*1 Illinois Official Reports
Appellate Court
Iwan Ries & Co. v. City of Chicago
,
Appellate Court IWAN RIES & CO., an Illinois Corporation; CIGAR ASSOCIATION OF AMERICA, INC., a New York Corporation; ILLINOIS Caption
ASSOCIATION OF WHOLESALE DISTRIBUTORS, an Illinois Corporation; ILLINOIS RETAIL MERCHANTS ASSOCIATION, an Illinois Corporation; INTERNATIONAL PREMIUM CIGAR AND PIPE RETAILERS ASSOCIATION, a New York Corporation; NATIONAL ASSOCIATION OF TOBACCO OUTLETS, INC., a Minnesota Corporation; and ARANGOLD CORPORATION, d/b/a Arango Cigar Co., an Illinois Corporation, Plaintiffs-Appellees, v. THE CITY OF CHICAGO and ERIN KEANE, in Her Capacity as the Comptroller of the Department of Finance Within the City of Chicago, Illinois, Defendants-Appellants. First District, Fourth Division
District & No.
Docket No. 1-17-0875 Filed December 20, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-50356; the Hon. Ann Collins-Dole, Judge, presiding. Review Reversed. Judgment
Counsel on Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Irina Y. Dmitrieva, Assistant Appeal
Corporation Counsel, of counsel), for appellants.
Stanley R. Kaminski, Amy E. McCracken, and Elinor H. Murárová, of Duane Morris LLP, of Chicago, for appellees. JUSTICE REYES delivered the judgment of the court, with opinion.
Panel
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION ¶ 1 The instant appeal arises from the circuit court’s grant of partial summary judgment in
favor of plaintiffs, Iwan Ries & Co.; Cigar Association of America, Inc.; Illinois Association of Wholesale Distributors; Illinois Retail Merchants Association; International Premium Cigar and Pipe Retailers Association; National Association of Tobacco Outlets, Inc.; and Arangold Corporation d/b/a Arango Cigar Co., which operated to strike down the City of Chicago Other Tobacco Products Tax Ordinance (ordinance) (Chicago Municipal Code § 3-49 (added Mar. 16, 2016)). The circuit court found that the City of Chicago’s home rule authority to enact the ordinance was preempted by section 8-11-6a(2) of the Illinois Municipal Code (65 ILCS 5/8-11-6a(2) (West 2016)). Defendants, the City of Chicago and Erin Keane in her capacity as the Comptroller of the Department of Finance (collectively the City), appeal, and for the reasons that follow, we reverse the judgment of the circuit court. BACKGROUND The center of the dispute in this matter is the ordinance enacted by the Chicago City
Council on March 16, 2016, which created flat taxes on units of non-cigarette tobacco products including smoking tobacco, smokeless tobacco, pipe tobacco, little cigars, and large cigars sold and used within Chicago. Chicago Municipal Code § 3-49-30 (added Mar. 16, 2016). Plaintiffs filed a verified complaint for declaratory judgment and injunctive relief on May 26, 2016, requesting the circuit court declare the ordinance unconstitutional pursuant to article VII, section 6(g), of the Illinois Constitution and to permanently enjoin its enforcement. Ill. Const. 1970, art. VII, § 6(g). Plaintiffs maintained that the City’s home rule power to tax non-cigarette tobacco products was preempted by section 8-11-6a(2) of the Municipal Code (65 ILCS 5/8-11-6a(2) (West 2016)), which provides that “a home rule municipality that has not imposed a tax based on the number of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date.” Plaintiffs alleged that the City could not impose this new tax on non-cigarette products because it had previously taxed only cigarettes (not non-cigarette products) before July 1, 1993. Subsequently, plaintiffs filed a three-count amended complaint for declaratory and
injunctive relief: count I sought a declaratory judgment that the ordinance was unauthorized because it was preempted by section 8-11-6a(2) of the Municipal Code; count II sought a permanent injunction; and count III sought a declaratory judgment and permanent injunction as to other regulatory provisions not at issue in this appeal that imposed price floors for *3 non-cigarette tobacco products, prohibited the use of coupons, and imposed minimum packaging requirements for certain tobacco products.
