Nos. 3--96--0552, 3--96--0553 & 3--96--0554
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
EX REL. JOHN J. WEBER, COUNTY ) for the 12th Judicial Circuit
TREASURER AND EX-OFFICIO TAX ) Will County, Illinois
COLLECTOR OF WILL COUNTY, )
)
Plaintiff-Appellee, ) Nos. 92--TX--15464
) 93--TX--15582
v. ) 94--TX--15432
)
COMMONWEALTH EDISON COMPANY, ) Honorable
) William R. Penn
Defendant-Appellant. ) Judge, Presiding
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JUSTICE LYTTON delivered the opinion of the court:
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Commonwealth Edison Company objects to paying real estate
taxes levied by the Reed-Custer Community Unit School District No.
255-U in 1991, 1992 and 1993. The collection of the levies is the
responsibility of the treasurer of Will County, who serves as ex-
officio tax collector. The circuit court found against
Commonwealth Edison and in favor of the district and collector.
Commonwealth Edison appeals. We affirm.
I.
In September 1991, the school district adopted a budget for
fiscal year (FY) 1991-92. In December of 1991, the district
adopted a levy for taxes that were due for 1991, but were to be
paid in 1992. The proceeds from these 1991 taxes were used to
finance expenditures during FY 1992-93. None of the proceeds from
the 1991 levy were used to finance expenditures made during 1991.
The district used a similar chronology for adopting budgets and
imposing levies for the following two years.
Commonwealth Edison filed three tax objections, alleging that
the district's levies in 1991, 1992 and 1993 were void because they
violated section 5/17-1 of the School Code. 105 ILCS 5/17-1 (West
1992). All of the parties filed motions for summary judgment, and
the circuit court entered judgment in favor of the district and the
collector.
II.
A circuit court may properly grant a motion for summary
judgment if the pleadings, depositions and affidavits show that
there is no genuine issue as to any material fact. 735 ILCS 5/2-
1005(c) (West 1994). Where an appeal is taken from a judgment
granting summary judgment, the appellate court reviews the matter
de novo. Onsen v. Commonwealth Edison Co., 261 Ill. App. 3d 271,
272, 642 N.E.2d 1285, ___ (1994).
The burden of establishing facts to support a tax objection is
on the objector. There is a strong presumption in favor of the
taxing authorities' proper exercise of their duties and the
presumption must be overcome by clear and convincing evidence. In
re Application of Rosewell, 159 Ill. 2d 393, 414, 639 N.E.2d 559,
568 (1994). Except to prevent an abuse of discretion, courts will
not interfere with the exercise of sound business judgment on the
part of taxing authorities. Rosewell, 159 Ill. 2d at 402, 639
N.E.2d at 563, citing People ex rel. Schafer v. New York, Chicago
& St. Louis R.R. Co., 353 Ill. 518, 523-24, 187 N.E. 443, ___
(1933).
Thus, abuse of discretion is the proper standard for courts to
apply in reviewing levy ordinances. Rosewell, 159 Ill. 2d at 402,
639 N.E.2d at 563. However, if the challenged levy is void, in the
sense that the taxing body exceeded its lawful authority in
imposing the levy, the courts may sustain taxpayers' objections
without resort to the abuse of discretion standard. This is
because the taxing body lacks discretion to impose an unlawful
levy. Rosewell, 159 Ill. 2d at 400, 639 N.E.2d at 562.
Accordingly, we review this case first to determine if the
levies imposed were void under a de novo standard. Also, since we
find the levies were not void, we will review the levy ordinances
to determine if they were an abuse of the school district's
discretion.
Section 5/17-1 of the School Code provides in pertinent part,
"If the beginning of the fiscal year of a district is subsequent to
the time that the tax levy for such fiscal year shall be made, then
such annual budget shall be adopted prior to the time such tax levy
shall be made." 105 ILCS 5/17-1 (West 1992).
Relying on section 17-1, Commonwealth Edison argues that the
December 1991 levy was void because (a) FY 1992-93 commenced
subsequent to the date that the December, 1991, levy was enacted,
and (b) the 1992-93 budget was not adopted prior to the levy.
Commonwealth Edison makes similar arguments for the levies imposed
in 1992 and 1993. The district responds that the December 1991
levy was not void under section 5/17-1, because (a) the levy was
for taxes due in FY 1991-92, not FY 1992-93, (b) FY 1991-92 began
prior to the enactment of the December 1991 levy, and (c) the FY
1991-92 budget was adopted prior to the December, 1991, levy.
We agree with the rationale of the district, the collector and
the trial court. The validity of a levy is to be determined as of
the time it is made (Rosewell, 159 Ill. 2d at 414-15, 639 N.E.2d at
568).
As to the appropriateness of the levy itself, the budget of a
school district does not limit the amount of the tax levy (People
ex rel. Stanfield v. Pennsylvania R.R. Co., 3 Ill. 2d 524, 530, 121
N.E.2d 748, ___ (1954)). Surpluses are to be expected upon
application of conservative budgeting practices, and no prejudice
to taxpayers results when validly levied taxes are collected and
applied in the following year. Rosewell, 159 Ill. 2d at 406, 639
N.E.2d at 565, citing People ex rel. Schlager v. Jourdan Packing,
389 Ill. 163, 169, 58 N.E.2d 910, ___ (1945).
The language used in section 17-1 explicitly permits cash to
be "on hand" at the end of a fiscal year and, as a logical
extension, for cash to be "on hand" at the beginning of the next
year. 105 ILCS 5/17-1 (West 1992). Section 17-1 requires that
estimates of these assets be included in a school district's
budget. 105 ILCS 5/17-1 (West 1992).
It is not necessary for taxing authorities to wait until the
money is actually needed for paying outstanding obligations before
taxes may be levied, but they have a right to, and should,
anticipate, as nearly as they can, the amount of moneys that should
be raised to meet obligations when they become due. Rosewell, 159
Ill. App. at 402, 639 N.E.2d at 563. Our supreme court has
observed that the inclusion of such an asset in the following
year's budget has the corresponding benefit of reducing the
appropriate levy needed for that year. Rosewell, 159 Ill. 2d at
406, 639 N.E.2d at 565.
Commonwealth Edison has failed to demonstrate that the school
district exceeded its authority or abused its discretion.
III.
The judgment of the circuit court of Will County is affirmed.
Affirmed.
BRESLIN and HOLDRIDGE, JJ., concur.