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04/16/97 PEOPLE STATE ILLINOIS v. COMMONWEALTH

April 16, 1997

PEOPLE OF THE STATE OF ILLINOIS, EX REL. JOHN J. WEBER, COUNTY TREASURER AND EX-OFFICIO TAX COLLECTOR OF WILL COUNTY, PLAINTIFF-APPELLEE,
v.
COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 12th Judicial Circuit. Will County, Illinois. Nos. 92--TX--15464, 93--TX--15582, 94--TX--15432. Honorable William R. Penn, Judge, Presiding.

Released for Publication May 30, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Peg Breslin, Justice. Justice Lytton delivered the opinion of the court. Breslin and Holdridge, JJ., concur.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

Commonwealth Edison Company objects to paying real estate taxes levied by the Reed-Custer Community Unit School District No. 255-U in 1991, 1992 and 1993. The collection of the levies is the responsibility of the treasurer of Will County, who serves as ex-officio tax collector. The circuit court found against Commonwealth Edison and in favor of the district and collector. Commonwealth Edison appeals. We affirm.

I.

In September 1991, the school district adopted a budget for fiscal year (FY) 1991-92. In December of 1991, the district adopted a levy for taxes that were due for 1991, but were to be paid in 1992. The proceeds from these 1991 taxes were used to finance expenditures during FY 1992-93. None of the proceeds from the 1991 levy were used to finance expenditures made during 1991. The district used a similar chronology for adopting budgets and imposing levies for the following two years.

Commonwealth Edison filed three tax objections, alleging that the district's levies in 1991, 1992 and 1993 were void because they violated section 5/17-1 of the School Code. 105 ILCS 5/17-1 (West 1992). All of the parties filed motions for summary judgment, and the circuit court entered judgment in favor of the district and the collector.

II.

A circuit court may properly grant a motion for summary judgment if the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact. 735 ILCS 5/2-1005(c) (West 1994). Where an appeal is taken from a judgment granting summary judgment, the appellate court reviews the matter de novo. Onsen v. Commonwealth Edison Co., 261 Ill. App. 3d 271, 272, 634 N.E.2d 1113, 1115, 199 Ill. Dec. 759 (1994).

The burden of establishing facts to support a tax objection is on the objector. There is a strong presumption in favor of the taxing authorities' proper exercise of their duties and the presumption must be overcome by clear and convincing evidence. In re Application of Rosewell, 159 Ill. 2d 393, 414, 639 N.E.2d 559, 568, 203 Ill. Dec. 239 (1994). Except to prevent an abuse of discretion, courts will not interfere with the exercise of sound business judgment on the part of taxing authorities. Rosewell, 159 Ill. 2d at 402, 639 N.E.2d at 563, citing People ex rel. Schaefer v. New York, Chicago & St. Louis R.R. Co., 353 Ill. 518, 523-24, 187 N.E. 443, 445 (1933).

Thus, abuse of discretion is the proper standard for courts to apply in reviewing levy ordinances. Rosewell, 159 Ill. 2d at 402, 639 N.E.2d at 563. However, if the challenged levy is void, in the sense that the taxing body exceeded its lawful authority in imposing the levy, the courts may sustain taxpayers' objections without resort to the abuse of discretion standard. This is because the taxing body lacks discretion to impose an unlawful levy. Rosewell, 159 Ill. 2d at 400, 639 N.E.2d at 562.

Accordingly, we review this case first to determine if the levies imposed were void under a de novo standard. Also, since we find the levies were not void, we will review the levy ordinances to determine if they were an abuse of the school district's discretion.

Section 5/17-1 of the School Code provides in pertinent part, "If the beginning of the fiscal year of a district is subsequent to the time that the tax levy for such fiscal year shall be made, then such annual budget shall be adopted prior to the ...


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