Certain Taxpayers v. Sheahen

• Decision Date: 24 March 1970
• Docket Number: No. 42171,42171
• Citation: 256 N.E.2d 758,45 Ill.2d 75
• Parties: CERTAIN TAXPAYERS, Appellants, v. Raymond J. SHEAHEN, County Collector, et al., Appellees.
• Court: Illinois Supreme Court

Page 758

256 N.E.2d 758

45 Ill.2d 75

CERTAIN TAXPAYERS, Appellants, v. Raymond J. SHEAHEN, County Collector, et al., Appellees.

No. 42171.

Supreme Court of Illinois.

March 24, 1970.

Burke Williamson, Chicago, and Edward R. Holmberg, Jr., Waukegan (Adams, Williamson & Turney, Chicago, and Hall, Meyer, Fisher, VanDeusen, Holmberg & Snook, Waukegan, of counsel), for appellants.

Thomas H. Compare, City Atty., Lake Forest, and James A. Velde, Chicago (Gardner, Carton, Douglas, Children & Waud, Chicago, of counsel), for appellees.

BURT, Justice.

The county treasurer and collector of Lake County filed petition for judgment in the circuit court fixing the correct amount of taxes paid under protest for the year 1961. The taxpayers involved in this appeal had paid their taxes in full under protest and filed an objection in which they contended that the general corporate fund levy of the city of Lake Forest extended at the rate of .650 was excessive by the amount by which it exceeded .373 or .277. The objectors alleged that the statutory rate for the corporate fund as provided in the Municipal Code of 1961 (Ill.Rev.Stat.1961, ch. 24, par. 8--3--7) is 1%, but that this rate must be further reduced because of the provisions of sections 162a and 162b of the Revenue Act to .373. (Ill.Rev.Stat.1961, ch. 120, par. 643a, 643b.) At the hearing a stipulation incorporating many exhibits and the testimony of witnesses were received in evidence. The court held that the tax rate for the city's corporate fund is not subject to a statutory rate limit as provided by general statutes or to the formula rates under the provisions of sections 162a and 162b of the Revenue Act. Accordingly an order was entered overruling the objection, from which the taxpayers appeal. Since the revenue is involved, this court has jurisdiction on direct appeal under Rule 302(a)(1) Ill.Rev.Stat. c. 110A, § 302(a)(1), 43 Ill.2d Rule 302.

The city contends that since it is a municipality incorporated under a special act the rate at which it may levy and collect taxes for general purposes is governed by the provisions of the first paragraph of section 8--3--7 of the Municipal Code of 1961, which provides that such municipalities have the power to levy and collect at '(1) the rate specified in or allowed under its special act, or (2) a rate which will not exceed one per cent' of the assessed valuation of taxable property; that the rate 'allowed under' Lake Forest's special act refers to its 1869 special charter which authorizes the levying of taxes to defray the municipal expenses without specifying any rate limit; that the rate 'allowed under' the special act is whatever is necessary to defray the city's expenses and that the rate authorized by section 8--3--7 is therefore higher than one per cent and has no specific limit.

As to the alleged applicability of the provisions of the Revenue Act, it is Lake Forest's position that since section 162b provided in exemption clause (b) that it was inapplicable to limit the levies of taxing districts 'which are not subject to limitation in the specific statutes applicable to them' (Ill.Rev.Stat.1961, ch. 120, par. 643b), the express exemption applies to the city's corporate fund levy because it was not subject to limitation under section 8--3--7 of the Municipal Code or its special charter and therefore no limitation is imposed by formula under the Revenue Act.

The objecting taxpayers contend that the terms of the special charter of 1869 limit the levy which the city was authorized to make for its corporate fund, in which connection they say that the rate limit specified in an earlier 1861 charter remained in effect notwithstanding a provision in the 1869 act repealing the earlier legislation. They also urge that by legislation enacted since 1869, including the so-called Butler Bills (Ill.Rev.Stat.1947, ch. 120, pars. 643a and 643b), a statutory rate limit has been set for the general corporate fund of the city which supersedes any provisions of the special charter in that respect and makes the corporate levy subject to the rate formula provisions of the applicable sections of the Revenue Act. In the trial court objectors seriously contended that by levying for special purposes such as schools, garbage collection, library, pension funds, Etc. under statutes other than the 1869 special act the city had elected to subject its levy for general purposes to the specific rate limits found in general statutes and waived any right to tax under the special charter provisions. Much of the voluminous record in this case was produced as a result of urging that argument. Objectors have failed to raise that question in this court and it is therefore waived. Rule 341(e)(7), 43 Ill.2d Rule 341(e)(7); Berk v. Will County, 34 Ill.2d 588, 594, 218 N.E.2d 98.

