County Collector of Kane County, Application of

• Decision Date: 27 September 1989
• Docket Number: No. 67627,67627
• Citation: 547 N.E.2d 107,132 Ill.2d 64,138 Ill.Dec. 138
• Court: Illinois Supreme Court
• Parties: , 138 Ill.Dec. 138 In re Application of the COUNTY COLLECTOR OF KANE COUNTY (The People ex rel. Robert Critton, Kane County Collector, et al., Appellants, v. American National Bank and Trust Company, as Trustee, et al., Appellees).

Page 107

547 N.E.2d 107

132 Ill.2d 64, 138 Ill.Dec. 138

In re Application of the COUNTY COLLECTOR OF KANE COUNTY (The People ex rel. Robert Critton, Kane County Collector, et al., Appellants, v. American National Bank and Trust Company, as Trustee, et al., Appellees).

No. 67627.

Supreme Court of Illinois.

Sept. 27, 1989.

Rehearing Denied Dec. 4, 1989.

Ronald R. Moses, Corp. Counsel, Michael B. Weinstein, City Atty., Aurora, for appellant City of Aurora.

Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., Aurora (Paul A. Lewis, of counsel), for appellees.

Judson H. Miner, Corp. Counsel, Chicago (Ruth M. Moscovitch and Mary L. Mikva, of counsel), for amicus curiae City of Chicago.

Justice RYAN delivered the opinion of the court:

Certain owners of real property located in Kane County within the corporate limits of the City of Aurora filed objections to the application for judgment based on their delinquent 1985 real estate taxes. They alleged that the tax levy of the city against their property was invalid because the city failed to publish an appropriation ordinance at least 10 days prior to passage of the tax levy ordinance. On stipulated facts, the trial court overruled their objections and granted the county collector's application for judgment. The appellate court reversed (172 Ill.App.3d 897, 122 Ill.Dec. 769, 527 N.E.2d 141), and we granted leave to appeal (107 Ill.2d R. 315).

The objectors each paid their 1985 real estate taxes under protest and filed timely objections to the city levy. The City of Aurora was permitted to intervene in the application of the county collector for judgment for delinquent taxes and present its own case. The facts, stipulated at trial, are as follows: that Aurora is a home rule municipality and had passed both its appropriation and levy ordinance for the 1985 tax year at a meeting of its city council held on March 26, 1985; that no addition, modification, refiling, amendment or substitute for either ordinance was thereafter enacted or filed by the city; and that section 2-28 of the Aurora Code of Ordinances (Aurora, Ill., Code of Ordinances § 2-28) and section 10 of the publication of notices act (Ill.Rev.Stat.1985, ch. 100, par. 8.2) (Notices Act) were both in full force and effect at the time the appropriation and levy ordinances were adopted.

Objectors claim that a valid appropriation ordinance must be in effect at the time a tax levy ordinance is passed. They contend that the levy ordinance for 1985 was invalid because before its passage the city failed to comply with the time periods for publication of the appropriation ordinance prescribed in Aurora's ordinance section 2-28 (Aurora, Ill., Code of Ordinances § 2-28) and in section 1-2-4 of the Illinois Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 1-2-4). Both of these provisions require publication of the appropriation ordinance and a passage of 10 days before it will take effect.

The City of Aurora first argues that it no longer is required to pass a valid appropriation ordinance prior to passage of its tax levy ordinance. It next contends that section 2-28 of the city ordinance was passed prior to Aurora's becoming a home rule unit and that it is not applicable because the 1985 appropriation ordinance was passed pursuant to Aurora's home rule powers and the city thereby repealed and effectively removed the publication requirements of the pre-home-rule ordinance. It also asserts that, under its home rule powers, it need not follow the publication requirements of section 1-2-4 of the Illinois Municipal Code. In the alternative, the city argues that the apparent limitations on home rule powers found in section 10 of the Notices Act (Ill.Rev.Stat.1985, ch. 100, par. 8.2) were not constitutionally passed by the General Assembly and, thus, do not act to require a home rule unit to follow the publication provisions contained in the Illinois Municipal Code. Finally, it argues that the passage and approval of Public Act 85-855 cure any defect which might have existed in passage of the levy ordinance.

The trial court found that by exercising its power as a home rule unit of government in passing its 1985 appropriation ordinance, the city superseded the publication requirements of section 2-28 of the Aurora Code of Ordinances (Aurora, Ill., Code of Ordinances § 2-28). The court also found that section 10 of the Notices Act (Ill.Rev.Stat.1985, ch. 100, par. 8.2) was passed by the General Assembly pursuant to section 6(i) of article VII of the Illinois Constitution of 1970 (Ill.Const.1970, art. VII, § 6(i)), but to properly limit and bind a home rule unit to the notice and publication requirements of section 1-2-4 of the Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 1-2-4), section 10 should have been passed pursuant to section 6(g) of article VII of the constitution (Ill.Const.1970, art. VII, § 6(g)). The 1985 tax levy ordinance was therefore declared to be valid and the county collector's application for judgment for delinquent taxes for 1985 was granted.

