The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 97L50281
HONORABLE THOMAS P. QUINN, JUDGE PRESIDING.
This is a constitutional shootout. The weapons are ordinances purportedly authorized by the home rule provisions of the Illinois Constitution of 1970.
Cook County's ordinance creates an amusement tax that is to be collected and remitted by owners and operators of amusement places. The Village of Rosemont, which owns and operates amusement places, enacted an ordinance that provides the Village's patrons won't pay the tax and Village employees won't collect it.
When the smoke clears, only the County is standing. But it's not over yet.
In November 1996, pursuant to its home rule powers, Cook County (the County) enacted the Cook County Amusement Tax Ordinance. This ordinance, which took effect February 1, 1997, taxed the "privilege of witnessing or participating in amusements within Cook County." Patrons of "amusements," as defined by the ordinance, were to be taxed in an amount equal to 3% of the admission fee or charge. The ordinance made it the duty of "every owner, manager, or operator of an amusement or of a place where an amusement is being held" to act as a trustee for the County, to collect the tax, and to remit the tax to the County.
The Village of Rosemont (the Village or Rosemont) is the owner of the Rosemont Horizon, the Rosemont Theatre, the Rosemont Convention Center, and Willow Creek Club (collectively referred to as the Village facilities). The County Amusement Tax Ordinance imposes a duty on the Village to collect and remit monies from patrons of amusements presented at any of its facilities.
On January 8, 1997, the Village of Rosemont, pursuant to its home rule power, enacted Village Ordinance 97-1-8. The Village ordinance exempted "persons attending or participating in an amusement at a Village facility" from paying the county tax and prohibited the County from collecting the tax from any person as a result of attending or participating in an amusement at a Village facility. In addition, the Village said it would not act as the County's tax collector. The ordinance prohibited Village officers and employees from collecting the tax.
On March 12, 1997, Cook County filed a complaint against the Village of Rosemont for Mandamus, Injunction, and other relief. The complaint was amended on April 28, 1997, to add allegations that Village Ordinance 97-1-8 is unconstitutional. Along with the amended complaint, the County filed a petition for preliminary injunction, seeking to have the Village collect the tax while the case was pending.
The circuit court denied the County's petition for preliminary injunction. The court, however, went on to rule the Village's ordinance unconstitutional. The Village appealed and this court reversed the circuit court's order, finding the circuit court had exceeded the scope of the matters before it. See County of Cook v. Village of Rosemont, 293 Ill. App. 3d 713, 688 N.E.2d 1192 (1997).
On remand, the County amended its complaint a third time. In count I of the third amended complaint, the County requested a permanent injunction to enjoin Rosemont and others from refusing to perform the duties imposed by the County's Amusement Tax Ordinance. In count II, the County requested penalties and fees be assessed against Rosemont.
In count III the County alleged Rosemont exceeded the authority granted a home rule unit by Article 7, section 6(a) of the Illinois Constitution of 1970 when it enacted Ordinance 97-1-8. The County said "Ordinance 97-1-8 pertains not to Rosemont's government and affairs but to the County's government and affairs." The County claimed the Village had neither home rule authority nor statutory authority "to exempt itself or its patrons from the taxing authority of the County" and could not "abrogate the County's power to assess and collect its Amusement Tax."
In Count IV, the County alleged Ordinance 97-1-8 was unconstitutional because it had extraterritorial application. The County said:
"The stated purpose of the Rosemont Ordinance is to nullify the County's power to assess and collect tax. As applied to sales made by agents at remote outlets, the effect of Rosemont's Ordinance is to usurp the County's home rule powers outside of Rosemont's municipal boundaries."
The amended complaint added count V, in which the County alleged Rosemont exceeded it home rule powers by enacting another ordinance, Village Ordinance 97-7-2. The County sought to enjoin Rosemont's enforcement of this new ordinance.
Ordinance 97-7-2, which was enacted by the Village on July 2, 1997, was similar to Ordinance 97-1-8. The Village eliminated the language contained in Ordinance 97-1-8 which declared patrons exempt from paying the County amusement tax, but again asserted: (a) the Village of Rosemont shall not collect the County amusement tax; (b) no officer or employee of the Village shall collect the County's amusement tax; and (c) no officer or employee of the Village shall contract with anyone to collect the County's tax on Rosemont's behalf. In making these assertions, the Village relied on the authority of various provisions of the Municipal Code.
The County later moved for partial summary judgment on counts III and IV of its third amended complaint.
On June 9, 1998, the circuit court granted the County's motion for partial summary judgment on both counts. The court agreed Rosemont's Ordinance 97-1-8 was directed at the County's government and affairs, not the Village's. For this reason, the court said, the Village's ...