¶ 6 Thereafter, the parties filed cross-motions for partial summary judgment on counts I and II
of the amended complaint, addressing the sole issue of whether section 8-11-6a(2) of the Municipal Code preempts the City’s home rule authority to impose the ordinance. The parties were in agreement that the City had in place, as of July 1, 1993, a tax on cigarettes. Plaintiffs maintained that the plain language of section 8-11-6a(2) of the Municipal Code only allowed a home rule authority to enact a tax on “tobacco products” if such a tax was in existence prior to July 1, 1993. Because the City had not enacted a tax on the other tobacco products as listed in the ordinance, they could not do so now. In response, the City maintained that it was not preempted from enacting the ordinance because it was merely required to have a tax in place before July 1, 1993, on either cigarettes or “tobacco products.” ¶ 7 After the matter was fully briefed and argued, the circuit court ruled that section 8-11-6a(2)
of the Municipal Code preempted the City’s authority to enact the ordinance and thus granted plaintiffs’ motion for partial summary judgment and denied the City’s motion. Thereafter, the circuit court entered an order pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). This appeal followed.
¶ 8 ANALYSIS This appeal requires us to determine whether or not section 8-11-6a(2) of the Municipal
Code (65 ILCS 5/8-11-6a(2) (West 2016)) preempts the City’s home rule authority to enact the ordinance that taxes tobacco products other than cigarettes. See Chicago Municipal Code § 3-49-020 (added Mar. 16, 2016) (specifically excluding from its definition of “[o]ther [t]obacco [p]roducts” cigarettes, electronic cigarettes, and liquid nicotine products). The City contends that the ordinance is a valid exercise of its home rule authority. The City maintains that because it had imposed a tax on cigarettes prior to July 1, 1993, it falls within the exception of section 8-11-6a(2) of the Municipal Code, which it contends must be read to provide for a tax on either cigarettes or non-cigarette tobacco products prior to July 1, 1993. 65 ILCS 5/8-11-6a(2) (West 2016). The City reasons that because it taxed cigarettes, a tax within the category of cigarettes or non-cigarette tobacco products, prior to July 1, 1993, the ordinance is valid. The City concedes that no tax on “tobacco products” other than cigarettes had been implemented prior to July 1, 1993. In response, plaintiffs contend that section 8-11-6a(2) unambiguously provides that the
City, a home rule municipality, cannot impose a tax on tobacco products unless the municipality imposed such a tax prior to July 1, 1993. According to plaintiffs, the use of the phrase “such a tax” in section 8-11-6a(2) refers to a tax on either “cigarettes or tobacco products.” Id. Plaintiffs reason that, because “such a tax” is a singular modifier, it can only be referring to a separate tax on cigarettes or a separate tax on other tobacco products. Plaintiffs maintain that because the City did not impose a tax on tobacco products prior to July 1, 1993, the City is precluded from enacting the ordinance. We first set forth our standard of review. This matter comes before us after the disposition
of cross-motions for summary judgment. Summary judgment is appropriate when the
pleadings, depositions, admissions, and affidavits, viewed in a light most favorable to the
nonmovant, fail to establish that a genuine issue of material fact exists, thereby entitling the
moving party to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016);
Fox v.
*4
Seiden
,
preempted by section 8-11-6a(2), we must necessarily begin by discussing our constitution and
the power it grants to home rule units. The relationship between our state and local
governments was aptly recounted by our supreme court in
City of Chicago v. StubHub, Inc.
,
“Under the 1870 Illinois Constitution, the balance of power between our state and local governments was heavily weighted toward the state. The 1970 Illinois Constitution drastically altered that balance, giving local governments more autonomy. Schillerstrom Homes, Inc. v. City of Naperville ,198 Ill. 2d 281 , 286-87 (2001); City of Evanston v. Create, Inc. ,85 Ill. 2d 101 , 107 (1981) (quoting 4 Record of Proceedings, Sixth Illinois Constitutional Convention 3024). Municipalities now enjoy ‘the broadest powers possible’ ( Scadron v. City of Des Plaines ,153 Ill. 2d 164 , 174 (1992)) under the Constitution.” Id. ¶ 18.
The court went on to explain that section 6(a) of article VII, “gives municipalities any powers
pertaining to their governments and affairs, including the power to tax, but not the power over
matters such as divorce, real property, trusts, and contracts (7 Record of Proceedings, Sixth
Illinois Constitutional Convention 1621).”
Id.
¶ 19. Thus, “[t]he framers’ intent was clear: ‘the
powers of home-rule units relate to their own problems,’ not problems more competently
solved by the state.”
Id.
