*1 reluctant, We are the act. constitutional validity second one-half of the however, almost para ignore of the act in under construing guise graph would amount the We believe that such act. procedure function drafting legislation legislative performing construc function statutory rather than judicial has Here the tion.” majority 14-15.) in order excised a stated give clearly statutory provision which, without effect to an ambiguous provision inconsistent, has excision, thereby vague the General standards set lowered the minimum amendatory over a 26 years period I hold that the would organiza legislation. than 4000 district of less tion of a population incom valuation is $12,000,000 assessed vague, equalized invalid, and would affirm judgment plete court. appellate KLUCZYNSKI in this dissent.
MR. joins JUSTICE (No. 45784. al., et
ELK GROVE ENGINEERING CO. Appellees, al., et KORZEN, Treasurer, BERNARD County Ap pellants.
Opinion Rehearing October denied Nov. filed 1973 .
RYAN, J., dissenting. SCOTT, General,
WILLIAM of Attorney Springfield J. CARR, A. General, Assistant of coun- (JAYNE Attorney Director, for of Local Govern- sel), appellant Department ment Affairs. CAREY,
BERNARD State’s of Attorney, Chicago GARDNER, Division, Chief of Civil (SHELDON NORRIS, MICHAEL HARVEY P. MUSLIN and PAUL P. BIEBEL, Assistant State’s of for JR., Attorneys, counsel), Cook et al. appellants County BERMAN, EDWARD A. of & Chicago (SCHLIFKIN BERMAN, of Elk Grove counsel), appellees Engineer- Co. and Nick DeLuca Alex Theatre. ing d/b/a
EUGENE SHERMAN, T. of Chicago, appellees Celli et al. James SUTTER,
WILLIAM P. of and GORDON C. Chicago, ADLER, SUTTER, OWEN, of Bloomington (HOPKINS, DAVIS, ADLER, MULROY & and MERKER & of for amicus curiae Illinois Associa- counsel), Agricultural tion. delivered
MR. GOLDENHERSH opinion JUSTICE of the court: Government of of Local
The Director the Department of Cook and various officials of the State Illinois Affairs under Rule to this court directly 302(a) County appeal the circuit court three R. from judgments three sections unconstitutional Cook County holding Act of 1939. Revenue Co., case, Elk Grove In the first Engineering plaintiffs, as business Alex DeLuca, and Nick doing corporation, and for Theatre, a sole “individually proprietorship, users class of non-farm and owners tangible personal treasurer, clerk defendants property,” naming the director of Cook Depart- assessor County, Illinois, Affairs of the State Local Government ment of action a declaratory judgment filed an seeking paragraph subparagraph (a) personal-property Stat., Rev. of 1939 the Revenue Act (Ill. was unconstitutional ch. par. 499) Supp., *3 13 of article I, and section of article violative 2 constitution, amend- and fourteenth IV the Illinois of the United States. to the Constitution ment Celli, “individually case, In the second plaintiff, James of all' other on behalf and in capacity representative as defendants situated,” Illinois similarly naming taxpayers case and in the first are so as designated same parties of Cook Tax of the Board of members Appeals a declaratory judgment filed an action seeking County, of the Revenue Act that sections 51.5 51.6 through ch. Stat., pars. 1939 Rev. 1972 Supp., (Ill. violative of section were unconstitutional 532.1-532.6) constitution, and the IX of the Illinois of article constitution. to the Federal fourteenth amendment Elk Grove case, Engineering In the third plaintiff, and for the class of corporate “individually Company, and owners of tangible personal non-residential users defend- same in an action directed against property,” case, declaratory in the first sought ants as are named judgment subparagraph (b) personal-property of section 18 of the Revenue Act of paragraph (Ill. Stat., Rev. ch. was unconstitu- 1972 Supp., par. 499) tional as I, violative of article and section of article IX of the Illinois and the fourteenth constitution, amendment to the Federal or alternatively that section of the Revenue Act of 19.21a Rev. (Ill. Stat. ch. was unconstitutional par. 500.21a) “in its offensiveness to both the 1870 and 1970 Constitu- tions of the State of Illinois and that of the United States.”