We shall first consider the provisions of the special charters. The first act incorporating the city of Lake Forest was passed in 1861. The pertinent language relative to the levy and collection of taxes is found in article 5: 'The city council shall have power and authority to levy and collect taxes upon all property, real and personal, within the limits of said city, except upon the parks and public grounds laid out within the bounds of said city, for educational purposes, including University, academy and May Flower Parks, not exceeding one per cent, per annum upon the assessed value thereof; and may enforce the payment of the same in any manner to be provided by ordinance, not repugnant to the constitution of the United States of of this state.' (Private Laws of 1861, pps. 208--9.) In 1869 the legislature passed an act entitled 'An Act to amend an act entitled 'An Act to incorporate the city of Lake Forest', approved Feb. 21, 1861.' (Private Laws of 1869, vol. 2, p. 14 Et seq.) Article VII of the act, entitled 'Of Taxation', provides that 'The city council shall have power, within the city, by ordinance--First.--To levy and collect, annually, taxes on the assessed value of all real and personal estate and property within the city, and all personal property of the inhabitants thereof made taxable by the laws of the state for state purposes, to defray the general, special and contingent expenses of the city and all other appropriations not otherwise provided for.' Section 3 of article IX dealing with collection of taxes and assessments provides: 'When the assessment lists have been corrected and revised the same shall be filed, and an order confirming the same, and directing the warrant to be issued for the collection thereof, shall be entered by the clerk. The city council shall thereupon, by an ordinance or resolution, levy such sum or sums of money as may be sufficient for the several purposes for which taxes are herein authorized to be levied, not exceeding the authorized percentage.' Section 27 of article XI of the act of 1869 provides: 'The present act of incorporation of said city, approved Feb. 21, 1861, shall be, and the same is hereby repealed.'

It should be observed at the outset that the power to tax found in article VII of the 1869 special act is comprehensive and extensive, being limited only by such amount as may be necessary to defray the city's expenses. It imposes no specific rate limit on the power nor is such a limit to be found anywhere else in the statute. This court has held that, absent such a limiting provision, the grant of power to tax in a special charter will not be circumscribed by imposing a limit where none exists. (People ex. rel. Town of Cicero v. Knopf, 186 Ill. 457, 57 N.E. 1059; Town of Cicero v. McCarthy, 172 Ill. 279, 50 N.E. 116.) In McCarthy the town had made a levy of three per cent in 1896. An 1877 statute provided that special charter towns must levy taxes 'in the manner' provided by article 8 of the Cities and Villages Act. (Laws of 1877, p. 61.) By an 1879 amendment article 8 imposed a two-per-cent limit on the rate for corporate purposes. (Laws of 1879, p. 66.) This court decided that the 1877 act related only to the manner of collecting taxes and not the rate. After noting that the special charter of Cicero contained no limitation in itself as to the amount of taxes which might be levied and collected, it was held that the 1879 amendment could not be construed to incorporate in the special charter a limitation where none existed before. (Town of Cicero v. McCarthy, 172 Ill 279, 281, 50 N.E. 188.) The situation in the Knopf case involved an 1897 amendment to the 1877 statute which provided that all municipalities in the State, whether organized under general law or special charter 'shall assess and collect their taxes in the manner, and have power to assess and collect them at the rate provided for in article 8 of the act entitled 'An Act to provide for the incorporation of cities and villages,' approved April 10, 1872, and in the manner provided for in the general revenue law of this State; and all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.' (Laws of 1897, p. 93.) This court held that although the rate provided in article 8 was two per cent, the act in question did not say that special charter municipalities had the power to assess only at that rate; that while it operated to allow special charter municipalities with rates below two per cent to increase their rates to that amount, it did not affect the tax rate of a municipality such as Cicero which had no rate limit in its charter. We conclude therefore that if any limitation of rate is to be ascribed to Lake Forest's special charter it must exist in spite of the complete lack of a specific rate limitation, and that under the above authorities this court should not impose a limit unless the legislature clearly intended to prescribe it.

The objectors argue that the original one-per-cent limitation found in the 1861 charter is still in effect. The difficulty with this position is that the 1869 act specifically repealed the...