(quoting 7 Record of Proceedings, Sixth Illinois Constitutional
Convention 1621). The court also observed that, “[t]he framers *** understood that further
interpretation of section 6(a)’s intentionally imprecise language would fall to the judicial
branch.” (citing 4 Record of Proceedings, Sixth Illinois Constitutional Convention 3052).
Under the Illinois Constitution, except as limited by article VII, section 6, of the
constitution, a home rule unit such as the City “may exercise any power and perform any
function pertaining to its government and affairs including, but not limited to, the power to
regulate for the protection of the public health, safety, morals and welfare; to license; to tax;
and to incur debt.” Ill. Const. 1970, art. VII, § 6(a). “Section 6(a) was written with the intention
to give home rule units the broadest powers possible.”
Palm v. 2800 Lake Shore Drive
Condominium Ass’n
,
rule powers by expressly limiting that authority.”
Palm
,
must contain an express statement to that effect.”
Palm
,
authority to tax cigarettes pursuant to section 8-11-6(a) of the Municipal Code, which provides as follows:
“Except as provided in Sections 8-11-1, 8-11-5, 8-11-6, 8-11-6b, 8-11-6c, and 11-74.3-6 on and after September 1, 1990, no home rule municipality has the authority to impose, pursuant to its home rule authority, a retailer’s occupation tax, service occupation tax, use tax, sales tax or other tax on the use, sale or purchase of tangible personal property based on the gross receipts from such sales or the selling or purchase price of said tangible personal property. Notwithstanding the foregoing, this Section does not preempt any home rule imposed tax such as the following : *** (2) a tax based on the number of units of cigarettes or tobacco products (provided, however, that a home rule municipality that has not imposed a tax based on the number of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date) ; ***. *** This Section is a limitation, pursuant to subsection (g) of Section 6 of Article VII of the Illinois Constitution, on the power of home rule units to tax.” (Emphases added.) 65 ILCS 5/8-11-6a (West 2016).
What is at issue, however, is whether section 8-11-6a(2) of the Municipal Code preempts the
City’s authority to tax “tobacco products” as provided in the ordinance where the City had not
imposed a tax specifically on “tobacco products” prior to July 1, 1993. The answer to this
question requires us to interpret this particular section of the Municipal Code, which we do
de novo
.
Stasko
,
drafter’s intent.
Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan
District
, 238 Ill. 2d 262, 268 (2010). The statutory language, given its plain and ordinary
meaning, is the best indication of that intent.
Palm
, 2013 IL 110505, ¶ 48. “A reasonable
construction must be given to each word, clause, and sentence of a statute, and no term should
*6
be rendered superfluous.”
1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co.
, 2015
IL 118372, ¶ 21. When determining a statute’s meaning, the statute should be read as a whole,
with all relevant parts considered.
Gardner v. Mullins
,
whether the questioned home rule ordinance is related to its government and affairs and
whether the state legislature has preempted the exercise of the home rule power.”
Page v. City
of Chicago
,
find it to be both helpful and instructive. See Illinois Chiropractic Society v. Giello , 18 Ill. 2d 306, 312 (1960) (when a statute has been amended, courts are to construe the language of the amendment together with the original act). Section 8-11-6a was originally enacted in 1988 and expressly limited a home rule
municipality from imposing certain taxes on the use, sale, or purchase of tangible personal property. See Ill. Rev. Stat. 1989, ch. 24, ¶ 8-11-6a (stating this section “is a limitation, pursuant to subsection (g) of Section 6 of Article VII of the Illinois Constitution, on the power of home rule units to tax”). The legislature, however, allowed for certain exceptions to this rule and set forth seven categories where a home rule unit could impose a tax. See id. Section 8-11-6a, as originally enacted, provided in pertinent part as follows:
“Except as provided in Section 8-11-1, 8-11-5 and 8-11-6, on and after September 1, 1990, no home rule municipality has the authority to impose, pursuant to its home rule authority, a retailer’s occupation tax, service occupation tax, use tax, sales tax or other tax on the use, sale or purchase of tangible personal property based on the gross receipts from such sales or the selling or purchase price of said tangible personal property. Notwithstanding the foregoing, this Section does not preempt any home rule imposed tax such as the following : (1) a tax on alcoholic beverages, whether based on gross receipts, volume sold or any other measurement; (2) a tax based on the number of units of cigarettes or tobacco products ; (3) a tax, however measured, based on the use of a hotel or motel room or similar facility; (4) a tax, however measured, on the sale or transfer of real property; (5) a tax, however measured, on lease receipts; (6) a tax on food prepared for immediate consumption and on alcoholic beverages ***; or (7) other taxes not based on the selling or purchase price or gross receipts from the use, sale or purchase of tangible personal property. *** This Section is a limitation, pursuant to subsection (g) of Section 6 of Article VII of the Illinois Constitution, on the power of home rule units to tax.” (Emphases added.) Id. Relevant to the issue in this case section 8-11-6a originally provided: “this Section does not
