People ex rel. Martin v. Commonwealth Edison Co.

No. 2--96--0107

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

THE PEOPLE ex rel. ) Appeal from the Circuit Court
CHRISSIE E. MARTIN, County ) of Ogle County.
Treasurer and ex officio )
Collector of Taxes of Ogle ) No. 92--TX--58
County, )
)
Plaintiff-Appellee, )
)
v. )
)
COMMONWEALTH EDISON COMPANY, ) Honorable
) John W. Rapp, Jr.,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Commonwealth Edison Company (ComEd), appeals from
the trial court's overruling of its objection to plaintiff's,
Chrissie Martin, the ex officio collector of taxes of Ogle County,
application for judgment on Ogle County's 1991 real estate taxes.
Specifically, ComEd is challenging the validity of Ogle County's
1991 aggregate tax levy (the levy) under section 156 of the Revenue
Act of 1939 (the Act) (Ill. Rev. Stat. 1991, ch. 120, par. 637 (now
35 ILCS 200/18--10 (West 1994))). We affirm.
The following facts are undisputed. The Ogle County Board
(board) met on September 17, October 15, and November 19, 1991, in
order to adopt the 1991 levy. The following are relevant excerpts
from the recorded minutes of each of those meetings:

"September 17, 1991
At 10:25 AM Rebecca Huntley moves to recess until October
15th at 9:00 AM
* * *
October 15, 1991
Chairman Daws calls the meeting to order at 9:20 AM. Gerald
Haye moves to adjourn the September meeting. Frank Danekas
seconds and the motion carries on a voice vote
* * *
At 12:30 PM, Ralph Hoekstra moves to recess until Tuesday,
November 19, 1991 at 9 AM
* * *
November 19, 1991
At 9:20 AM Chairman Daws calls the regular meeting to order.
Jerry Hay [sic] moves to adjourn the October board meeting."
During the November 19 meeting, the board adopted the 1991 county
budget and levy. ComEd paid its 1991 real estate taxes under
protest and on November 5, 1992, filed objections to plaintiff's
application for judgment on the 1991 real estate taxes. ComEd made
several objections. However, only objection 1(A) is at issue in
this appeal.
ComEd's objection 1(A) stated that the county's 1991 tax levy
was not approved at the September board meeting, or any adjourned
session thereof, as required by section 156 of the Act. See People
ex rel. Lunn v. Chicago Title & Trust Co., 409 Ill. 505, 515-16
(1951); Ill. Rev. Stat. 1991, ch. 120, par. 637. According to
ComEd, while the September session was adjourned to October, it was
not adjourned to November. The board erred because the minutes did
not reflect a vote to recess or adjourn the October meeting,
thereby continuing the September session to November. Thus, the
levy, when adopted at the November meeting, is void because it was
not adopted at the annual September session or any adjourned
session thereof.
On September 23, 1994, the trial court granted plaintiff's
motion to overrule ComEd's objection 1(A). The case was later
reassigned to a different judge who incorporated the previous
decision and ruled in favor of plaintiff on January 23, 1996.
ComEd thereafter filed this appeal.
ComEd's only contention on appeal is that, because the Ogle
County Board did not pass the 1991 tax levy at its annual September
session, the levy is void for noncompliance with the meeting
requirements of the Act. In response, plaintiff first argues that,
because the levy was adopted at a regular meeting of the board and
timely certified to the county clerk, it is valid under the Act.
In the alternative, plaintiff argues that, even if the board erred
in complying with the Act's meeting requirements, its actions do
not require the invalidation of the 1991 levy.
In a tax objection case, the objector, ComEd in this case,
bears the burden of proving facts to sustain its objection because
it is presumed that assessed taxes are legal. See In re
Application for Judgment & Sale of Delinquent Properties for the
Tax Year 1989, 167 Ill. 2d 161, 166 (1995). ComEd challenges the
board's actions under section 156 of the Act (Ill. Rev. Stat. 1991,
ch. 120, par. 637 (now 35 ILCS 200/18--10 (West 1994))). At the
time of the board's actions, section 156 stated in pertinent part:
"The county board of the respective counties containing
less than 1,000,000 inhabitants shall, annually, at the
September session, determine the amount of all county taxes
to be raised for all purposes. *** All counties shall
annually on or before the last Tuesday in December certify
to the county clerk the amounts that they require to be
raised by taxation." (Emphasis added.) Ill. Rev. Stat.
1991, ch. 120, par. 637.
The determination of "all county taxes to be raised for all
purposes" constitutes the county levy. In re Application for
Judgment, 167 Ill. 2d at 172. Once the levy is presented for
filing to the county clerk, "the act of levying by the local
governmental unit is complete." In re Application for Judgment,
167 Ill. 2d at 172. Importantly, "no error or informality in the
proceedings of any of the officers connected with the assessment,
levying or collection of the taxes, not affecting the substantial
justice of the tax itself, shall vitiate or in any manner affect
the tax or the assessment thereof." (Emphasis added.) Ill. Rev.
Stat. 1991, ch. 120, par. 716 (now 35 ILCS 200/21--185 (West
1994)).
