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Silver Fox Limousine v. City of Chicago

June 09, 1999

SILVER FOX LIMOUSINE, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED; PEORIA-ROCKFORD BUS COMPANY, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED; SAM VAN GALDER, INC., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED; AND ADVANTAGE LIMOUSINE, INC., ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 96 L 50130 Honorable Alexander P. White, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

Plaintiffs provide ground transportation to and from the City of Chicago's airports, among other destinations. They sued the city, seeking a declaration that vehicles carrying passengers to and from the airports are exempt from the city's ground transportation tax and seeking to enjoin the city from collecting the tax. The trial court dismissed plaintiffs' first amended complaint for failure to exhaust administrative remedies and for failure to state a cause of action. Plaintiffs' subsequent motions to reconsider and for leave to file a second amended complaint were also denied. We affirm.

Plaintiffs appeal both the dismissal of their first amended complaint and the denial of leave to file a second amended complaint. Both complaints are part of the record. We note that to preserve review of a complaint, a plaintiff must stand on the dismissed complaint and appeal before filing an amended complaint. Boatmen's National Bank v. Direct Lines, 167 Ill. 2d 88, 99, 656 N.E.2d 1101 (1995); DuPage Aviation Corp., Flight Services, Inc. v. DuPage Airport Authority, 229 Ill. App. 3d 793, 800, 594 N.E.2d 1334 (1992). But the loss of the right of review of an earlier complaint is triggered by the filing of an amended complaint. Here, plaintiff was denied leave to file a second amended complaint. Under these circumstances, both complaints are properly before us. The question in this case is academic. The second amended complaint incorporates all the issues raised in the first. Only issues not preserved are deemed abandoned. Boatman's National Bank, 167 Ill. 2d at 99.

In considering whether a trial court abused its discretion in denying leave to file an amended complaint, we must decide if: (1) the proposed amendment would cure the defective pleading; (2) other parties would be prejudiced by the amendment; (3) the amendment is timely; and (4) there were earlier opportunities to amend. See Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273, 586 N.E.2d 1211 (1992). The trial Judge relied on the failure to cure the defect, pointing out that plaintiffs' factual allegations did not impact on the controlling issue in the case: whether plaintiffs established that they need not exhaust their administrative remedies.

Plaintiffs argue on appeal that their cause of action falls within two exceptions to the general rule requiring exhaustion of remedies. First, they argue that the city's ground transportation tax falls within an exception recognized by our supreme court in Owens-Illinois Glass Co. v. McKibben, 385 Ill. 245, 256, 52 N.E.2d 177 (1943), for taxes unauthorized by law or levied against exempt property. Second, they argue that the city ordinance governing administrative review of revenue cases leaves them without an adequate remedy at law. Plaintiffs also argue that the court erred in refusing to allow them to file the second amended complaint, adding facts to correct possible deficiencies in the first amended complaint. But, as noted earlier, it is the denial of leave to file the second amended complaint that we address.

Chicago's ground transportation tax is imposed on those who offer ground transportation vehicles for hire in the city. The tax is a fixed charge per day on each vehicle used to transport a passenger for hire in the city. Chicago Municipal Code §3-46-030(A) (amended July 30, 1997) (the Code). Before 1996, the ordinance made no exception for vehicles used in the transportation of passengers in interstate commerce. The ordinance requires all providers subject to the tax to file a monthly tax return with payment. Chicago Municipal Code §3-46-040 (amended March 26, 1996).

In 1995, congress passed the Interstate Commerce Commission Termination Act (the Act), which reads, in relevant part:

"A State or political subdivision thereof may not collect or levy a tax, fee, head charge, or other charge on --"

"(1) a passenger traveling in interstate commerce by motor carrier;"

"(2) the transportation of a passenger traveling in interstate commerce by motor carrier;"

"(3) the sale of passenger transportation in interstate commerce by motor carrier; or"

"(4) the gross receipts derived from such transportation." 49 U.S.C. §14505 (Supp. January 1, 1996).

The Act became effective on January 1, 1996.

On March 26, 1996, the city's ground transportation tax ordinance was amended to add the following exemption:

"Notwithstanding any other provision of this chapter, the following uses of a ground transportation vehicle do not subject the license holder of the vehicle to the tax imposed by this chapter:"

" ***B. The use of a ground transportation vehicle that may not be taxed pursuant to the ICC Termination Act of 1995, Pub. L. No. 104-88, §14505, 109 Stat. 803, 904[.]" Chicago Municipal Code §3-46-060(B) (amended March 26, 1996).

Plaintiffs allege that they are being improperly taxed for trips to and from the city's airports that are "transportation of a passenger traveling in interstate commerce by motor carrier." Plaintiffs operate in Illinois and Indiana, offering ground transportation to passengers traveling to ...


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