In each case the defendants to strike and moved and, dismiss the consideration of complaints, following briefs the circuit court held that argument, had the actions in their own plaintiffs standing bring behalf and class, of a that each proper representatives action was maintained as a class action and the properly members of the class were adequately competently and that the statutes were unconsti- attacked represented, tutional. Pursuant to between stipulation parties, circuit court ordered the cases consolidated for purposes All of the defendants from judgments appeal. appeal cases, in the first and but in the third second case only officials have county appealed. 18 of the Revenue Act of 1939
Section provides pertinent part: shall
“The named in this section classes be, may except so much thereof as be assessed taxed Act, exempted: in this real in this state.
First: All except property in this Second: All State thereof: following classes which is used tangible personal property (a) All exclusively cultivating, operating the owner thereof in this *4 farming of managing a farm or in the business *** State. living personal Household furniture used for (b) one auto- residence and purposes of the owner at his per purposes, house- personal pleasure mobile for used Stat., Supp., par. 499. ch. hold.” Ill. Rev. Section 51.1 part: provides pertinent “Every corporate, or shall be taxpayer, individual $5,000 to exceed from allowed a standard deduction not his, property, of her or assessed valuation its by or of Local Department assessed equalized ***” Stat., Supp., ch. Ill. Rev. Government Affairs. 120, par. 532.1. of 1970 5 of article IX of Section provides: classify may Assembly by law The General “(a) valuation, by purposes for of taxation
personal property any all and authorize such taxes on or classes abolish levy personal property of the of taxes lieu taxation by valuation. tax Any ad valorem
(b) shall the effective date of Constitution on or before not be reinstated. General On before
(c) Assembly by all ad valorem law shall abolish concurrently and thereafter property taxes therewith government units local replace shall all revenue lost of ad and school districts result abolition subsequent valorem taxes replaced imposing 1971. revenue shall be Such taxes, real ad valorem taxes on statewide other than estate, solely relieved of the on those classes burden because of paying taxes If subsequent of such taxes abolition any imposed replacement purposes for are such taxes income, replacement such taxes taxes on or measured purposes of the limitations shall not be considered one of 8 3(a) tax and ratio to 5 set forth Section this Article.” With tangible personal respect exemption it is used the owner farming, exclusively the classification the contention appellants and the use to based nature upon and that because valid, which it is is reasonable and put the basis classification not made ownership, upon enact was not required of article IX. Amicus tax in with section 5(c) compliance reversal, curiae, Association, Illinois urging Agricultural *5 398 that the
argues classification of farmers separate of be purposes taxation would constitu tional; that the statute under attack for a provides separate classification of farm farmers, not of property, constitutional”; “clearly that section of article IX is 5(c) here because section refers to of inapplicable classes 5(a) and the in property refers to classes 5(c) of With owners. to household-furni respect ture created section 18 it is the Director’s exemption that constitutes classification of position to the of pursuant of article IX and provisions 5(a) therefore is not to the subject provisions 5(c). ad officials contend that county from exemption valorem tax of household furniture and one automobile been has as valid reason of approved the decision of the in Lehnhausen Lake Court v. Supreme Co., Shore Auto 910, 351, Parts 411 35 U.S. L. Ed. 2d 1001, S. Ct. of this court supplemental opinion remand With following Ill.2d 237). respect standard deduction in section 51.1 the provided appellants contend statute an but a provides, exemption, method valuation determining subject to taxation, and that section of article IX is not here applicable.
