dissenting:
The majority holds that the County Motor Fuel Tax Law is constitutionally valid. Because I believe that the act constitutes impermissible special legislation, I respectfully dissent.
Special legislation confers a special benefit or exclusive privilege on a person or group of persons to the exclusion of others similarly situated. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 109-10.) "It arbitrarily, and without a sound, reasonable basis, discriminates in favor of a select group.” (Emphasis omitted.) (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137-38.) Prior to the 1970 constitution, deference was accorded the legislature to determine whether a general law could be made applicable. That deference has been largely eliminated by article IV, section 13, of our current constitution. Under article IV, section 13, whether a general law can be made applicable is a matter for judicial determination. See Bridgewater, 51 Ill. 2d at 110; People ex rel. East Side Levee Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 447.
When a law is attacked as special legislation, it is the duty of the courts to decide whether the classification is unreasonable because it preferentially and arbitrarily includes a class to the exclusion of all others. (Illinois Polygraph Society, 83 Ill. 2d at 138.) The majority states that "review of a special legislation challenge is governed by the same standard that applies to review of equal protection challenges,” and that in this case, the court must determine whether the classification at issue is rationally related to a legitimate State interest. 161 Ill. 2d at 417.
Although not entirely clear from the majority opinion, determination of whether legislation violates the proscription against special legislation actually requires application of a two-pronged test. (In re Belmont Fire Protection District (1986), 111 Ill. 2d 373, 380.) It is not enough that the classification bear a rational relation to the purpose to be attained by the legislation. (In re Belmont, 111 Ill. 2d at 380.) There must be a reasonable basis for the classification and, in addition, the classification must bear a reasonable and proper relation to the purposes of the act and the evil it seeks to remedy. (In re Belmont, 111 Ill. 2d 373; Bridgewater, 51 Ill. 2d at 111; Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 399.) If relation to purpose were the only relevant inquiry, special legislation could always be sustained, regardless of how arbitrary the distinction between the classes.
"The legislature cannot create a class through the medium of an arbitrary statutory declaration in order that the class may be the recipient of special and exclusive legislative favors.” (In re Belmont, 111 Ill. 2d at 380, citing People v. Brown (1950), 407 Ill. 565, 584.) For a statutory classification to be valid, the classification must be based upon a rational difference of situation or condition found to exist in the persons or objects upon which the classification rests. (In re Belmont, 111 Ill. 2d at 380.) It is my opinion that the classification here is an arbitrary distinction not founded upon any substantial difference of situation or condition and it is, therefore, violative of article IV, section 13, of our constitution.
The act provides no reason as to why only Du Page, Kane and McHenry Counties are covered under the act. The act merely names, without any qualifying characteristics, the three counties included within its scope. In argument to this court, the Counties suggest that conferral of the right to tax is because Du Page, Kane and McHenry Counties are the fastest growing counties in the State.
Certainly, as the majority points out, no reason for a classification need be stated. Where some rationale is offered, however, we are not required to ignore it. That being the case, I find a portion of the legislative debates provided in the record to be relevant. The legislators made no mention of rapid growth as the basis for their distinction. They did, however, comment on the desire for economic development in the State and that improved roadways would entice business within the State’s borders. (See 86th Ill. Gen. Assem., Senate Proceedings, June 30, 1989, at 256, 257.) Notably, Senator Geo-Karis lent support to the act, stating, "because you want to bring business and industry in this county — in this State, and you’re not going to get it if you don’t have adequate roads at least maintained well.” 86th Ill. Gen. Assem., Senate Proceedings, June 30, 1989, at 309 (statements of Senator Geo-Karis).
Without doubt, the second prong of the special legislation test is satisfied. The gas tax will do just what it purports, with Du Page, Kane and McHenry Counties being the primary beneficiaries of an improved roadway system and economic development. The problem with the act, however, is that the first prong of the test — the basis for the distinction between those blessed counties and those which have not been included under the act— remains unsatisfied. If, in fact, the purpose of the act is to enhance economic development in Illinois, there can be no fair reason to limit participation to only three counties.
As the majority correctly notes, the special legislation provision does not prohibit all classification. It purports merely to prohibit arbitrary legislative classifications. (161 Ill. 2d at 417.) I would agree with the majority that mathematical precision in creating a classification is not required. (See 161 Ill. 2d at 421.) However, in order to defeat a challenge to the reasonableness of a classification, any distinction between classifications, for purposes of special legislation analysis, must be founded upon a rational or substantial difference of situation or condition. (See In re Belmont, 111 Ill. 2d at 382.) As related to the purposes of this act, there is no substantial difference of situation which can support this classification.
I also agree with the majority that legislation is not special merely because it operates in only one part of the State. (See 161 Ill. 2d at 419.) In that regard, the majority cites Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, and People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, in support. Clearly, as the majority notes, there was a rational basis for the classifications in those cases. I believe that what was significant in determining that the legislation in those cases was not impermissibly special, however, was that the enactments embraced all those who occupied a like position to those included under the various enactments.
As has been stated, it is the Counties’ argument that the act is constitutionally permissible because of the rapid growth in Du Page, McHenry and Kane Counties. Plaintiffs’ response that Will and Lake Counties also experienced rapid growth is answered with recognition by the majority of the legislature’s flexibility in making classifications. 161 Ill. 2d at 420-21.
