Anderson, Application of, 2-89-0302
| Decision Date | 23 February 1990 |
| Docket Number | No. 2-89-0302,2-89-0302 |
| Citation | 551 N.E.2d 406,141 Ill.Dec. 413,194 Ill.App.3d 414 |
| Parties | , 141 Ill.Dec. 413 In re Application of Jack L. ANDERSON, County Treasurer and Ex Officio County Collector of Lake County, for an Order of Judgment and Sale Against Real Estate Delinquent for Nonpayment of General Taxes for the Year 1978 and for Judgment Fixing the Correct Amount of Taxes, Paid Under Protest for the Year 1978 (Jack L. Anderson, Applicant-Appellee, v. Rubloff and Company, Objector-Appellant). |
| Court | United States Appellate Court of Illinois |
Peter J. Nordigian, Lonchar & Nordigian, Waukegan, for Rubloff and co.
Fred L. Foreman, Lake County State's Atty., Helen S. Rozenberg, Chief, Civ. Div., and Monique R. McIntosh, Lake Co. State's Atty. Office, John E. Schultz, Eugene M. Snarski, Conzelman, Schultz, Snarski & Mullen, and Peter F. LoMonaco, Rawles, McKeown & LoMonaco, Waukegan, for Jack L. Anderson.
Rubloff & Company (Objector) objected to certain tax rates to be levied upon its property and to the validity of the 1978 appropriation ordinance of the City of Waukegan (City). The tax objection was filed March 6, 1980, in response to the annual application for judgment of Jack L. Anderson, treasurer and ex officio county collector of Lake County (Collector).
The Objector paid its taxes under protest. The tax-rate objections were settled, but the validity of the appropriation ordinance of the City remained unresolved. Ultimately, the trial court conducted an evidentiary hearing and granted judgment to the Collector in the amount of $27,726.16. The Objector appeals and sets forth five arguments why the appropriation ordinance is invalid: (1) the City failed to enact an appropriation ordinance within the time prescribed by law; (2) the ordinance was not passed over the veto of the mayor; (3) passage of the ordinance was not shown as evidenced by publication in pamphlet form; (4) the appropriation ordinance was not properly passed at a time when the home rule powers were in effect; and (5) the City could not extend the time within which to pass its appropriation ordinance under home rule powers because this would create an extraterritorial effect. We reverse the judgment and remand the cause with directions.
Section 8-2-9 of the Illinois Municipal Code (Code) provides that the appropriation ordinance of a City such as Waukegan be passed within the first quarter of its fiscal year. (Ill.Rev.Stat.1977, ch. 24, par. 8-2-9.) The City council of Waukegan considered its proposed, 1978 appropriation ordinance on July 31, 1978, and defeated the proposed ordinance after numerous attempts to amend it. At the next meeting of the City council on August 7, 1978, the mayor stated that the ordinance of the prior week was dead and Alderman Serdar was proposing another ordinance, using the former one as a draft copy. Alderman Serdar stated that he was presenting a new ordinance which he felt was a compromise. Alderman Hoff called for a point of order, stating that the finance committee did not hold a meeting and it had hoped to come back to the council with a complete recommendation. Alderman Domerchie questioned the plan for action to be taken on the appropriation. After numerous changes in the proposal were made, Alderman Serdar again called for a point of order, pointing out that this was a new ordinance. Corporation counsel advised the council that, although the Code required the appropriation to be passed within the first quarter of the fiscal year, he would recommend that the City exercise its home rule powers to extend the first quarter requirement and he had prepared a necessary insert to accomplish this.
On August 7, a new ordinance purporting to invoke the City's home rule powers was passed incorporating the following pertinent parts:
"Annual Appropriation Bill of the City of Waukegan, Illinois for the fiscal year beginning May 1, 1978 and ending April 30, 1979.
An ordinance making appropriations of sums of money for all the necessary expenditures of the City of Waukegan, Illinois, and for Corporate purposes for the fiscal year beginning May 1, 1978 and ending April 30, 1979.
WHEREAS, the CITY OF WAUKEGAN is a Home Rule Unit by virtue of the provisions of the Constitution of the State of Illinois of 1970; and
WHEREAS, the City, as a Home Rule Unit, may exercise any power and perform any function pertaining to its government and affairs including the power to tax; and
WHEREAS, Section 8-2-9 of the Illinois Municipal Code states that the corporate authorities shall pass an ordinance within the first quarter of each fiscal year, to be termed the annual appropriation ordinance; and
WHEREAS, the Council does hereby determine that it is empowered by the Constitution of 1970 to extend the period of time within which such passage of the appropriation ordinance can occur as a function pertaining to its government and affairs, and further that it is advisable and necessary and for the best interests of the City of Waukegan to extend the period of time within which such passage can occur; and
WHEREAS, the Council does hereby further determine that the aforementioned part of Section 8-2-9 of the Illinois Municipal Code shall not hereafter be applicable to the passage of appropriation ordinances by the City of Waukegan;
BE IT ORDAINED by the City Council of the City of Waukegan, Illinois:
Objector challenged the validity of the appropriation ordinance in the circuit court by filing its tax objection on January 22, 1980. Objector eventually moved for summary judgment, and its motion was denied by an order dated January 30, 1987. The circuit court found in pertinent part:
"2. That the enactment of the subject appropriation ordinance is a matter which pertains to the 'government and affairs' of the City of Waukegan. Article VII, § 6(a) of the Illinois Constitution of 1970;
3. That Ill.Rev.Stat. ch. 24, § 8-2-9, does not prohibit a home rule unit from extending the time by which its appropriation ordinance is to be passed and enacted;
4. That the City of Waukegan was not required to act within the first quarter of their fiscal year in order to extend the time by which the subject appropriation ordinance was to be passed and enacted;
5. That the City of Waukegan specifically extended the time by which its appropriation ordinance could be passed and enacted in a proper and valid exercise of its home rule powers;
6. That pursuant to Ill.Rev.Stat. ch. 24, § 6-4-2 the validity of the subject appropriation ordinance is not affected by virtue of the fact that the signature of the mayor of the City of Waukegan does not appear on said appropriation ordinance; and
7. That pursuant to Ill.Rev.Stat. ch. 24, § 1-2-6, the fact that the subject appropriation ordinance was published in pamphlet form is prima facie evidence of its contents, passage and legal publication.
The Collector then filed his motion for summary judgment. Ultimately, the trial court entered judgment for the Collector in an order dated February 24, 1989. The judgment was based on an evidentiary hearing and on the stipulation of the parties that no evidence other than that considered by the circuit court would be adduced at trial if a trial were held.
The final judgment, in pertinent part, recited the following findings of fact:
"2. That the subject Appropriation Ordinance was passed and approved at a regular meeting of the Waukegan City Council on August 7, 1978, that the Mayor did not orally veto said Ordinance and neither did the Mayor execute a veto in written form.
3. That as the Mayor did not veto said Ordinance, the Ordinance was and is effective despite the absence of the Mayor's signature on said document.
4. That counsel have stipulated that the 1978 Waukegan levy was filed timely, that the Tax Extension Office of the office of the Lake County Clerk extended the subject taxes in a statutorily timely manner and therefor that no Lake County taxpayer suffered prejudice by virtue of the extension of the time by which the City of Waukegan was to file its 1978 Appropriation Ordinance."
The judgment also recited, in pertinent part, the following conclusions of law:
"2. That the enactment of the subject appropriation ordinance is a matter which pertains to the 'government and affairs' of the City of Waukegan. Article VII, § 6(a) of the Illinois Constitution...
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