In of their contention the circuit court support invalid, held the statutes correctly rely solely plaintiffs the failure of the with comply IX. article provisions of the of section 5 of examination Upon provisions IX article of the constitution we find apposite ex rel. Keenan Mc People v. statement from following Guane, Ill.2d “While in the constitu construing tion the true concerns of the inquiry understanding it, its voters who meaning provisions by adopted still the debates members practice consulting of the convention which has framed long been courts in indulged determining meaning be v. doubtful. which are thought (Burke provisions 328; Chief v. 208 Ill. son Avery, 78.) Snively, Wolf 6 Wheat. Marshall in Cohens Virginia, [19 U.S.] Justice Ed. for this 5 L. offered precedent words: constitutional these technique interpretation ‘In them of the Federal constitu words expounding [the , into view those we to take may permitted tion] allowed considerations which courts have always great The framers in the laws. weight exposition the state of examine things constitution would naturally *6 time; attests that their at the and work sufficiently existing ” 520, The did so.’ 527.) problems they (13 of 1870 of the constitution created the requirement by as to all be uniform valuation must that tax measured by art. Const. both real and (1870), (Ill. property, Co., 1; rel. Ins. IX, ex Palmer v. National sec. People Life 42; were 21 Ill. People Worthington, 367 Ill. Illinois Constitu to the Sixth recognized by delegates on the Committee Convention, and in its tional report, universal the uniform and Finance stated that Revenue is administratively not taxation of property effects.” economic “has unfortunate feasible and Con Illinois Constitutional Record of Sixth Proceedings, The as cited Proceedings].) vention 2133 [hereinafter taxation of such that the criticism reflects despite report source it was a that major the committee recognized awas of local revenue for units government. the commit within not source of disagreement, only major convention, and section tee, prior but draft revis and amendments underwent many approval, ions. section contained form
In the proposed, originally differences, now, is for minor language what except only acknowledged The committee’s section proposal 5(a). to a be submitted 30 would No. Senate Resolution Joint election in November vote at the referendum general debates, indicate drafting committee, the members of the and the majority convention, that article delegates anticipated IX—A would be the voters in the November by approved 1970 election.
In its the committee said: report approve “If the voters there November SJR yet will be adoption proposed another reason for the proposed by Section The language 4.2. 30 in 1969 SJR ‘clarified’ 67 in 1970 will create new property SJR problems. Apparently, tax exempt it will is individuals which used purposes, non-business the personal property but also organized used farms single proprie- and businesses torships. competitors organized Similar used partnerships or corporations will remain This taxable. competitive problems provide opportuni- will create ties for avoiding property taxation transfer of owner- ship to individuals. Some members the Committee also likely believe that to be held in violation of the federal constitution.
Approval of a new constitution after November 3 containing proposed nullify Section will results 4.2 permit legislature referendum that date and will carefully provide to enact legislation drafted to legislation provide tax relief. Such could for broader exemptions proposed than those SJR Undoubtedly, drafting narrower ones. such legislation, *7 Assembly the General be would conscious whatever public attitude toward taxation election, revealed results of November 3 but it would not be bound every proposal.” detail of the Proceedings 2136-7. Nine of the 18 members of the Revenue Committee dissented from the proposal. (7 Proceedings 2138-2142.) Six of the members dissenting proposed following addition to 5:
“ ad ‘Any valorem personal property tax or imposed not on the date this article takes effect shall not be reinstated or imposed 1, 1979, thereafter. On the General Assembly shall abolish all ad valorem property taxes previously abolished, not replace and shall a result units as governmental lost to local revenues levy of authorizing the taxes by levying or abolition such Proceedings basis’.” 7 than an ad valorem other the first sentence They explained purpose the ad abolishing was validate existing legislation any 1969, ch. Ill. Rev. Stat. valorem tax (see personal property to be held on the referendum and 500.21a) par. that the also article IX-A. They explained then-proposed was to direct abolition of the second sentence purpose taxation, but all ad valorem personal property to local order to avoid needless governmental disruption and for a finances nine-year period phase-out provided was revenue. The lost original proposal replacement introduced in the convention (3 Proceedings offered as an amendment was minority proposal two sentences motion, On Proceedings 2038). There was into two
