 remained in the corporate fund.

Initially, regarding the instant appeals, we address the propriety of the trial court's denial of the plaintiff's motion for a preliminary injunction. The injunction sought to prevent the County from expending the tax funds on hand and undertaking the building project until an approval by referendum was obtained.

A preliminary injunction is the primary means of obtaining injunctive relief prior to trial on the merits, which relief is exceptional in its own right. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.) The standards for issuing preliminary injunctions involve a variety of circumstances, but generally the court must be satisfied that: (1) the plaintiff possesses a clearly ascertained right which needs protection; (2) she will suffer irreparable harm without the injunction; (3) there is no adequate remedy at law for her injury; and (4) she is likely to be successful on the merits of her action. (Central Building & Cleaning Co. v. Vodnansky (1980), 84 Ill. App. 3d 586, 406 N.E.2d 32.) In addition, the court must conclude that the grant of temporary relief outweighs any possible injury which the defendant might suffer by its issuance. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953.) The party seeking the injunction has the burden of proving the necessity therefor. Board of Education of City of Peoria School District No. 150 v. Peoria Education Association (1975), 29 Ill. App. 3d 411, 330 N.E.2d 235.

The decision of whether to grant the preliminary injunction rests within the sound discretion of the trial court, with appellate review restricted to determining whether the trial Judge correctly exercised his broad discretionary powers. (Hoover v. Crippen (1987), 151 Ill. App. 3d 864, 503 N.E.2d 848.) A reviewing court will not reach the merits in an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)), as the only justiciable issue is whether the court properly granted the preliminary injunction. However, as the grant or denial of the motion under review will, in effect, determine this litigation and thus afford the same relief sought to be obtained by the judgment, the injunction should be granted with great caution and only where it is clearly required.

It is the plaintiff's position that only three methods of public financing exist under which the County may obtain funds to build the proposed courthouse:

(2) Nonreferendum financing pursuant to the Public Building Commission Act (Ill. Rev. Stat. 1985, ...


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