County Collector of Kane County, Application of, 59568

• Citation: 527 N.E.2d 141,172 Ill.App.3d 897,122 Ill.Dec. 769
• Decision Date: 01 August 1988
• Docket Number: No. 2-87-0931,No. 59568,59568,2-87-0931
• Parties: , 122 Ill.Dec. 769 In re Application of the COUNTY COLLECTOR OF KANE COUNTY for Judgment for Delinquent Taxes for the Year 1985 (The People ex rel. Robert Critton, Kane County Collector, Applicant-Appellee and The City of Aurora, Intervenor-Appellee, v. American National Bank and Trust Company as Trustee under Trust, et al., Objectors-Appellants).
• Court: United States Appellate Court of Illinois

Page 141

527 N.E.2d 141

172 Ill.App.3d 897, 122 Ill.Dec. 769

In re Application of the COUNTY COLLECTOR OF KANE COUNTY for Judgment for Delinquent Taxes for the Year 1985 (The People ex rel. Robert Critton, Kane County Collector Applicant-Appellee and The City of Aurora Intervenor-Appellee, v. American National Bank and Trust Company as Trustee under Trust No. 59568, et al Objectors-Appellants).

No. 2-87-0931.

Appellate Court of Illinois Second District.

Aug. 1, 1988.

Paul A. Lewis, argued, Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., Aurora, for American Nat. Bank & Trust.

Michael Weinstein, City Atty., City of Aurora, Law Dept., Ronald R. Moses, Corp. Counsel, City of Aurora, Robert F. Casey, Kane County State's Atty., for City of Aurora.

Patricia Johnson Lord, State's Attys. Office Civil Div., Geneva, for Robert Critton.

Justice NASH delivered the opinion of the court:

Certain tax objectors appeal from an order of the circuit court which overruled their objections to entry of judgment against them for delinquent real estate taxes for 1985. Objectors challenged the extension of the tax levy of the city of Aurora against their property on the ground that at the time the levy ordinance was passed by the city, no appropriation ordinance was in force and effective, and the levy was thus invalid.

The objectors contend on appeal (1) that the levy ordinance was void as to them for failure of the city to comply with the time periods for publication of ordinances prescribed by section 2-28 of the Aurora Code of Ordinances (Aurora, Ill., Code of Ordinances § 2-28) and by section 1-2-4 of the Illinois Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 1-2-4) as the city failed to publish its appropriation ordinance at least 10 days prior to passing the levy ordinance; and (2) that the subsequent act adopted by the General Assembly, which purports to validate Aurora's 1985 tax levy, did not do so.

The City of Aurora responds that by adopting its 1985 appropriation ordinance as a home rule unit, the city repealed and effectively removed the ordinance publication requirements of section 2-28 of Aurora's Code of Ordinances, which had been enacted prior to the adoption of the Illinois Constitution of 1970. The city 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, and that the apparent limitations on home rule powers found in section 10 of "An Act to revise the law in relation to notices" (Notices Act) (Ill.Rev.Stat.1985, ch. 100, par. 8.2) were improperly passed by the General Assembly and, thus, do not act to require a home rule unit to follow the publication provisions contained in the Municipal Code. The city further argues that any defect in the adoption of its 1985 levy ordinance was cured with the passage of Public Act 85-855 (1987 Ill.Laws 3554) by the General Assembly and its approval by the Governor.

The objectors each paid their 1985 real estate taxes under protest and filed 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 for 1985 to present its own case, and a stipulation of fact was entered, as follows: that Aurora was 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 and section 10 of the Notices Act (Ill.Rev.Stat.1985, ch. 100, par. 8.2) were both in full force and effect at the time the appropriation and levy ordinances were adopted.

We note, too, that the parties do not dispute that before a city 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. People ex rel. Larson v. Thompson (1941), 377 Ill. 104, 109, 35 N.E.2d 355; City of Rockford v. Gill (1979), 75 Ill.2d 334, 343, 26 Ill.Dec. 669, 388 N.E.2d 384; In re Application of County Collector (1974), 21 Ill.App.3d 120, 314 N.E.2d 227 (abstract of opinion).

