dissenting:
I do not view the provisions of section 5(c) of article IX of the constitution of 1970 as being only an unenforceable mandate to the legislature to abolish ad valorem personal property taxes. Section 5(c) is divided into two subjects: (1) The abolition of the ad valorem personal property tax, and (2) the replacement of the revenue lost by units of local government and school districts as a result of the abolition of the tax.
The provisions relating to abolition contained in section 5(c) are: “On or before January 1, 1979, the General Assembly by law shall abolish all ad valorem personal property taxes ***.” This language invites the inquiry as to whether it constitutes a limitation on the sovereign power of the legislature to tax or whether it is merely an unenforceable mandate. The majority opinion holds it to be the latter. I view it as a mandate to the legislature lasting until January 1, 1979, and thereafter it constitutes a limitation prohibiting the imposition of an ad valorem personal property tax after that date.
When this provision was first offered at the constitutional convention it was offered for the purpose of ensuring the abolition of that tax. The date January 1, 1979, and the requirement for legislative action were inserted to provide a gradual phasing out of the tax to avoid the disruption and confusion that would be encountered by local taxing units by a sudden and abrupt curtailment of this source of revenue. During the debate on this proposition before its adoption both its proponents and opponents recognized it as a limitation on the power to tax which would effectively abolish ad valorem personal property taxes after January 1, 1979. (Kamin, Constitutional Abolition of Ad Valorem Personal Property Taxes, 60 Illinois Bar Journal 432, 439.) After this section was adopted it was referred to the committee on style and drafting. It was after this committee had submitted its proposed draft that some of the delgates voiced their belief that the provision was not a limitation having the effect of abolishing the tax after January 1, 1979, but was only a mandate which the legislature could ignore. See Kamin, pages 440 and 442.
If this provision is only to be viewed as a mandate to the legislature, why was the time by which the abolition must be accomplished fixed at January 1, 1979? A mandate to the legislature could simply have stated “the General Assembly by law shall abolish all ad valorem personal property taxes.” This language would have had the same effect as the interpretation given to the first part of section 5(c) by the majority of this court. The insertion of the date January 1, 1979, must have had some meaning. It is logical to assume that the language does not mean that after January 1, 1979, the legislature cannot abolish this unpopular tax. The only logical explanation that comes to mind is that by the insertion of this date the constitution directed the General Assembly to phase out this tax by January 1, 1979, and after that date prohibited its imposition.
A further persuasive argument in support of this conclusion is my belief that this was also undoubtedly the understanding of the voters when they ratified the 1970 constitution. Following the adoption of the proposed constitution by the delegates to the constitutional convention 12 million copies of the “Official Text with Explanation” authorized by the convention were printed in newspaper tabloid form and one copy was mailed to each registered voter in the State and it was also carried as a supplement to most of the newspapers published within Illinois. (7 Record of Proceedings, Sixth Constitutional Convention 2667.) Incorporated at the beginning of this document was an “Address to the People” which stated under the heading “The Revenue Article”:
“The ad valorem tax on personal property is made dependent, insofar as individuals are concerned, on the amendment which is to be voted on at the November 3, 1970 general election, which would prohibit the personal property tax ‘as to individuals’. Any remaining personal property tax is to be abolished by 1979 ***.” (Emphasis added.) 7 Proceedings 2676.
This publication also contained the proposed 1970 constitution, set forth section by section with an explanation following each section. At the beginning of this part of the document was an “Introduction” which stated:
“The proposed 1970 constitution for the State of Illinois appears on this and the following pages. The official text is printed in black. Following each section is appropriate information explaining that section. These explanations are printed in blue.” 7 Proceedings 2681.
Following section 5(c) of article IX, explaining the effect of that section, the official explanation states:
“It prohibits taxing any personal property by its value after January 1, 1979.” 7 Proceedings 2737.
Regardless of the understanding of some of the delegates to the constitutional convention as to the meaning of section 5(c), the official explanation which was given to the voters of this State was that after January 1, 1979, the ad valorem personal property tax was prohibited. The voters were thus voting on this section of the constitution not as a mandate to the legislature that could be ignored but as a limitation upon the legislature’s power to impose a tax on personal property. The fact that only cursory consideration was given to the contents of the “Official Text with Explanation” by the delegates to the constitutional convention (see Kamin page 445) does not mean that it should receive no consideration in interpreting this section of the constitution. This was the official explanation of the proposed constitution which the convention authorized to be submitted to the people for their guidance in determining whether to vote for or against the proposed constitution. Without a favorable vote of the people the constitution would not have been adopted. The people were informed that section 5(c) abolished the tax on personal property by value after January 1, 1979, and the people voted to do just that. I cannot now say that section 5(c) does not constitute a limitation on the power of the General Assembly to tax personal property after January 1, 1979. I have on a previous occasion commented on the need to give consideration to the official explanation which was given to the voters prior to the adoption of the 1970 constitution when interpreting the meaning of its provisions. See Board of Education v. Bakalis, 54 Ill.2d 448, at 476 and 477.
Considering now the replacement-of-lost-revenue question presented by section 5(c), I consider this provision to be only a mandate to the legislature which is not enforceable by judicial proceedings. The majority opinion finds this provision to be either a limitation on the General Assembly’s power to tax or a dependent provision that must be carried out to validate any attempt to abolish the tax. With this interpretation I cannot agree.
Viewing the abolition part of section 5(c) as a limitation, after January 1, 1979, the General Assembly would have no authority to authorize the imposition of the tax. What then would be the effect of the failure by the legislature at that time to enact a replacement tax? It clearly would not require the re-imposition of a tax which the constitution prohibits. Thus the constitutional requirement that the legislature enact a replacement tax must be considered as a mandate to the General Assembly which imposes upon that body a continuing obligation until performed, but which cannot be enforced by judicial action.
If this would be the effect of a failure to enact a replacement tax after January 1, 1979, I must accept it as the effect of the failure by the legislature to do so at this time. I would therefore hold the statutory provisions in question to be constitutional and I would reverse the circuit court of Cook County.