Anderson v. Rubloff & Co.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s opinion that the appropriation ordinance at issue was not validly enacted and that the City exceeded its home rule powers in passing the extension of time for passage of an appropriation ordinance. The majority opinion has set forth three reasons why the appropriation ordinance was not validly enacted and the City exceeded its home rule powers, and I disagree with the analysis and authority cited for each of these propositions. I would affirm the decision of the circuit court.

Turning to the first point, the majority concludes that because “the City did not yet have the specified home rule power in place on August 7, the attempt to pass the appropriation ordinance on that very same date was invalid.” (194 Ill. App. 3d 420-21.) The majority fails to cite, nor do I find, any authority supporting the necessary premise that the City did not have any home rule power to pass the appropriation ordinance until it invoked such power by way of ordinance. Home rule power derives from article VII, section 6(a), of the Illinois Constitution of 1970, and I find no authority for the proposition that such power is ineffectual absent its prior invocation by ordinance. In fact, in Messina v. City of Chicago (1986), 145 Ill. App. 3d 549, the court held that it is not necessary that a home rule municipality declare that its actions are taken under home rule power for that power to take effect. (145 Ill. App. 3d at 552.) Furthermore, in Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, our supreme court held that a village trustees’ vote not to place a proposition on the ballot constituted an “exercise” of home rule power even absent an ordinance being passed to that effect. (Sommer, 79 Ill. 2d at 392-93.) These two cases strongly suggest that it is not necessary to the exercise of home rule power that such power first be invoked by ordinance. Consequently, the City’s authority under its home rule powers to pass the appropriation ordinance after the statutory time limit existed at the time the appropriation ordinance was passed and did not depend upon its prior invocation by ordinance. It is further clear that the City was exercising its home rule power as this was expressly stated in the appropriation ordinance. The Objector does not dispute that the City is a home rule unit. Although the majority does not discuss the point, I would further conclude that the City validly exercised its home rule powers in extending the date by which its appropriation ordinance was to be passed and enacted.

I further disagree with the majority’s application of In re Application of County Collector of Kane County (1989), 132 Ill. 2d 64, to the facts of this case. (I fail to understand why the majority cites to our appellate court opinion in this case when our supreme court has taken the case and decided the precise issue for which the majority cites the appellate court opinion.) In County Collector of Kane County, the supreme court determined that a home rule municipality cannot pass an appropriation ordinance on the same day as a levy ordinance where the passage and publication of a valid appropriation ordinance is a prerequisite, as set forth in the municipality’s own ordinances, to the passage of a valid levy ordinance. That principle is inapposite to this case. Here, there is simply no requirement, either in the City’s ordinances or otherwise, that an ordinance specifically invoking home rule powers be passed as a prerequisite to the passage of an appropriation ordinance purporting to exercise home rule powers.

As to the majority’s second point, that the City was bound by the notice, hearing and publication requirements in effect on August 7, 1978, as enumerated in the Illinois Municipal Code, I find that argument to be waived. As it was not raised in the trial court, it cannot now be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Furthermore, this is the type of case where the waiver rule has particular applicability, as the City was not given the opportunity below to present evidence that it did in fact comply with the notice, hearing and publication requirements.

Finally, I disagree with the majority’s conclusion that the appropriation ordinance has an “impermissible, extraterritorial effect.” (194 Ill. App. 3d 422.) In this regard, I believe the majority’s reliance on Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, is clearly misplaced. In that case, our supreme court stated that unrestrained extraterritorial exercise of powers in zoning, taxation or other areas could create serious problems. (89 Ill. 2d at 78-79.) Although the supreme court did use the terminology “extraterritorial effect,” it did so in characterizing the scope of the taxing ordinance at issue rather than using the term “effect,” as used by the majority here, to mean the impact that the ordinance might have outside of the corporate boundaries. Such a broad interpretation of Commercial National Bank would lead to absurd results, as it is possible in many cases to identify some extraterritorial effect resulting from passage of zoning, taxation or other ordinances. Furthermore, Commercial National Bank concerned the imposition by a municipality of a tax on services performed outside its corporate boundaries, an issue clearly not present here.

Even were I to interpret language in Commercial National Bank to be applicable to the present situation, I would still disagree with the majority opinion. The parties stipulated that the 1978 Waukegan levy was timely filed, that the tax extension office of the Lake County clerk extended the taxes in a statutorily timely manner, and that no taxpayer of Lake County suffered prejudice as a result of the extension of time to file the 1978 appropriation ordinance. The majority’s apparent concern that the extension of the time for passage of an appropriation ordinance by the City would disrupt the tax collection process is unfounded in this case. Because I find no merit in the remaining contentions of the objector, I would affirm the judgment of the circuit court.