amendment were divided questions. the first sentence little debate on majority proposal arose concern amendment, but strong disagreement and the were extensive the second. The debates ing See and varied. 3 Proceedings amendments many proposed 2149-2154; 7 2067, 2138, 2139, 2065, 2066, 2037-2061, 3762-3764, 2252-2253; 5 Proceedings Proceedings 3829, 3831, 3822, 3823, 3825, 3833-3839. amendment was
On the following August proposed:
“ property tax abol- Any ad ‘(b) valorem takes ished on or before on the date Constitution thereafter. effect reinstated shall On or before the General (c) all shall abolish concurrently taxes shall therewith thereafter replace government all revenue lost units of local school districts as a result of the abolition of ad valorem 2,1971, subsequent taxes persons taxes on the class or classes imposing statewide any taxes. If burden of such ad valorem relieved imposed solely for such statewide taxes income, such on or measured purposes taxes are *8 replacement taxes shall not be considered purposes the limitation of one tax and the ratio of 8 to 5 described in Section 3(a). replacement Such of lost revenues shall provided by levy of ad valorem on taxes real ” estate.’ 1 Proceedings 577. The that reflect extensive debate day proceedings and leave no doubt that concerning proposed provision the term “classes” the classes of by meant delegates it that was the intent of the convention that taxpayers tax abolished
any must be therewith and replaced thereafter. concurrently (See No further was raised on Proceedings 3889-90.) question matters, either of these and in the final report Committee on Submission, section 5 Style, Drafting was submitted convention, for consideration of the on third in the in in the form which it reading, appears constitution. that minds Demonstrating to matters have been settled is delegates clearly appear the fact that in its final contained explanations Committee convention the on report Style, Drafting and Submission raised questions: following
“(36) Style, Drafting The Committee on and Sub- question mission raises the whether is clear Convention’s intent was to Assem- mandate bly by ad abolish valorem taxes 1, 1979, opposed them such abolishing IX, provision. (Article 5.) date Section Constitutional [*] [*] [*] Style, Drafting (38) Committee Submis- sion raises the of whether the General if subsequent ad taxes abolishes valorem they concurrent- requirement 1979 the ly replace government of local revenue lost units IX, 5.)” applies. (Article Section and school districts still Proceedings Whalen, On August Delegate explanation said: Style, Submission Drafting report however, did question,
“We have one was if and that tax is not abolished requirement other does attach? In *9 words, personal if on property tax is abolished 3, 1979, or there any requirement is 2 replace the lost revenue? We question raise that as a Convention, and we don’t think we have answer to it. — really The we is second raise and it related — one first is whether first sentence auto- matically abolishes the tax subsequent 1, 1979, to January or legislative whether action required Proceedings to abolish it.” 5 4255. do not reflect further discussion and transcripts
section 5 was on third without further approved reading mention or 5 change. Proceedings
The convention
the 1970 constitution
on
adopted
1970;
3,
3, 1970,
voters,
on November
September
the convention had
article IX-A to
anticipated,
approved
constitution;
the 1870
1970,
15,
on December
ratified the
9,
1970 constitution.
1971,
On
People
July
in Lake
this court
Korzen,
Shore Auto Parts
49
Co.
137,
Ill.2d
an
from held that
exemption
taxation on the
basis of
ownership
created
classification
violation
clause of the fourteenth
equal-protection
amendment
the Federal constitution
and declared article IX-A uncon
stitutional.
Thereafter
the General
enacted
2093,
Public Act
section 18 of the Revenue
amending
77 —
Act of
1939
Stat.,
Rev.
(Ill.
1972
ch.
Supp.,
par.
Public Act
section 51.1
499),
adding
77 —
act; both
20, 1972,
were
and neither
approved
July
makes
distinction between individual and
any
other owners
The United
tangible personal property.
States
Court on
held
Supreme
February
article IX-A of
1870 constitution
does
violate
clause of
the fourteenth
amendment
equal-protection
Co.,
v. Lake
Shore Auto Parts
U.S.
(Lehnhausen
35 L. Ed. 2d
S. Ct. 1001),
and in our
remand
we
supplemental
opinion following
from ad valorem taxation all
held that
exempts
stock,
bank
owned
a natural
including
property,
person
two or more natural
tenants or
joint
persons
tenants
common.
taxable under
article is
Remaining
owned
corporations, partnerships,
limited
ventures,
associa-
joint
partnerships,
professional
tions,
service
or others that are
professional
corporations
not natural
held
trustees
persons,
and other
Parts
fiduciaries. See Lake Shore Auto
Co. v.