In this case, we must first determine whether the Ogle County
Board adopted the levy at the September meeting, or any adjourned
session thereof. See Lunn, 409 Ill. at 516. The board meeting
minutes demonstrate that on September 17, 1991, a motion was made
to recess until October 15. While there is no evidence in the
record that a vote was taken on that motion, the annual September
session was recessed until October 15. On October 15, the
September session was formally adjourned after a motion and a voice
vote. Later, a motion was made to recess the October meeting until
November 19. However, the record demonstrates that the motion was
never voted upon. The absence of a vote to continue the October
session to November means that the September session was not
properly adjourned until November. On November 19, a motion to
adjourn the October meeting was made but never acted upon. The
board then adopted the Ogle County levy at the November 19 meeting.
Thus, the levy was not approved at the September session, or
any adjourned session thereof. The September session was formally
terminated on October 15 without being adjourned past that date,
and the levy was adopted on November 19. There was, therefore, an
error in the levying process because section 156 was violated. See
Ill. Rev. Stat. 1991, ch. 120, par. 637. However, because of the
obvious and strong public policy against invalidating otherwise
valid tax levies, not every procedural or parliamentary error is
cause to invalidate a levy. See Ill. Rev. Stat. 1991, ch. 120,
par. 716. Accordingly, we must next determine whether that error
affected the substantial justice of the levy and thereby vitiated
it. See Ill. Rev. Stat. 1991, ch. 120, par. 716.
It is well established that, when examining errors which could
possibly affect the substantial justice of a levy, courts liberally
construe the Act's provisions in order to respect the legislature's
intent. See People ex rel. Brockamp v. Brown, 261 Ill. 73, 77
(1913). For example, courts have disregarded procedural errors in
a variety of situations where there has been an attempt to comply
with the law and substantial justice was not affected by the
otherwise valid levy. See, e.g., Michigan Central R.R. Co. v.
Carr, 303 Ill. 354, 361 (1922) (property assessed in incorrect name
does not affect substantial justice of tax); Cincinnati,
Indianapolis & Western Ry. Co. v. People ex rel. Myers, 206 Ill. 565, 569-71 (1903) (parol evidence allowed to amend the record of
proceedings so as to not vitiate levy).
In this case, we fail to see how the board's parliamentary
error of not properly adjourning its September session has affected
the substantial justice of the levy. ComEd does not argue that the
board's November meeting was invalid or that the provisions of the
levy are illegal. In fact, as the trial court noted, ComEd does
not argue that it was prejudiced in any way by the board's actions.
Accord People ex rel. Kucharski v. McGovern, 42 Ill. 2d 119, 124
(1969) (objection to a levy should disclose injury caused by
levying process). The levy was presented to the county clerk "on
or before the last Tuesday in December," thereby preserving
ComEd's, and all other Ogle County taxpayers', right to be informed
of the tax system imposed. See Ill. Rev. Stat. 1991, ch. 120, par.
637; Ill. Rev. Stat. 1991, ch. 120, par. 638 (now 35 ILCS 200/18--
15 (West 1994)). While we certainly do not condone errors,
parliamentary or otherwise, which arise during the tax levying
process, we recognize that some mistakes will occur in such a
complicated governmental function. In this case, there is no
evidence in the record that the board was not attempting to comply
with the law. Additionally, there is a strong legislative
preference in favor of upholding levies that are otherwise legal
but for a parliamentary or procedural error. Thus, we find that
the board's error did not affect the substantial justice of Ogle
County's 1991 tax levy. Accordingly, the levy is valid.
We briefly note that ComEd's reliance on People ex rel. Dooley
v. New York, Chicago & St. Louis R.R. Co., 368 Ill. 536 (1938), is
misplaced. In Dooley, the McClean County Board met twice in
September 1935 without passing the county's 1935 levy. The second
September meeting was adjourned " 'subject to the call of the
chairman.' " Dooley, 368 Ill. at 538. The board reassembled on
November 26 at the chairman's call and adopted the levy. However,
the court held that the levy was invalid because the chairman did
not have the statutory authority to call a meeting on his own.
Dooley, 368 Ill. at 539. Rather, the meeting could only be called
by a request of at least one-third of the board's members.
Accordingly, the levy was illegal because the November 26 meeting
was itself illegal. Here, in contrast, all of the board's meetings
in this case were legal. ComEd does not, and cannot, argue that,
had the board's November actions occurred at the September meeting,
the levy would still be invalid. ComEd's only argument concerned
whether the levy was passed at the "September session," or any
adjourned session thereof. Thus, ComEd's argument is unpersuasive.
For the foregoing reasons, the judgment of the circuit court
of Ogle County is affirmed.
Affirmed.
GEIGER, P.J., and RATHJE, J., concur.