Iwan Ries & Co v. The City of Chicago , 2018 IL App (1st) 170875 ( 2019 )

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Iwan Ries & Co. v. City of Chicago, 2018 IL App (1st) 170875Appellate Court IWAN RIES & CO., an Illinois Corporation; CIGAR ASSOCIATION
Caption OF AMERICA, INC., a New York Corporation; ILLINOIS
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.
District & No. First District, Fourth Division
Docket No. 1-17-0875
Filed December 20, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-50356; the
Review Hon. Ann Collins-Dole, Judge, presiding.
Judgment Reversed.
Counsel on Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
Appeal Solomon, Myriam Zreczny Kasper, and Irina Y. Dmitrieva, Assistant
Corporation Counsel, of counsel), for appellants.
Stanley R. Kaminski, Amy E. McCracken, and Elinor H. Murárová, of
Duane Morris LLP, of Chicago, for appellees.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
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.
¶2 BACKGROUND
¶3 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).
¶4 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.
¶5 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
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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
¶9 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).
¶ 10 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.
¶ 11 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.
¶ 12 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.
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Seiden, 2016 IL App (1st) 141984, ¶ 12. When, as here, parties file cross-motions for summary
judgment, they agree that no genuine issues of material fact exist and they invite the court to
decide the case as a matter of law based on the record. Casey’s Marketing Co. v. Hamer, 2016
IL App (1st) 143485, ¶ 11. We review a circuit court’s decision to grant summary judgment
de novo. Illinois Tool Works Inc. v. Travelers Casualty & Surety Co., 2015 IL App (1st)
132350, ¶ 8. As the principal issue we are asked to resolve necessarily involves matters of
statutory construction, we also observe our review in that regard is de novo. Stasko v. City of
Chicago, 2013 IL App (1st) 120265, ¶ 31. De novo consideration means we perform the same
analysis that a trial judge would perform. Midwest Gaming & Entertainment, LLC v. County of
Cook, 2015 IL App (1st) 142786, ¶ 46.
¶ 13 To determine whether or not the City’s home rule authority to enact the ordinance is
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.,
2011 IL 111127:
“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.” Id. (citing 4 Record of Proceedings, Sixth Illinois Constitutional Convention 3052).
¶ 14 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, 2013 IL 110505, ¶ 30. Furthermore, the constitution expressly provides
that the “[p]owers and functions of home rule units shall be construed liberally.” Ill. Const.
1970, art. VII, § 6(m).
¶ 15 The General Assembly, however, “may *** preempt the exercise of a municipality’s home
rule powers by expressly limiting that authority.” Palm, 2013 IL 110505, ¶ 31. Under article
VII, section 6(h), “[t]he General Assembly may provide specifically by law for the exclusive
exercise by the State of any power or function of a home rule unit other than a taxing power.”
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Ill. Const. 1970, art. VII, § 6(h). With respect to the power to tax, “[t]he General Assembly by
a law approved by the vote of three-fifths of the members elected to each house may deny or
limit the power to tax and any other power or function of a home rule unit not exercised or
performed by the State.” Ill. Const. 1970, art. VII, § 6(g).
¶ 16 “If the legislature intends to limit or deny the exercise of home rule powers, the statute
must contain an express statement to that effect.” Palm, 2013 IL 110505, ¶ 31. If the legislature
does not do so, article VII, section 6(i), provides that “[h]ome rule units may exercise and
perform concurrently with the State any power or function of a home rule unit to the extent that
the General Assembly by law does not specifically limit the concurrent exercise or specifically
declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i). Thus, the Illinois
Constitution provides home rule units with the same powers as the sovereign, except when
those powers are limited by the General Assembly. City of Chicago v. Roman, 184 Ill. 2d 504,
513 (1998) (citing Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 230 (1989)). Our supreme
court has “consistently recognized that the home rule provisions of the Illinois Constitution are
intended to ‘eliminate or at least reduce to a bare minimum the circumstances under which
local home rule powers are preempted by judicial interpretation of unexpressed legislative
intention.’ ” (Internal quotation marks omitted.) Palm, 2013 IL 110505, ¶ 34 (quoting Scadron
v. City of Des Plaines, 153 Ill. 2d 164, 186 (1992)); see also Schillerstrom Homes, Inc. v. City
of Naperville, 198 Ill. 2d 281, 288 (2001); Roman, 184 Ill. 2d at 516.
¶ 17 In this instance, the parties agree that the legislature granted the City, a home rule unit, the
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, 2013 IL App (1st) 120265, ¶ 31.
¶ 18 The fundamental objective of statutory construction is to ascertain and give effect to the
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
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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, 234 Ill. 2d 503, 511 (2009). A court may
not depart from the plain statutory language by reading into it exceptions, limitations, or
conditions not expressed by the legislature. In re Estate of Ellis, 236 Ill. 2d 45, 51 (2009).
“Where statutory language is clear and unambiguous, it will be given effect without resort to
other aids of construction.” Bettis v. Marsaglia, 2014 IL 117050, ¶ 13.