Korzen,
Upon proceedings tion and the available commentaries Helman (see Whalen, Constitutional Const. of S.H.A. Commentary, 201-202; 2065; IX, art. sec. 5(c), Proceedings Kamin, Constitutional Abolition of Ad Valorem Personal *10 we Taxes 60 Ill. Bar conclude Property (1972), 432), J. that the a to of section constitute mandate provisions 5(c) the General to abolish all ad valorem taxes on Assembly 1979; the on or before that personal property is not and is both provision self-executing legislation and to it into effect necessary carry contemplated (Fiedler and that the does v. 335 Ill. Eckfeldt, 23-24); provision not that and the all such taxes one require a same time but the General is under Assembly continuing to effect their abolition on or before January duty 437; 333 Ill. Kinney, Fergus (See Proceedings Further, section Assem 3761.) requires when the ad valorem bly, abolishing personal property taxes, to and thereafter all therewith concurrently replace revenue lost units of and school local government districts statewide taxes on those solely imposing classes of the taxes abolished. Like relieved burden all the General to abolish requiring provision not taxes, this is self-execut and it is 5 Proceedings 3888) ing, continuing (see to is both necessary carry legislation contemplated a mandate into effect. Whether section single 5(c) provides mandates, to “abolish” mutually dependent “replace,” a Kamin, or, as mandate suggested supra), (see cannot limitation, we hold that the General Assembly taxes which relieve abolish of the tax class of of the burden without taxpayers taxes in accordance with imposing provis- whether, ions We not determine of section need 5(c). amicus, the contended the defendant Director are or are not under classifications proper section for the reason that section 5(a) although 5(a) classification of purposes permits taxes, we ad valorem taxation and the abolition of such hold that of section revenue-replacement provisions taxes to the abolition of apply whether or effected under 5(a) 5(c). of the defendants
We consider next the contentions that in the statutes do exemptions provided acknow- an abolition of the tax. Defendants constitute taxation that of an from ledge grant exemption or the same result eliminating certain achieves the tax with They property. abolishing respect distinction between however, there is a argue, created under section (a), subparagraph exemption the nature and use which based property, upon which contend falls within 5(a), scope they and an based on ownership property, exemption We which contend comes within scope 5(c). they at the convention in the debates find nothing lengthy distinction, and language support *11 the for which that the we are of the exemption opinion the of an abolition within section meaning provides section 5(c). deduction that the standard
Defendants also argue did not create the Revenue Act in section 51.1 of provided the a an but method determining exemption, provided In to taxation. valuation of the subject Hoffman of Lehnhausen, 323, the we considered validity v. Ill.2d the $1,500 a statute a homestead granting exemption that it a reduction” was valuation argument “property that not a true We held there a valuation exemption. an to the extent the assessed reduction was exemption reduced, that the and we hold here standard value was the is an to deduction in section 51.1 provided exemption extent that it reduces the assessed valuation standard deduction to be We hold further that taxed. is an abolition within meaning in section 51.1 provided tax a of and as therein section replacement 5(c), provided of such with the must be concurrently granting imposed deduction. 18, of section
We need not consider validity to create reason it for the that (b), purports subparagraph of with an exemption respect of which was individuals, the taxation expressly prohibited such of 1870. Since IX-A the constitution under article of the effective date taxation was prior cannot, of 1970, of under provisions reinstated, it was section the case which 5(b), we, held Nor to be invalid is therefore moot. need of consider either validity requested by plaintiffs, Stat. of the Revenue Act of Rev. section 19.21a (Ill. of the constitution ch. under par. 500.21a) of was or whether the intent subsection ex rel. unconstitutional statute People ratify (cf. possibly Caliendo, that Hanrahan reason was no than statute broader granted by exemption abolition tax article under IX-A of the 1870 constitution.
We hold reason of the failure of the General with tax impose compliance IX the 1970 section article provisions constitution, section (a), subparagraph 51.1 Revenue Act 1939 are invalid. The are, Cook judgments circuit court County therefore, affirmed.
Judgments affirmed. *12 RYAN, MR. dissenting: JUSTICE of article view I do not provisions an unenforce- of 1970 as IX of the constitution being only ad valorem to abolish able mandate legislature two into is divided taxes. Section 5(c) personal property ad valorem abolition of the The subjects: (1) lost tax, revenue the replacement (2) a result districts as of local school units government the tax. the abolition of contained in to abolition The relating provisions 1, 1979, the are: “On or before January all law abolish ad valorem shall taxes ***.” This invites language a on the as to whether it constitutes limitation inquiry it is to tax or whether legislature sovereign power an unenforceable mandate. merely majority opinion I a mandate to the holds it to the latter. view it as and thereafter until lasting legislature January of an ad constitutes a limitation the imposition prohibiting valorem tax after that date. constitu-
When this was offered first provision tional convention it was offered for purpose of that The date abolition tax. ensuring were 1979, and the action requirement legislative out of the tax to inserted to provide gradual phasing en- that would be avoid the and confusion disruption units a sudden and countered local abrupt taxing debate of revenue. curtailment this source During its on its both this before proponents proposition adoption on it as a limitation recognized power opponents tax which would abolish effectively Constitu- taxes after 1979. (Kamin, Taxes, Personal tional of Ad Valorem Property Abolition After this section was 60 Illinois Bar 439.) Journal it was referred to the committee style adopted its It was had submitted after committee drafting. belief draft voiced their that some delgates proposed that the was not a limitation the effect of provision having the tax after but was abolishing only mandate which the Kamin, could See legislature ignore. 440 and pages
If this to be viewed as a mandate to *13 was the time which the legislature, abolition why by must be fixed at 1979? A accomplished January mandate to the could have stated “the legislature simply law shall abolish all ad valorem Assembly by taxes.” This would have had language the same effect as the to the first interpretation given part of section of this court. The insertion 5(c) by majority the date have had must some January meaning. It is to assume that the does not mean that logical language after 1979, the cannot abolish this legislature tax. that comes to unpopular only logical explanation mind is that the insertion of this date the constitution by directed the General out this tax by phase 1, 1979, and after that date its prohibited imposition.
