Appeal from the Circuit Court of Cook County. Honorable Earl Arkiss, Judge Presiding.
The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, S., JJ., concur.
The opinion of the court was delivered by: Theis
JUSTICE THEIS delivered the opinion of the court:
The plaintiffs appeal the circuit court's order dismissing their class action complaint challenging the constitutionality of the Airport Departure Tax Ordinance ("Departure Tax") imposed by the Metropolitan Pier and Exposition Authority ("MPEA"), and the statute which authorizes the ordinance. (70 ILCS 210/13(f) (West 1992); Metropolitan Pier and Exposition Authority Airport Departure Tax Ordinance § 1-3 (1992).) The action was brought on behalf of two classes. The first class consists of all operators of vehicles who are taxed under the ordinance, and the second includes the passengers who reimburse them. On appeal, the plaintiffs contend that because of procedural errors below, and because the Departure Tax violates the United States and Illinois Constitutions, a reversal and remand are warranted. We find that the plaintiffs' procedural challenges are without merit, and hold that the tax is constitutional. Therefore, we affirm.
In 1992, the General Assembly enacted Public Act 87-733, amending the Metropolitan Pier and Exposition Authority Act ("Act"). The Act authorizes the construction of a new McCormick plaza Exhibition Hall, the renovation of existing McCormick Place facilities and the construction of related infrastructure projects ("the Expansion Project"). ( Geja's Cafe v. Metropolitan Pier and Exposition Authority (1992), 153 Ill. 2d 239, 606 N.E.2d 1212, 180 Ill. Dec. 135.) The Act anticipates that the Expansion Project will be funded by bonds issued by the MPEA, which are to be repaid from the proceeds of a number of local taxes in addition to the Departure Tax at issue here. These taxes include a 2.5% hotel tax within Chicago, a 6% tax on rental cars within the metropolitan area, and a 1% tax on certain Chicago area restaurants which will be likely to benefit from the expansion because of increased business. (See 70 ILCS 210/13 (West 1992).) The Illinois Supreme Court has upheld the constitutionality of the restaurant tax. Geja's, 153 Ill. 2d 239, 606 N.E.2d 1212, 180 Ill. Dec. 135.
The portion of the Act concerning the Departure Tax provides in pertinent part:
"By ordinance, the Authority shall *** impose an occupation tax on all persons, other than a governmental agency, engaged in the business of providing ground transportation for hire to passengers in the metropolitan area at a rate of (i) $2 per taxi or livery vehicle departure with passengers for hire from commercial service airports in the metropolitan area, (ii) for each departure with passengers for hire from a commercial service airport in the metropolitan area in a bus or van operated by a person other than a person described in item (iii): $9 per bus or van with a capacity of 1-12 passengers, $18 per bus or van with a capacity of 13-24 passengers, and $27 per bus or van with a capacity of over 24 passengers, and (iii) for each departure with passengers for hire from a commercial service airport in the metropolitan area in a bus or van operated by a person regulated by the Interstate Commerce Commission or Illinois Commerce Commission, operating scheduled service from the airport, and charging fares on a per passenger basis: $1 per passenger for hire in each bus or van." 70 ILCS 210/13(f) (West 1992).
Pursuant to the authority granted by the statute, the MPEA approved the Departure Tax ordinance. The ordinance requires each taxi or other commercial vehicle to purchase tax stamps in sets of 10 for $20. Prior to departing from an airport with a fare-paying passenger, each vehicle operator who falls under the umbrella of the ordinance must tender one stamp to an MPEA collecting agent.
The ordinance also prescribes a variety of ways in which operators may choose to pass the burden of the tax along to their passengers, which we will refer to as the "burden passing provision." For example, taxi drivers may impose a $1 charge for each trip to or from O'Hare International Airport or Midway Airport. (Ordinance § 1-5(i).) The operators must pay the tax regardless of whether they elect to charge passengers for reimbursement. Ordinance § 1-3.
The plaintiffs initiated the present class action maintaining that the Departure Tax should be declared unconstitutional as to both operators and passengers because it violates the equal protection and due process clauses of the Illinois and United States Constitutions (counts I and II), and the commerce clause of the United States Constitution (counts III and IV). (U.S. Const., amend. XIV; U.S. Const., amend. V; U.S. Const., art. I, § 8.) Counts V and VI challenge the tax under the uniformity clause of the Illinois Constitution. Ill. Const. 1970, art. IX, § 2.
The defendant then filed a motion to dismiss the complaint in its entirety under section 2-615 of the Illinois Code of Civil Procedure. (735 ILCS 5/2-615 (West 1992).) The circuit court dismissed all counts of the complaint with prejudice, and denied the plaintiffs' motion to reconsider. Likewise, the court denied the plaintiffs' motion for leave to file a third amended complaint. The plaintiffs now appeal the issues of whether the defendant employed the wrong procedural device to dispose of this action, and whether the statute authorizing the tax and the ordinance imposed by the MPEA violate the United States and Illinois Constitutions.
I. The Motion to Dismiss under Section 2-615
The plaintiffs argue that the defendant should have answered the complaint and filed a motion for judgment on the pleadings under section 2-615(e), rather than a motion to dismiss under section 2-615(a). They also challenge the form of the defendant's motion, claiming that the MPEA failed to specifically identify the deficiencies in the complaint as required by section 2-615(b).
A motion to dismiss under section 2-615 may be used to dispose of a case if the facts alleged do not state a claim upon which relief can be granted as a matter of law. ( MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 241, 484 N.E.2d 371, 374, 91 Ill. Dec. 812.) "The requirement that all objections to a pleading be made by a § 2-615 motion implies that the defect complained of may be one of form or one ...