preempt any home rule imposed tax such as the following *** (2) a tax based on the number of units of cigarettes or tobacco products.” (Emphasis added.) Thus, beginning on September 1, 1990, a home rule municipality, such as the City, was allowed to impose a tax based on the *7 selling or purchase price or gross receipts from the sale of cigarettes or tobacco products. See id. The City maintains that “or” was employed in the first iteration of the statute in the
inclusive sense and thus the statute allowed a home rule unit the power to tax either cigarettes,
or non-cigarette tobacco products, or both. We agree with the City’s interpretation. Viewing
the statute as a whole, which we must (
Sinkus v. BTE Consulting
,
inclusive sense. See
Campbell v. Prudential Insurance Co. of America
, 15 Ill. 2d 308, 311
(1958). Whether “or” is used in the inclusive sense is determined by the context in which it is
used. See
Coalition for Political Honesty v. State Board of Elections
, 65 Ill. 2d 453, 466
(1976); see also
Sinkus
,
reviewing courts examined the context in which the word “or” was employed to interpret the
legislature’s intent. See
Apex Oil Co. v. Henkhaus
,
“ ‘All property of every kind belonging to the Chicago Regional Port District or any other port district created by the legislature of this State, provided that a tax may be levied upon a lessee of such a District by reason of the value of a leasehold estate separate and apart from the fee, or upon such improvements as are constructed and owned by others than the Port District.’ ” (Emphasis in original.) Apex Oil Co. , 118 Ill. App. 3d at 275 (quoting Ill. Rev. Stat. 1979, ch. 120, ¶ 500.19).
In determining whether the plaintiff should have been taxed on the value of its leasehold and the improvements constructed thereon, the reviewing court determined
“the disjunction ‘or’ in section 19.19 is of no significance as it appears to us unlikely that the legislature intended to require local assessing authorities to choose between valuing the leasehold without consideration of the value of improvements erected by others or the improvements erected by others without consideration of the current market rental value of the lease.” Id. at 278.
Accordingly, the court concluded that the proper interpretation of section 19.19 was that “a tax may be levied upon the value of the leasehold which includes improvements erected thereon by the lessor, or upon the leasehold and improvements erected thereon by others, so that regardless of ownership of the improvements, they will not be exempt from taxation.” (Emphasis omitted.) Id. at 279. In reaching this conclusion, the Apex Oil Co. court recognized that “the disjunctive ‘or’ and conjunctive ‘and’ are not always employed in statutory drafting to express the true legislative purpose, and when it seems apparent that a literal reading would produce a result not intended, the literal meaning may be altered to express the true legislative purpose.” Id. Similarly, in Thoman this court construed certain language in the Road Construction
Injuries Act (Ill. Rev. Stat. 1983, ch. 121, ¶ 314.1) to determine whether the defendants in a negligence case, consisting of a governmental agency and its employee, were exempted from liability. Thoman , 148 Ill. App. 3d at 357. There, the plaintiff suffered injuries when her automobile collided with defendant Daniel McGee’s vehicle. Id. McGee was an employee of defendant Village of Northbrook and was engaged in road repairs while operating a vehicle owned by the Village of Northbrook at the time of the collision. Id. The plaintiff’s lawsuit alleged two counts: (1) negligence and (2) violations of the Road Construction Injuries Act. Id. The defendants then moved to dismiss count II arguing that the language of the Road Construction Injuries Act exempted them from liability. Id. The trial court granted the motion, and the plaintiff appealed. Id. On appeal, the reviewing court considered the following language of the Road
Construction Injuries Act: “ ‘The provisions of this Act shall not apply to employees or officials of the State of Illinois or any other public agency engaged in the construction or the maintenance of highways and bridges.’ ” Id. (quoting Ill. Rev. Stat. 1983, ch. 121, ¶ 314.8). The plaintiff maintained that this section did not exempt local governments (such as the Village of Northbrook) and their employees from the duties and liabilities imposed by the statute and urged that “since the word ‘or’ is used in the phrase ‘of the State of Illinois or any other public agency,’ this phrase must be read in the disjunctive.” at 357-58. The plaintiff argued that based on this construction, the exemption was not intended to apply to any *9 governmental body but was only intended to apply to certain employees or officials of those governmental bodies. Id. at 358. The reviewing court was not persuaded by the plaintiff’s argument. In reaching the
