Rozner v. Korshak

• Decision Date: 25 September 1973
• Docket Number: No. 45689,45689
• Citation: Rozner v. Korshak, 303 N.E.2d 389, 55 Ill.2d 430 (Ill. 1973)
• Parties: Milton ROZNER, Appellant, v. Marshall KORSHAK et al., Appellees.
• Court: Illinois Supreme Court

Page 389

303 N.E.2d 389

55 Ill.2d 430

Milton ROZNER, Appellant, v.Marshall KORSHAK et al., Appellees.

No. 45689.

Supreme Court of Illinois.

Sept. 25, 1973.

Rehearing Denied Nov. 28, 1973.

Herbert C. Goldman, Irwin D. Rozner and Lawrence Walner, Chicago, for appellant.

Richard L. Curry, Corp.Counsel, Chicago (William R. Quinlan, Gayle F. Haglund, and Frank G. Sulewski, Asst. Corp. Counsels, of counsel), for appellees.

SCHAEFER, Justice:

The plaintiff, Milton Rozner, brought this action on his own behalf, and purportedly on behalf of all owners of passenger automobiles used upon the public ways in the City of Chicago, to enjoin the enforcement of the City's wheel-tax ordinance as amended in 1972.The defendants are the City, and city officers involved in the administration of the ordinance.The circuit court of Cook County granted the defendants' motion to dismiss the complaint, and we allowed the plaintiff's motion under Rule 302(b),Ill.Rev.Stat.1971, ch. 110A, § 302(b) to appeal directly to this court(50 Ill.2d R. 302(b)).

Chapter 29 of the Municipal Code of Chicago is entitled 'Wheel Tax Licenses.'Section 29--2 makes it unlawful for any motor vehicle owner residing within the city to use the vehicle upon the public ways of the city unless it is licensed as provided in the ordinance.Prior to 1972, section 29--5 divided passenger automobiles into two classes according to their horsepower and fixed the fees accordingly, and section 29--12 provided that all revenues derived from the license fees be used to pay the cost of street and alley improvement, repair, and maintenance.By the 1972amendment passenger automobile were divided into three categories instead of two, and the fees were increased.The purposes for which the revenue was to be used were also broadened to include traffic-law enforcement, automobile emission control testing, and such other uses as should be authorized by the city council.

The plaintiff's primary contention is that the amended ordinance is invalid because the increased fees and broadened uses of the revenues collected were not authorized by the General Assembly.He asserts that the City's status as a home-rule municipality is immaterial because the amended ordinance must be regarded as a 'license for revenue,' which, under the 1970constitution, cannot be imposed by a home-rule municipality without specific legislative authority.And in any event, he contends, even if the amended ordinance could be regarded as a proper exercise of the City's home-rule power, its authority to enact the ordinance was rescinded by legislative amendments to the Motor Vehicle Code.

The relevant provisions of section 6 of article VII of the constitution of 1970, S.H.A., are: Paragraph (a), which provides that any municipality with a population of more than 25,000 is a home-rule unit and that 'except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs';paragraph (e), which states that a home-rule unit shall have only the power that the General Assembly may provide 'to license for revenue,' and paragraph (g), which provides that (with exceptions not here pertinent) the General Assembly, by a three-fifths vote, may deny or limit the power of a home-rule unit to tax.

The plaintiff's argument derived from the limitation upon the power of a home-rule unit 'to license for revenue' is based upon a misunderstanding of the meaning of that phrase.The power to regulate and the power to tax are distinct powers, but each may be exercised by the imposition of a license fee.(Arends v. Police Pension Fund of Peoria(1955), 7 Ill.2d 250, 253, 130 N.E.2d 517;Lamere v. City of Chicago(1945), 391 Ill. 552, 558--559, 63 N.E.2d 863.)The phrase 'to license for revenue' describes those situations in which a government unit that did not have the power to tax attempted to raise revenue by the exercise of its police power.(SeeCity of Chicago Heights v. Western Union Telegraph Co.(1950), 406 Ill. 428, 433--434, 94 N.E.2d 306;Lamere v. City of Chicago(1945), 391 Ill. 552, 558--559, 63 N.E.2d 863.)Section 6(e) of article VII expresses a continuation of the general prohibition against such a use of the police power to produce revenue.See Report of the Local Government Committee, 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1673--75.

In the present case the City of Chicago has not attempted to tax under the guise of its power to regulate.Its 'Wheel Tax License' ordinance is frankly a taxing measure (City of Chicago v. Hastings Express Co.(1938),369 Ill. 610, 615--616, 17 N.E.2d 576;Ayres v. City of Chicago(1909), 239 Ill. 237, 246--247, 87 N.E. 1073), and is within the power of the City under section 6(a) of article VII.Unless, therefore, the power to enact such a tax was limited by the General Assembly under section 6(g) of article VII, the amended ordinance is a proper exercise of the City's home-rule power to tax.

We are thus brought to the contention that the General Assembly has limited the power of home-rule units to enact wheel-tax ordinances.The plaintiff asserts that the City's ordinance as amended in 1972 is invalid because the 'General Assembly by a law approved by the vote of three-fifths of the members elected to each house' has denied to home-rule units the power to enact 'wheel tax ordinances' which deviate from the authority granted by the General Assembly.Prior to the adoption of the constitution of 1970 with its grant of home-rule powers, the General Assembly had for many years authorized municipalities to impose vehicle taxes or license fees in specified amounts.(See, e.g., Ill.Rev.Stat.1971, ch. 24, par. 8--11--4.)The use which could be made of the funds collected from such taxes was also specified in that section.And for many years section 2--121 of the Illinois Vehicle Code, and its predecessors, had provided that the owner of a motor vehicle who had obtained a State vehicle license should not be required, by any municipality other than the one in which he resides, to pay a tax or license fee for the use of his vehicle.(See, e.g., IllRev.Stat.1963, ch. 95 1/2, par. 32a;Ill.Rev.Stat.1971, ch. 95 1/2, par. 2--121.)The limitations contained in these sections were, of course, superseded with respect to home-rule units by the adoption of the contitution of 1970.

It is the contention of the plaintiff, however, that the pre-existing legislative limitations were reinstated by an amendment to section 11--211 of the Vehicle Code, which was approved by the vote of three fifths of the members of each house, and became a law after the effective date of the constitution of 1970.

The changes in section 11--211 which the plaintiff contends that the effect of withdrawing the power granted to home-rule units by the 1970constitution are shown, with the added material italicized and the deleted material bracketed and stricken.

'No owner [ADDED: of a motor vehicle] shall be limited as to...