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09/27/94 DES PLAINES FIREMEN'S ASSOCIATION v. CITY

September 27, 1994

DES PLAINES FIREMEN'S ASSOCIATION, AND DONALD TROST, PLAINTIFFS-APPELLEES,
v.
THE CITY OF DES PLAINES, AN ILLINOIS MUNICIPAL CORPORATION, DEFENDANT-APPELLANT VILLAGE OF ARLINGTON HEIGHTS, VILLAGE OF ELK GROVE VILLAGE, VILLAGE OF PALATINE, VILLAGE OF NORTHBROOK, VILLAGE OF SCHAUMBURG, VILLAGE OF SKOKIE, AND THE CITY OF EVANSTON, ILLINOIS MUNICIPAL CORPORATIONS, INTERVENORS-DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. The Honorable Arthur Dunne, Judge Presiding.

As Modified On Denial of Rehearing November 15, 1994.

DiVITO, Scariano, McCORMICK

The opinion of the court was delivered by: Divito

MODIFIED ON DENIAL OF REHEARING

PRESIDING JUSTICE DiVITO delivered the opinion of the court:

In this declaratory judgment action, the circuit court granted the plaintiffs' motion for summary judgment, ruling that pursuant to an amended statute the City of Des Plaines (Des Plaines) was required to pay to its fire department money derived from the foreign fire insurance tax or license fee. Raising a number of constitutional issues, Des Plaines and various municipal intervenors appealed, and the appeals were consolidated by order of this court. For reasons that follow, we affirm.

On December 5, 1991, the Des Plaines Firemen's Association, a voluntary association whose members are full-time members of the Des Plaines Fire Department, and Donald Trost, treasurer of the Des Plaines fire department (jointly, plaintiffs), filed a complaint for declaratory judgment against Des Plaines, an Illinois home rule municipality. Plaintiffs alleged that Des Plaines was violating section 11-10-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 11-10-1 (now codified at 65 ILCS 5/11-10-1 (West 1992))), which permits municipal authorities to impose a tax or license fee of not more than 2% of the gross receipts received from fire insurance upon property located within the municipality written by out-of-State insurance companies, and section 11-10-2 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 11-10-2 (now codified at 65 ILCS 5/11-10-2 (West 1992))), which provides that the municipal treasurer shall pay all moneys derived from such a tax or license fee to the treasurer of the fire department of the municipality for the maintenance, use, and benefit of the fire department. Plaintiffs contended that Des Plaines was collecting the tax but not distributing the money to its fire department as required by law. Plaintiffs, therefore, sought a judgment declaring that Des Plaines is required to make the payments.

Des Plaines filed its answer, including affirmative defenses, maintaining that Public Act 86-395, which amended section 11-10-2 of the Illinois Municipal Code in 1990 to require that the funds collected under the statute be paid directly to the fire department, was unconstitutional, illegal, invalid, and unenforceable.

Subsequently, the Villages of Arlington Heights, Elk Grove Village, Palatine, Glencoe, Northbrook, Schaumburg, and Skokie, and the City of Evanston (intervenors) applied for leave to intervene as parties defendant in the case. All intervenors except the Village of Glencoe are Illinois home rule municipalities. Each was in the same position as Des Plaines, in apparent violation of the statute. The court granted leave to intervene to all applicants except the Village of Glencoe, because it was not a home rule municipality.

After all parties filed motions for summary judgment, the circuit court heard oral argument on the cross-motions and granted plaintiffs' motion, denying the motions of Des Plaines and intervenors. This appeal followed.

Division 10 of the Illinois Municipal Code, titled "Foreign Fire Insurance Company Fees," is composed of two parts. The first part provides:

"In each municipality or fire protection district, whether incorporated under a general or special law, which has a fire department established and maintained by municipal or fire protection district ordinances, every corporation, company, and association which is not incorporated under the laws of this state and which is engaged in effecting fire insurance in the municipality or fire protection district, shall pay to the treasurer of the municipality or to the secretary of the fire protection district for the maintenance, use, and benefit of the fire department thereof, a sum not exceeding 2% of the gross receipts received from fire insurance upon property situated within the municipality or district.

Each municipality and fire protection district may prescribe by ordinance the rate of the tax or license fee to be paid, but this rate shall not exceed the rate specified in this section." 65 ILCS 5/11-10-1 (West 1992).

The second part refers to fire department officers and the Disposition of funds derived from the foreign fire insurance tax or licensing fee. The predecessor statute was originally adopted in 1895, and prior to the amendment at issue in 1990 read as follows:

"The corporate authorities of any municipality containing less than 50,000 inhabitants which has an organized fire department shall pass an ordinance providing for the election of officers of that department, by the members of the department. These officers shall include a treasurer, and they shall make all needful rules and regulations with respect to the department and the management of the money to be paid to the treasurer. In all such municipalities the municipal treasurer shall pay the sum received from the insurance companies specified in Section 11-10-1 to the treasurer of the fire department of the municipality in which it is collected. The treasurer of that fire department shall give a sufficient bond to the municipality in which the fire department is organized. This bond shall be approved by the mayor or president, as the case may be, conditioned upon the faithful performance by the treasurer of his or her duties under the ordinance and the rules and regulations provided for in this section. The treasurer of the fire department shall receive the money so paid in and shall pay out the money upon the order of the fire department for the maintenance, use, and benefit of the department.

However, in any municipality where a firemen's pension fund is or may be established under this Code or other laws of this state, all of the money paid to the municipal treasurer as provided in Section 11-10-1 may be set apart and appropriated by the municipality to the fund for the pensioning of disabled and superannuated members of the fire department, and of the surviving spouses and orphans of deceased members of the fire department." Ill. Rev. Stat. 1989, ch. 24, par. 11-10-2.

Public Act 86-935 amended this section by deleting the last full paragraph, which allowed the money to be paid to the fire fighters' pension fund instead of to the fire department. It also added the following paragraph:

"The provisions of this Section shall be the exclusive power of the State, pursuant to subsection (h) of Section 6 of Article VII of the Constitution." (65 ILCS 5/11-10-2 (West 1992).)

Finally, Public Act 86-935 deleted the population requirement of 50,000 and substituted a population requirement of 250,000. (65 ILCS 5/11-10-2 (West 1992).) This amendment made the section apply to every municipality in Illinois except the City of Chicago. The amendment was vetoed by the governor, but the veto was ...


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