conclusion that the statute exempted government agencies as well as their employees and officials from the provisions of the Road Construction Injury Act, the court explained:
“We are also mindful of the rule that the disjunction ‘or’ and conjunction ‘and’ are not always employed in statutory drafting to express the true legislative purpose, and when it seems apparent that a literal reading would produce a result not intended, the literal meaning may be altered to express the true legislative purpose. [Citation.] We believe the use of the disjunction ‘or’ in section 8 is of no significance as it appears to us unlikely that the legislature intended to carve out an exemption for governmental employees and officials and not the agencies they represent.” at 359. Following the guidance of Apex and Thoman , when viewing the original section 8-11-6a in its entirety (Ill. Rev. Stat. 1989, ch. 24, ¶ 8-11-6a), it is apparent that the legislature intended to carve out broad categories that home rule units would be allowed to tax and that the use of the word “or” in “cigarettes or tobacco products” was originally employed by the legislature in an inclusive sense so as to cover the gamut of nicotine based products. In 1993, the general assembly amended section 8-11-6a(2) to impose a limitation on “a tax
based on the number of units of cigarettes or tobacco products.” Besides this limitation, the language of the statute remained the same:
“Notwithstanding the foregoing, this Section does not preempt any home rule imposed tax such as the following: *** (2) a tax based on the number of units of cigarettes or tobacco products (provided, however, that a home rule municipality that has not imposed a tax based on the number of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date) [.]” (Emphasis added.) 65 ILCS 5/8-11- 6a(2) (West 2016).
When adding this parenthetical clause to section 8-11-6a(2), the legislature mirrored the language that appeared in the original statute, “cigarettes or tobacco products.” As previously determined, it was the legislature’s intent to carve out a broad category. “Where a meaning is attributed to a word and it again appears in the same statute, it should be given consistent meaning unless a contrary legislative intent is clearly expressed.” Chapman v. County of Will , 55 Ill. 2d 524, 529-30 (1973); Borg , 111 Ill. App. 3d at 657. Construing these terms consistently within the statute and in light of its original meaning, it follows that either a tax based on the number of units of cigarettes or tobacco products or both must have been in effect prior to July 1, 1993, in order for a home rule unit’s power to tax “cigarettes or tobacco products” not to be preempted. In addition, the legislature’s repeated use of the words “a tax” in section 8-11-6a(2)
supports our interpretation. The description of what a home rule unit is allowed to tax (the
number of units of cigarettes or tobacco products) is introduced with an indefinite article, “a
tax.” The word “a” is an indefinite article and is used in English to “refer to a person or thing
that is not identified or specified.” Merriam-Webster Online Dictionary, https://www.
merriam-webster.com/dictionary/indefinite%20article (last visited Dec. 4, 2018) [https://
perma.cc/AX98-2F4R]. Thus, according to the basic principles of grammar, when an
indefinite article prefaces a noun, that noun refers to something general rather than something
specific. Accordingly, based on common grammar principles and our prior conclusion that the
*10
legislature intended to allow a home rule unit to tax a broad category of nicotine products, the
words “a tax” as employed in the context of section 8-11-6a(2) refers not to a specific tax, but
to a tax generally on either cigarettes or tobacco products or both. See
Warner v. King
, 267 Ill.
82, 87 (1915) (the grammatical construction of a statute is one mode of interpretation and
“[s]tatutes *** are to be read and understood primarily according to their grammatical sense,
unless it is apparent from a perusal of the context of the whole statute that the Legislature did
not express its intention”); see also
People v. Cherry Valley Public Library District
, 356 Ill.
App. 3d 893, 896-97 (2005) (interpreting a statute based on the grammar of the statute itself);
Lyons Township ex rel. Kielczynski v. Village of Indian Head Park
,
fulfilled the condition of the statute that “a tax” exist on either the number of units of cigarettes or tobacco products. Thus, the City is not preempted from now enacting a tax on other tobacco products. Accordingly, we reverse the judgment of the circuit court granting plaintiffs’ motion for partial summary judgment and denying the City’s motion for summary judgment. CONCLUSION The judgment of the circuit court of Cook County is reversed. Reversed.