The majority’s response merely begs the question. This court is charged with the constitutional responsibility to determine whether a general law can be made applicable. We can take no refuge in the recitation of
general legal principles in the avoidance of our constitutional mandate. That the legislature is given "great flexibility in addressing the different needs throughout the State” does not give the legislature carte blanche to enact impermissible special legislation. Further, "this court cannot rule that the legislature is free to enact special legislation simply because 'reform may take one step at a time.’ ” (Grace v. Howlett (1972), 51 Ill. 2d 478, 487, quoting Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465.) Finally, the principles that presumptions are in favor of the validity of an act and that reasonable doubts are to be resolved in favor of its validity cannot serve to frustrate the exercise of our constitutional responsibility. (See In re Belmont, 111 Ill. 2d at 386.) Notwithstanding the legislature’s discretionary powers, it remains the responsibility of this court to determine whether a general law is or can be made applicable. 111. Const. 1970, art. IV, § 13.
In order for the act to survive the challenge of special legislation, it must satisfy both prongs of the two-part test as enunciated in In re Belmont, reasonable classification and a rational relation to the act’s purpose. Braden and Cohn, in their comparative analysis of the Illinois Constitution, provide some guidance on the issue of reasonableness of classifications. In that regard, they suggest that it is difficult to support a classification applicable to cities in excess of 500,000 if there are three large cities with populations of 468,000, 493,000, and 531,000, respectively. However, if the third city was the only one on a lake and if the purpose of the legislation was related in some way to the presence of a lake, then a classification of coverage of cities over 500,000 bordering on a lake would be a rational one. The writers further suggest that a bill applicable to cities over 95,000 but under 100,000 in population would be suspect, for there can hardly be a legitimate purpose for singling out such a narrow population spread. G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 209 (1969). See, e.g., Pettibone v. West Chicago Park Commissioners (1905), 215 Ill. 304 (holding that the distinction between a park district whose limits are co-extensive with a town and a park district in the city whose limits are not co-extensive with the limits of a town is purely arbitrary and without a rational basis).
The Counties argued that Du Page, Kane and McHenry Counties are unique in that they were the fastest growing counties in the State between the years 1980 and 1987. In support of this argument, they presented evidence that between 1980 and 1987, Du Page, Kane and McHenry Counties experienced the highest percentage of population growth in the State. Additionally, the Counties presented evidence that in that same period, those three counties experienced the highest numerical population growth in the State.
Attached to the Counties’ cross-motion for summary judgment are two charts. The first chart, titled "Population Change in Illinois Counties Over 100,000: 1980 To 1987,” is a bar graph. The graph purports to measure numerical population growth per county in Illinois. The second chart is untitled and bears no page designation. That chart purports to measure percentages of population growth for each Illinois county from 1980 to 1988.
In my view, the Counties’ evidence supports the conclusion that Lake County is similarly situated (double-digit percentage increase in population and contiguity to Cook County) to the three counties included within the scope of the act. The exclusion of Lake County from coverage under the act presents a clear example of the arbitrariness of the challenged classification.
Relying, purely for the sake of argument, on the Counties’ unauthenticated charts, it appears that from 1980 to 1988 the three counties covered by the act experienced the following percentage increases in population growth: Du Page — 15.5%, McHenry — 15.7%, Kane — 13.8%. For that same period, Lake County experienced a 12.5% increase. Clearly, Du Page, McHenry and Kane Counties had the greatest percentages of population growth in comparison to Lake and all other counties in the State. However, I am at a loss as to why Kane County’s 13.8% increase, though greater than Lake County’s 12.5% increase, is any more significant than Lake County’s increase. Further, I fail to understand why Kane County’s 13.8% increase compares favorably for inclusion under the act with Du Page County’s 15.5% or McHenry County’s 15.7%, while Lake County’s 12.5% does not similarly compare with Kane County’s 13.8%. I would conclude similarly with respect to those counties’ actual numerical growth for that period. (Du Page — from 658,858 to 760,800; McHenry— from 147,897 to 171,100; Kane — from 278,405 to 316,800; Lake — from 440,388 to 495,300.)
There is no substantial difference in population growth between Lake County and the three counties covered under the act. Accepting the rapid-growth argument, however, what possible justification can there be for excluding Lake County from coverage when its population growth is a mere 1.3% behind that of Kane County?
I am not suggesting that the inclusion of Lake County under the act would have any curative effect. The use of Lake County here is merely exemplary of the arbitrariness of the classification. Any classification must have some reasonable basis.
"A law is general not because it embraces all of the governed, but because it may, from its terms, embrace all who occupy a like position to those included.” (Bridgewater, 51 Ill. 2d at 111.) In my view, the County Motor Fuel Tax Law, which merely names Du Page, Kane and McHenry Counties as beneficiaries, creates an arbitrary classification and, therefore, violates the special legislation proscription. If, as the legislative debates suggest, the purpose of the act is to encourage economic development in the State of Illinois, it should matter little which county serves as the conduit for the benefit. A general law could be made applicable.
For the reasons stated, I dissent.