The appellate court reversed, holding that the city failed to comply with its own publication requirement which the appropriation ordinance expressly imposed and, therefore, the tax levy was invalid as to the objectors. Additionally, the appellate court held that Public Act 85-855 constitutes an ineffective attempt to validate the challenged tax levy. 172 Ill.App.3d 897, 122 Ill.Dec. 769, 527 N.E.2d 141.

The first issue we must address is whether the City of Aurora tax levy for the year 1985 was void because of a failure to publish the appropriation ordinance at least 10 days prior to passage of the tax levy ordinance. This court has held that before a municipality may validly pass an ordinance levying taxes it must have first passed an appropriation ordinance which is in full force and effect at the time of the adoption of the levy ordinance, and that to be in full force and effect there must be publication of the appropriation ordinance followed by a lapse of the specified period of time. (People ex rel. Larson v. Thompson (1941), 377 Ill. 104, 109, 35 N.E.2d 355; People ex rel. Montgomery v. Wabash Ry. Co. (1935), 360 Ill. 173, 176, 195 N.E. 665; People ex rel. Sullivan v. Florville (1903) 207 Ill. 79, 86-87, 69 N.E. 623; People ex rel. Fuller v. Peoria, Decatur & Evansville R.R. Co. (1886), 116 Ill. 410, 414-15, 6 N.E. 459.) The City of Aurora did first pass an appropriation ordinance but this was done on the same day it passed its levy ordinance.

Aurora and amicus curiae, the City of Chicago, argue that the procedure followed was valid and that the above-cited cases are not applicable. They contend that a municipality no longer is required to have an appropriation ordinance "in effect" when the tax levy is passed because of changes in pre-home-rule statutory requirements.

In Sullivan, the statute then in effect required the city council to determine in its tax levy ordinance "the total amount of appropriations * * *legally made and to be collected from the tax levy." (Emphasis in original.) (Sullivan, 207 Ill. at 84, 69 N.E. 623.) The court reasoned that an appropriation, to be "legally made," must be in effect as of the passage of the levy. The appropriation ordinance at issue in Sullivan was not published at least 10 days before passage of the levy, as the statute required. The court, therefore, held it was not effective at the time the levy was passed and the levy was thus not based on "appropriations legally made." This reasoning was applied in the Fuller, Montgomery and Larson cases. Aurora and amicus argue that the statute in effect in 1985 did not require that the levy be based on appropriations "legally made." Instead, since 1971 the statute has provided, in applicable part, that "the corporate authorities shall ascertain the total amount of appropriations legally made or budgeted for and any amount deemed necessary to defray additional expenses and liabilities for all corporate purposes." (Emphasis added.) (Ill.Rev.Stat.1971, ch. 24, par. 8-3-1.) They then contend that "even if the Aurora appropriation ordinance for 1985 could not be said to constitute 'appropriation legally made' at the passage of the levy ordinance, the amounts included in the appropriation ordinance were certainly 'budgeted for' " and that "given the change in the applicable statutory language, no statute required an appropriation ordinance to be in effect at the time of the Aurora levy."

Regardless of the construction that may logically be urged as to the language of the present statutes, we are faced with the fact that the ordinances of the City of Aurora involved in this litigation contain specific language which does not admit of the application of the statutory construction for which the city contends.

Our analysis must be based on the ordinances which we have before us, and we do not believe that the arguments concerning the statutes are persuasive in light of the language of the ordinances actually adopted by Aurora. In the tax levy ordinance which the city adopted in 1985, it is stated in sections 1 and 2 that it is based on "the total amount of appropriation heretofore legally made." (Emphasis added.) It does not state that it is based on the amount of appropriations "budgeted for." In section 3 of the tax levy ordinance it declares that, pursuant to the city's home rule powers, any Municipal Code provision in conflict with the ordinance will not be applicable. Thus, having imposed the requirement that the appropriation be "heretofore legally made," not merely budgeted for, we believe that the cases cited above are applicable and the Illinois Municipal Code provision at variance with those cases is superseded by the levy ordinance itself. Therefore, under the principles announced in Sullivan, Fuller, Montgomery and Larson, and the language of the levy ordinance, Aurora was required to have an appropriation ordinance in effect at the time the tax levy...