In re Application of DuPage County Collector

No. 3--97--0603
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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re APPLICATION OF THE ) Appeal from the Circuit Court
DU PAGE COUNTY COLLECTOR, for ) of Du Page County.
Judgment and Order of Sale )
Against Real Property Returned )
Delinquent for Nonpayment of )
Taxes for the Year 1993 )
and for Judgment Fixing the ) No. 94--TX--10029
Correct Amount of Any Tax Paid )
Under Protest for the Year 1993 )
)
(Du Page Airport Authority, )
Intervenor-Appellee, v. Robert ) Honorable
Pryor, et al., Objectors- ) John W. Darrah,
Appellants). ) Judge, Presiding.
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JUSTICE HUTCHINSON delivered the opinion of the court:
Several objectors filed an application for judgment for
delinquent 1993 real estate taxes and for judgment for 1993 taxes
paid under protest. The objections encompassed many districts, but
only issues concerning intervenor, Du Page Airport Authority
(Airport), are presented in this appeal. In the trial court, the
objectors argued that the tax levied by the Airport was unlawful
because the Airport did not adopt its levy by the second Tuesday in
August. The parties filed cross-motions for summary judgment and
the court entered judgment in favor of the Airport. The court also
found that there was no just reason to delay the enforcement or
appeal of the judgment. See 134 Ill. 2d R. 304(a). The objectors
timely appeal arguing that the trial court erred in concluding that
the Airport had passed the levy within the allotted statutory time.
We affirm.
Summary judgment should be granted when "the pleadings,
depositions, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law." 735 ILCS 5/2--1005(c) (West 1996). When all parties seek
summary judgment, the trial court is invited to decide the issues
presented as a matter of law, and the entry of summary judgment for
one party or the other is proper. Hubble v. O'Connor, 291 Ill.
App. 3d 974, 979 (1997). We review a grant of summary judgment de
novo. McNamee v. State of Illinois, 173 Ill. 2d 433, 438 (1996).
Here, the parties agree that no question of fact exists and
that resolution of the issue on appeal depends on the interpretation
to be accorded section 13 of the Airport Authorities Act (70 ILCS
5/13 (West 1996)). Section 13 requires an airport authority's board
of commissioners to adopt, during the first quarter of the fiscal
year, an appropriation ordinance to pay the costs of operating and
maintaining the airports within the authority's corporate limits.
70 ILCS 5/13 (West 1996). Section 13 also provides:
"After the adoption of the appropriation ordinance and on
or before the second Tuesday in August of each year, the board
of commissioners shall ascertain the total amount of the
appropriations legally made which are to be provided for from
the tax levy for that year. Then, by an ordinance specifying
in detail the purposes for which such appropriations have been
made and the amounts appropriated for such purposes, the board
of commissioners shall levy not to exceed the total amount so
ascertained upon all the property subject to taxation within
the authority as the same is assessed and equalized for state
and county purposes for the current year." 70 ILCS 5/13 (West
1996).
The objectors contend that section 13 requires the board to
adopt the levy by the second Tuesday in August. They conclude that,
since the board did not adopt the levy until October, the tax levied
is void. The Airport contends that the deadline in section 13
requires only that, by that date, the board has ascertained the
amount of the appropriations that the levy will provide. The
Airport further argues that the statute is silent with respect to
an exact date by which the board must adopt the levy. The parties
agree that, if the board did not have to adopt the levy by the
second Tuesday in August, the tax was validly enacted. The parties
also agree that, if the board had to adopt the levy ordinance by
the second Tuesday in August, the tax is void. See People ex rel.
Haas v. Amax Zinc Co., 130 Ill. App. 3d 580, 584 (1984) (a levy is
void if it is adopted after the time prescribed by the statute
authorizing it). The parties frame the issue raised as one of first
impression, and our independent research has revealed no other case
that has addressed this issue.
We turn now to the question whether the legislature intended
to require the board to adopt the levy by the second Tuesday in
August. In so doing, we are guided by the general principle that
the legislative intent of a statute is best determined from the
plain and ordinary meaning of the statutory language. People v.
Wittenmyer, 151 Ill. 2d 175, 195 (1992). Where the language is
clear and unambiguous, we must apply it as written. Wittenmyer, 151 Ill. 2d at 195. We also note that objectors "bear the burden of
proving 'the invalidity of the tax levy since the presumption is
always that the taxes have been legally levied.' " In re
Application of Du Page County Collector, 294 Ill. App. 3d 868, 870
(1998) quoting People ex rel. Redfern v. Penn Central Co., 47 Ill. 2d 412, 418 (1971).
Here, section 13 clearly requires that, by the second Tuesday
in August, the board of commissioners must have ascertain[ed] the
total amount of the appropriations legally made which are to be
provided for from the tax levy for that year. 70 ILCS 5/13 (West
1996). The next sentence begins: "Then, by an ordinance ***." 70
ILCS 5/13 (West 1996). We believe that a plain and ordinary reading
of the statute reveals a two-step process. First, the board must
ascertain the amounts to be levied. Then, the board must adopt the
levy. The purpose of the levy is to levy a tax in the amount that
the board has ascertained must be raised by taxation. People ex
rel. Chadwick v. Sergel, 269 Ill. 619, 622 (1915). Clearly then,
the ordinance adopting the levy must follow the ascertainment.
Section 13 provides a clear deadline by which the board must
ascertain the amount to be raised by taxes. The sentence relating
to the adoption of the levy contains no such deadline. Moreover,
it is clear that the levy's adoption must occur after the board has
ascertained the amount of money to be raised by taxation. Had the
legislature intended for a deadline to apply to the levy's adoption,
it could have easily done so. Instead, the statute is silent about
when the board must adopt the levy. The law is well established,
however, that, if a statute does not establish the time by which the
levy must be adopted, the adoption must occur before the taxing body
is required to certify to the county clerk the amounts that have
been levied. People ex rel. Heuer v. Chicago, Burlington & Quincy
R.R. Co., 377 Ill. 470, 481 (1941). Here the board had to certify
the amounts by the last Tuesday in December. 35 ILCS 200/18--15
(West 1996). Since the parties agree that the board adopted the
levy before that time and that the levy was properly certified, we
have no basis to disturb the trial court's judgment.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
INGLIS and COLWELL, JJ., concur.