¶ 19 “An examination of the validity of home rule authority requires the court to determine
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, 299 Ill. App. 3d 450, 460 (1998). In this case, there is no question as to whether the
ordinance is related to the City’s government and affairs, rather the primary issue is whether
section 8-11-6a(2) of the Municipal Code preempts the City’s home rule authority to tax other
tobacco products.
¶ 20 We begin by reviewing the history of the relevant provision of the Municipal Code as we
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).
¶ 21 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.¶ 22 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.) Id. Thus, beginning on September
1, 1990, a home rule municipality, such as the City, was allowed to impose a tax based on the
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selling or purchase price or gross receipts from the sale of cigarettes or tobacco products. See
id.¶ 23 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, 2017 IL App (1st) 152135,
¶ 14), it is evident that the legislature intended to create broad descriptions for the categories in
section 8-11-6a. For example, when describing places of accommodations, the legislature
employed the phrase “hotel or motel room or similar facility.” Ill. Rev. Stat. 1989, ch. 24,
¶ 8-11-6a(3). The legislature also used the word “or” to put together different transactions
involving real property. Id. ¶ 8-11-6a(4). Likewise, “cigarettes or tobacco products” is a wide
category that describes goods that contain nicotine. A tenant of statutory construction is that “a
word or phrase that is repeated in a statute is presumed to have the same meaning throughout.”
Borg v. Village of Schiller Park Police Pension Board, 111 Ill. App. 3d 653, 657 (1982). Thus,
the legislature’s original inclusive use of the word “or” in section 8-11-6a created broad
categories where home rule units could impose taxes on the property stated in the seven
exceptions.
¶ 24 In addition, our case law supports the conclusion that the word “or” can be used in an
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, 2017 IL App (1st) 152135, ¶ 14 (“In interpreting a statute, we must
view the statute as a whole, making sure not to read any of its language in isolation.”). In this
case, the circuit court concluded the “or” was used in the exclusive or disjunctive sense, relying
on the case of People v. Frieberg, 147 Ill. 2d 326 (1992). We initially observe that Frieberg
involved the interpretation of a criminal statute, but regardless, it did set forth the general
proposition that, “As used in its ordinary sense, the word ‘or’ marks an alternative indicating
the various members of the sentence which it connects are to be taken separately.” Id. at 349
(citing People v. Vraniak, 5 Ill. 2d 384 (1955); Campbell, 15 Ill. 2d 308). While we do not
disagree with this proposition, it is also true that “or” can mean “and” when considered in
context to effectuate the legislature’s intent.
¶ 25 To this end, we find the cases cited by the City to be instructive, as in those cases the
reviewing courts examined the context in which the word “or” was employed to interpret the
legislature’s intent. See Apex Oil Co. v. Henkhaus, 118 Ill. App. 3d 273 (1983); Thoman v.
Village of Northbrook, 148 Ill. App. 3d 356 (1986). In Apex Oil Co., the plaintiff, a sublessee
of a tract of land that was leased to the Tri-City Port District of Madison County, Illinois (Port
District), from the United States of America, brought an action for declaratory judgment and
injunctive relief against certain officials of Madison County regarding the assessment and
collection of property taxes. Apex Oil Co., 118 Ill. App. 3d at 274-75. While the plaintiff
subleased the land and had erected six storage tanks thereon, two other storage tanks present on
the property were owned by the Port District. Id. at 275. In 1979, the value of the plaintiff’s
leasehold was assessed to include the value of the leasehold estate as well as the improvements
thereon, including the two storage tanks owned by the Port District. Id. at 275-76. The plaintiff
disagreed with the assessment calculation and maintained that the taxes were not authorized on
both the value of the leasehold and the improvements owned by others. Id. at 276. In
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considering this claim, the reviewing court construed the language of the section 19.19 of the
Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, ¶ 500.19), which read in pertinent part:
“ ‘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.
¶ 26 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.
¶ 27 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.” Id. at 357-58. The plaintiff
argued that based on this construction, the exemption was not intended to apply to any
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governmental body but was only intended to apply to certain employees or officials of those
governmental bodies. Id. at 358.
¶ 28 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.” Id. at 359.
¶ 29 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.
¶ 30 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.
¶ 31 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
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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, 2017 IL App (1st) 161574,
¶ 26 (employing the “commonly understood principles of grammar and usage” to interpret a
statute). Reading section 8-11-6a(2) in its entirety, it follows that the legislature intended for a
home rule municipality to be able to tax cigarettes or tobacco products so long as the home rule
municipality had “a tax” in place on either “cigarettes or tobacco products” prior to July 1,
1993. (Emphasis added.) 65 ILCS 5/8-11-6a (West 2016).
¶ 32 We conclude that because the City had enacted a tax on cigarettes prior to July 1, 1993, it
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.
¶ 33 CONCLUSION
¶ 34 The judgment of the circuit court of Cook County is reversed.
¶ 35 Reversed.
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