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09/21/95 APPLICATION FOR JUDGMENT AND SALE

September 21, 1995

IN RE APPLICATION FOR JUDGMENT AND SALE OF DELINQUENT PROPERTIES FOR THE TAX YEAR 1989 (PEOPLE EX REL. JOHN LOTUS NOVAK, APPELLANT; ATI CARRIAGE HOUSE ET AL., APPELLEES).


The Honorable Justice Freeman delivered the opinion of the court:

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

In this Rule 302(a)(134 Ill. 2d R. 302(a)) appeal, we decide a case of first impression concerning the constitutionality of section 16 of the Local Government Debt Reform Act (Debt Reform Act)(Ill. Rev. Stat. 1989, ch. 17, par. 6916). The circuit court of Du Page County ruled that section 16 represents an unconstitutional delegation of legislative authority to the county clerk. We determine that section 16 is constitutional with regard to that charge and reverse the trial court's judgment.

BACKGROUND

The governing boards of six taxing districts (districts), located in Du Page County, adopted levy ordinances to collect taxes for the payment of indebtedness on certain general obligation bonds. The ordinances were adopted pursuant to section 16 of the Debt Reform Act. (Ill. Rev. Stat. 1989, ch. 17, par. 6916). In the case of the school districts, the ordinances were also supportable allegedly under the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 17-11). Although the record does not disclose whether or when the districts actually filed the ordinances with the county clerk, the parties have not contested that the ordinances were filed sometime after December 31, 1989. The districts issued bonds as follows: Village of Westmont, Bloomingdale Park District, Itasca Park District on February 1, 1989; School District 58 on January 30, 1990; and School Districts 63 and 100 on February 1, 1990. In 1990, the county clerk extended the districts' taxes for the year 1989, and included amounts for the payment of indebtedness on the bonds.

In 1990, owners of real properties located in thedistricts (objectors) paid their 1989 taxes under protest and filed objections in the county collector's "Application for Judgment and Sale of Delinquent Properties for the Tax Year 1989." The application for judgment and sale was filed in the circuit court. (See Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716.) Each objector disputed the levies. They claimed that levies adopted and presented for filing after December 31 of the tax year, the date that the county clerk is to close tax books, are void. (See Ill. Rev. Stat. 1989, ch. 120, par. 653.) They also claimed that, under section 16, the districts did not possess the authority to adopt the levy ordinances absent the agreement of the county clerk. They asserted that section 16 consequently represents an unconstitutional delegation of legislative authority to the county clerk in violation of the separation of powers doctrine (Ill. Const. 1970, art. II, § 1) and the structure and power of the legislature (Ill. Const. 1970, art. IV, § 1).

John Lotus Novak, treasurer and ex-officio county collector of Du Page County (collector), moved for partial summary judgment as to each objection. The circuit court denied the motion without providing a specific basis for its ruling and sustained the objections. The collector then filed a motion for reconsideration, raising an additional defensive argument as to the school districts and requesting clarification of whether the circuit court's ruling was that section 16 was unconstitutional or was that the levies were untimely filed. The circuit court denied the motion. The collector filed a second motion for reconsideration, citing subsequent appellate authority. The circuit court denied this motion, also. The collector appealed and the causes were consolidated. Following remand to the circuit court for clarification of its ruling, the appellate court transferred the cause to this court pursuant to Rule 365 (134 Ill. 2d R. 365). This court exercises jurisdiction pursuant to Rule 302(a) (134Ill. 2d R. 302(a)). Two objectors, ATI Carriage House et al. and Applewood Estates, Ltd., et al., have filed briefs.

Section 16 of the Debt Reform Act

Section 16, entitled "Levy for bonds," provides:

"A governmental unit may levy a tax for the payment of principal of and interest on general obligation bonds at any time prior to the issuance of such bonds, subject to the agreement of the county clerk that the county clerk will accept the filing of the ordinance levying such tax notwithstanding that such time is subsequent to the end of the calendar year next preceding the calendar year during which the tax will be collected. In extending taxes for general obligation bonds, the county clerk shall add to the levy for debt service on such bonds an amount sufficient, in view of all losses and delinquencies in tax collection, to produce tax receipts adequate for the prompt payment of such debt service." Ill. Rev. Stat. 1989, ch. 17, par. 6916.

ANALYSIS

The circuit court sustained the tax objections and denied the collector's motion for partial summary judgment based on the argument that section 16 represents an unconstitutional delegation of legislative authority to the county clerk. The objectors claimed that, within the provision, the term, "subject to," makes the levy ordinance process contingent on the agreement of the county clerk to accept the ordinance for filing. (Ill. Rev. Stat. 1989, ch. 17, par. 6916.) The objectors claimed that the provision also grants the county clerk, a ministerial officer, unbounded discretion in accepting the filing of the levy ordinance.

In a tax objection case, it is presumed that the assessed taxes are correct, and the objector bears the burden of proving facts to sustain his objection. ( People ex rel. McDonough v. New York Central R.R. Co. (1933), 355 Ill. 80, 188 N.E. 807.) The burden of proof as to the invalidity of a tax rests with the objector. ( People ex rel. Brenza v. Fleetwood (1952), 413 Ill. 530, 109 N.E.2d 741.) Furthermore, all statutes are presumed to be constitutional and the challenging party bears the burden of clearly establishing the statute's unconstitutionality. Rehg v. Illinois Department of Revenue (1992), 152 Ill. 2d 504; see also Opyt's Amoco, Inc. v. Village of South Holland (1992), 149 Ill. 2d 265, 172 Ill. Dec. 390, 595 N.E.2d 1060.

County Clerk's Authority

On appeal, the collector asserts that the "subject to" language in section 16 does not change substantively the legislative aspects of tax collection. The collector argues that section 16 merely allows the county clerk increased authority in accepting the filing of a levy ordinance after the levy has already been made. The collector cites In re Collector's Application for Judgment for Taxes Paid Under Protest for the Year 1988 (1992), 223 Ill. App. 3d 896 (hereinafter, Crosfield Chemicals), as deciding the construction issue here.

The collector asserts that the term "subject to" is susceptible of several ordinary meanings and, depending on its context, can indicate a subordination of rights, an imposition of liability, or a conditional promise. The collector argues that the term can also indicate simply a subsequent and nonsubordinating condition as is the case in real estate transfers where a conveyance is stated as "subject to" a mortgage or a lien of taxes. See Life ...


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