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09/27/89 In Re Application of the County Collector of Kane County

September 27, 1989

IN RE APPLICATION OF THE COUNTY COLLECTOR OF KANE COUNTY


SUPREME COURT OF ILLINOIS

(The People ex rel. Robert Critton, Kane County

Collector, et al., Appellants, v.

American National Bank and Trust Company, as Trustee, et

al., Appellees)

547 N.E.2d 107, 132 Ill. 2d 64, 138 Ill. Dec. 138 1989.IL.1500

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Michael J. Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Certain owners of real property located in Kane County within the corporate limits of the City of Aurora filed objections to the application for judgment based on their delinquent 1985 real estate taxes. They alleged that the tax levy of the city against their property was invalid because the city failed to publish an appropriation ordinance at least 10 days prior to passage of the tax levy ordinance. On stipulated facts, the trial court overruled their objections and granted the county collector's application for judgment. The appellate court reversed (172 Ill. App. 3d 897), and we granted leave to appeal (107 Ill. 2d R. 315).

The objectors each paid their 1985 real estate taxes under protest and filed timely objections to the city levy. The City of Aurora was permitted to intervene in the application of the county collector for judgment for delinquent taxes and present its own case. The facts, stipulated at trial, are as follows: that Aurora is a home rule municipality and had passed both its appropriation and levy ordinance for the 1985 tax year at a meeting of its city council held on March 26, 1985; that no addition, modification, refiling, amendment or substitute for either ordinance was thereafter enacted or filed by the city; and that section 2-28 of the Aurora Code of Ordinances (Aurora, Ill., Code of Ordinances § 2-28) and section 10 of the publication of notices act (Ill. Rev. Stat. 1985, ch. 100, par. 8.2) (Notices Act) were both in full force and effect at the time the appropriation and levy ordinances were adopted.

Objectors claim that a valid appropriation ordinance must be in effect at the time a tax levy ordinance is passed. They contend that the levy ordinance for 1985 was invalid because before its passage the city failed to comply with the time periods for publication of the appropriation ordinance prescribed in Aurora's ordinance section 2-28 (Aurora, Ill., Code of Ordinances § 2-28) and in section 1-2-4 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 1-2-4). Both of these provisions require publication of the appropriation ordinance and a passage of 10 days before it will take effect.

The City of Aurora first argues that it no longer is required to pass a valid appropriation ordinance prior to passage of its tax levy ordinance. It next contends that section 2-28 of the city ordinance was passed prior to Aurora's becoming a home rule unit and that it is not applicable because the 1985 appropriation ordinance was passed pursuant to Aurora's home rule powers and the city thereby repealed and effectively removed the publication requirements of the pre-home-rule ordinance. It also asserts that, under its home rule powers, it need not follow the publication requirements of section 1-2-4 of the Illinois Municipal Code. In the alternative, the city argues that the apparent limitations on home rule powers found in section 10 of the Notices Act (Ill. Rev. Stat. 1985, ch. 100, par. 8.2) were not constitutionally passed by the General Assembly and, thus, do not act to require a home rule unit to follow the publication provisions contained in the Illinois Municipal Code. Finally, it argues that the passage and approval of Public Act 85-855 cure any defect which might have existed in passage of the levy ordinance.

The trial court found that by exercising its power as a home rule unit of government in passing its 1985 appropriation ordinance, the city superseded the publication requirements of section 2-28 of the Aurora Code of Ordinances (Aurora, Ill., Code of Ordinances § 2-28). The court also found that section 10 of the Notices Act (Ill. Rev. Stat. 1985, ch. 100, par. 8.2) was passed by the General Assembly pursuant to section 6(i) of article VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, § 6(i)), but to properly limit and bind a home rule unit to the notice and publication requirements of section 1-2-4 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 1-2-4), section 10 should have been passed pursuant to section 6(g) of article VII of the constitution (Ill. Const. 1970, art. VII, § 6(g)). The 1985 tax levy ordinance was therefore declared to be valid and the county collector's application for judgment for delinquent taxes for 1985 was granted.

The appellate court reversed, holding that the city failed to comply with its own publication requirement which the appropriation ordinance expressly imposed and, therefore, the tax levy was invalid as to the objectors. Additionally, the appellate court held that Public Act 85--855 constitutes an ...


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