A further of this persuasive argument support conclusion is belief that this was also my undoubtedly of the voters when ratified 1970 understanding they constitution. of the Following adoption proposed to the constitutional conven- delegates tion million 12 “Official Text with copies Explana- tion” authorized were convention printed tabloid form and one was mailed to each newspaper copy voter in the State and it was also carried as a registered to most of the within supplement newspapers published Illinois. Record of Constitutional Sixth Proceedings, Convention at the of this 2667.) Incorporated beginning document was an “Address to the which stated People” under the “The Revenue Article”: heading
“The is made tax concerned, dependent, insofar as individuals are on the amendment which is to be voted on at the November election, general 1970 prohibit which would Any remaining personal tax ‘as to individuals’. property tax is to be (Emphasis ***.” added.) Proceedings 2676.
This also contained the publication proposed constitution, set forth section section an with explana- tion each section. At the of this following beginning part of the document was an “Introduction” which stated: proposed
“The 1970 constitution for the State Illinois appears on following this and the pages. The official text printed in black. each Following appropriate section is information explaining explanations that section. These printed are Proceedings blue.” 7 IX, of article
Following explaining effect of section, the official states: explanation prohibits
“It taxing any personal property by its value after January 1979.” 7 Proceedings 2737.
Regardless of some of the understanding to the constitutional delegates convention as to the the official meaning which was 5(c), explanation to the voters of given this State was that after *14 1979, the ad valorem tax was prohib- ited. The voters were thus on this section of the voting constitution not as a mandate to the that could legislature be but as a ignored limitation the upon legislature’s power The fact that only to a tax on property. impose the contents was to consideration given cursory the to the delegates Text with by “Official Explanation” not does Kamin constitutional convention (see page no consideration receive interpret- that it should mean the official This was the constitution. this section of ing which the constitution the proposed explanation to the to be submitted convention authorized people to vote for whether their determining guidance a favorable Without constitution. the against proposed have been would not the the constitution vote of people that section 5(c) were informed The people adopted. after value by the tax on I that. to do the voted just people a not cannot now that section does constitute say the to tax limitation on General Assembly power I a 1, 1979. have on after to consid- occasion on the need commented previous give to the was eration to the official which given explanation voters when to the the 1970 constitution prior adoption its See Board interpreting meaning provisions. Bakalis, Education v. 476 and 477. now the ques- Considering replacement-of-lost-revenue I to tion this consider presented 5(c), provision is not a mandate which legislature enforceable judicial majority opinion proceedings. finds be either a on the General this limitation provision a tax or Assembly’s power dependent must be carried out to validate to abolish any attempt tax. this I With cannot interpretation agree. aas the abolition
Viewing part limitation, 1979, the General after Assembly would have no to authorize the authority imposition failure tax. What then would be the effect tax? It at that time to enact a legislature replacement of a tax which would clearly require re-imposition Thus the constitutional require- prohibits. a must be ment that the enact tax legislature replacement considered as a mandate which until imposes body continuing obligation upon but cannot be enforced which by judicial performed, action. to enact
If would be the effect of a failure this I it as 1, 1979, must tax after January accept to do so at of the failure effect legislature I hold time. would therefore the statutory provisions to be I would reverse constitutional circuit court Cook County.