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11/27/89 the County of Cook, Bureau v. the County of Cook

November 27, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION ILLINOIS WINE & SPIRITS COMPANY, PLAINTIFF-APPELLANT

v.

THE COUNTY OF COOK, BUREAU OF ADMINISTRATION, ET AL., DEFENDANTS-APPELLEES



548 N.E.2d 416, 191 Ill. App. 3d 924, 139 Ill. Dec. 31 1989.IL.1827

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff, Illinois Wine & Spirits Co., appeals from an order granting judgment in favor of defendants, the County of Cook, Bureau of Administration, and William M. Doyle, assessing a tax liability against plaintiff. Plaintiff raises constitutional issues concerning the Cook County Retail Sale of Alcoholic Beverages Tax §§ 13 -- 95 to 13 -- 105 (1975). We address the issues of whether the tax ordinance as applied to plaintiff, an out-of-county wholesaler, is an occupation tax, violates equal protection, and is an extraterritorial application of the tax. For the following reasons, we affirm.

Plaintiff filed a three-count complaint, as amended, for declaratory and injunctive relief against defendants alleging the following facts. Plaintiff was a wholesale dealer of alcoholic beverages located in Will County, Illinois, and received written notice from defendants of a tax liability under the ordinance. The tax liability including interest was $103,381.55 for the period from January 1, 1976, through December 31, 1978. Plaintiff filed a written protest of the tax. Plaintiff alleged that the tax was unconstitutional because it was an occupation tax, it violated equal protection, and it was an extraterritorial application of Cook County's taxing power.

Defendants answered the complaint denying the material allegations and filed a counterclaim for the tax liability. Defendants alleged that plaintiff sold alcoholic beverages at wholesale to 15 different retail dealers in Cook County from 1976 to 1978. The tax due on plaintiff's sales of alcoholic beverages to retailers doing business in the county was $47,468.16 and the interest on that amount was $55,913.39. Plaintiff refused to pay. In their counterclaim, defendants sought judgment against plaintiff for the tax due plus interest., Plaintiff answered the counterclaim denying the material allegations.

Plaintiff moved for summary judgment, arguing that the tax was an unconstitutional occupation tax, violated equal protection, and was an extraterritorial application of the county's taxing power. Defendant filed a cross-motion for summary judgment on the same issues.

The trial court denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment. The case was continued to determine the amount of plaintiff's tax liability. Following a trial, the court entered judgment in defendants' favor in the amount of $154,729.12 for tax and interest. Plaintiff's motion for reconsideration was denied and it now appeals.

Opinion

The Illinois Constitution of 1970 established home rule units of local government, and their powers are explained in this manner: "Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." Ill. Const. 1970, art. VII, § 6(a).

Cook County passed the ordinance in question pursuant to its home rule powers. The ordinance imposed a tax on the retail sale of alcoholic beverages occurring in the county. Alcoholic beverages were taxed by the gallon at various rates depending on the type of alcoholic beverage. The ordinance recited, "The ultimate incidence of and liability for payment of the tax herein levied to be borne by the consumer of said alcoholic beverages." (Cook County Retail Sale of Alcoholic Beverages Tax § 13 -- 95 (1975).) Each wholesale dealer of alcoholic beverages was required to collect the tax when it sold alcoholic beverages to a retail dealer doing business in Cook County. The retail dealer was required to collect the tax from the consumers of alcoholic beverages. A wholesale dealer was defined as "[a]ny person who engages in the business of selling or supplying alcoholic beverages to any person for resale in the County of Cook." (Cook County Retail Sale of Alcoholic Beverages Tax § 13 -- 103(d).) Wholesale dealers were required to register with the county, file monthly reports of sales of alcoholic beverages, and remit the tax applicable to the sales. Violations of the ordinance could incur a fine between $100 and $1,000, and/or imprisonment up to six months. In addition, the county could institute civil proceedings to recover the tax due plus interest, penalty, and costs. Cook County Retail Sale of Alcoholic Beverages Tax §§ 13 -- 95 to 13 -- 105 (1975).

An ordinance carries a presumption of constitutionality, and the burden of overcoming that presumption rests on the party challenging the ordinance. Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6. I

Initially, plaintiff argues that the county ordinance imposes an occupation tax in violation of article VII, section 6(e), of the Illinois ...


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