Section 2-28 of the Aurora Code of Ordinances was enacted by its city council at a time prior to the city attaining home rule unit status and was in force at the time of the passage of the appropriation and levy ordinances in issue. It provides, as relevant:

"All ordinances of the city * * * making any appropriation, shall (1) be printed in book or pamphlet form, published by authority of the corporate authorities, or (2) be published at least once, within ten (10) days after passage, in one or more newspapers published in the city. No such ordinance shall take effect until ten (10) days after it is so published [with specific exceptions not applicable here]." (Emphasis added.) (Aurora, Ill., Code of Ordinances § 2-28.)

The Aurora ordinance closely tracks the language of the Illinois Municipal Code relating to publication of an appropriation ordinance:

"All ordinances of cities, villages and incorporated towns * * * making any appropriation, shall (1) be printed or published in book or pamphlet form, published by authority of the corporate authorities, or (2) be published at least once, within 30 days after passage, in one or more newspapers published in the municipality, or if no newspaper is published therein, then in one or more newspapers with a general circulation within the municipality. * * * No such ordinance shall take effect until 10 days after it is so published [with exceptions not applicable here]." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 24, par. 1-2-4.)

Section 10 of the Notices Act purports to make applicable to both home rule and non-home-rule municipalities those State statutes which require notice to be published, as follows:

"Sec. 10. Laws which require notice to be published or posted by a municipality * * * shall apply to municipalities * * * which are home rule units as well as municipalities * * * which are not home rule units. Any home rule unit may enact an ordinance prescribing more stringent requirements binding upon itself which would serve to give further notice to the public." Ill.Rev.Stat.1985, ch. 100, par. 8.2 (Pub.Act 78-458, eff. Oct. 1, 1973).

After considering the arguments of the parties, the trial court 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), article VII, of the Illinois Constitution of 1970, but to 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), article VII, of the Constitution. The court also 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, and the levy ordinance was therefore valid. The application for judgment for delinquent taxes for 1985 by the county collector of Kane County was granted, and the objectors appeal.

The parties urge upon us a number of constitutional issues; however, a reviewing court will decide a constitutional question only where it is essential to disposition of the case. (Bender v. City of Chicago (1974), 58 Ill.2d 284, 287, 319 N.E.2d 34; Village of Schaumburg v. Franberg (1981), 99 Ill.App.3d 1, 9, 54 Ill.Dec. 336, 424 N.E.2d 1239; City of Chicago v. Abdullah (1979), 76 Ill.App.3d 325, 328, 32 Ill.Dec. 103, 395 N.E.2d 50.) Those issues need not be reached here as we find that the tax objections should be sustained for failure of the City of Aurora to comply with the notice and publication requirements of section 2-28 of its own code of ordinances, resulting in a levy for taxes which is invalid as to the objectors.

As earlier noted, section 2-28 of the Aurora code provides that any ordinance making an appropriation shall be published, in printed or pamphlet form or in a newspaper, and shall not take effect until 10 days after publication. The appropriation ordinance in question was passed and approved by the city council on March 26, 1985, and its section 5 provided, as follows:

"That this ordinance shall be in full force and effect from and after its final passage, approval, recording and publication and lapse of time prescribed by law." (Emphasis added.) (Aurora, Ill., Code of Ordinances § 5.)

Despite this directive contained in the appropriation ordinance, it was neither published, nor was any lapse of time observed by the city council, which proceeded in the same meeting to pass its levy ordinance.

The city argues that section 5 of the ordinance is not applicable because it also refers to a "recording," which is not required for an appropriation ordinance. The city characterizes section 5 as merely a standard format section used in adopting its ordinances. The city also asserts that the publication and lapse of time language of section 5 is a reference to requirements applicable only to its former status as a non-home-rule municipality, and as surplusage should be disregarded. We do not agree.

Even if the city was correct in its assumption that the publication requirements of its own ordinance, and that contained in section 1-2-4 of the Illinois Municipal Code, may be disregarded by the city, and we do not so hold, in our view it imposed such publication and time lapse requirements upon itself in the appropriation ordinance and may not avoid it. The clear language of its section 5 is that the ordinance would not become effective until after it has been published and the time prescribed by law has elapsed. Whether the city was bound by section 5...