by Robert A. Smart General Counsel

Inquiry has been made with respect to the possibility of printing in this column opinions which have been rendered on specific questions to member park districts by your General Counsel. General Counsel's opinions to specific questions from certain park districts were formerly printed in this column. However, because of certain Bar Association rulings at that time, the Illinois Association of Park Districts, as well as the Municipal League and other associations, were required to eliminate such publication. However, if possible, your General Counsel would like to work out some type of procedure which would permit the answering through this column of specific questions asked by or through individual member park districts in the future. R.A.S.

RECENT DECISIONS

Board of Education School District No. 150 vs. City of Peoria (363 Northeastern 2nd 648)

The Appellate Court Third District in Case No. 76-532 in its decision rendered under date of May 31, 1977 held that a city acting as a home rule unit did not have jurisdiction to regulate the Peoria School District under the constitutional provision authorizing a home rule unit to exercise any power in performing any function pertaining to its government and affairs.

This was an appeal from a declaratory judgment entered by the Circuit Court of Peoria County which declared that the City of Peoria did not have jurisdiction under a Fair Employment Practices Ordinance and an ordinance establishing a Fair Employment Housing Commission to regulate the employment practice of the Plaintiff School District No. 150. The trial court permanently enjoined Defendant City from exercising any of the regulatory powers provided by its ordinances as to the Plaintiff School District.

The Court in determining the basic question as to whether the employment practices of a school district are subject to regulation by a city operating under home rule powers stated:

". . . In directing our attention to this question we deem it important to note that the Plaintiff School District's boundaries are not coterminous with those of the Defendant City of Peoria . . . The establishment, maintenance and control of education in Illinois has long been fulfilled and accomplished under the auspices of our state government . . .

"In our judgment we harbor serious doubts concerning the application of the ordinances in question since it is extremely difficult, if not impossible, to feel that they pertain to government and affairs of the Defendant City of Peoria within the meaning and intent of Section 6 (a) (Ill. Constitution 1970 Article VII, Section 6 (a)). We, however, need not make such a broad determination in the instant case since the ordinances or violations of another rule of law are established by our Supreme Court, to-wit:

" 'That to permit a regional district to be regulated by a part of that region is incompatible with the purpose for which it was created.' (Metropolitan Sanitary District of Greater Chicago vs. City of Des Plaines (1976, 63 Ill. 2nd 256, 347 Northeastern 2nd 716)"

* Note: While the impact of this decision is directed to the question pertaining to the authority of home rule units, the principle set forth therein may well be applicable to the question of whether or not a municipal government may regulate by its ordinances the conduct, rules and regulations of a park district. Most certainly it could be argued that the principle was applicable when a portion of the district lay outside of the municipality and was not coterminous with it.

Terry Morrison vs. Community Unit School District No. 1, Payson, Illinois, et al. (358 Northeastern 2nd 389 Appellate Court of Illinois 4th District 12456).

In a decision rendered by the Appellate Court of Illinois, Fourth District, December 16, 1976, the Court held a school district immune from liability for acts of negligence unless established by an allegation and proof of wilful and wanton misconduct. In this case the Circuit Court had directed a verdict at the close of all the evidence in favor of the Defendant School District in a personal injury

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action involving the drowning of a member of the swim club in a swimming pool operated by the District. Joined as a party defendant was a private swim club. The Court in its holding provided that as to the unit of government wilful and wanton misconduct must be alleged and proved. The portion of the order for directed verdict relating to the Defendant Club, however, was reversed and cause remanded for new trial. Affirmed in part. Reversed in part.

Commonwealth Edison Company vs. Community Unit School District No. 200, DuPage County, Illinois vs. City of Wheaton, Nos. 75-186 to 75-189, 2nd District, Appellate Court of Illinois. Rehearing denied January 20, 1977.

In these cases the Utilities filed suits against the School District to recover charges pursuant to which Utilities passed occupation tax on to customers. District filed declaratory judgment action challenging constitutionality of ordinance and the enabling statute. Circuit Court entered judgment for Utilities dismissing the declaratory judgment action and the District appealed.

The Appellate Court held that inasmuch as the tax was levied upon Utilities and not upon the School District state funds were not being taxed on the theory that the District was the taxpayer and the ordinance which merely taxed the Utilities business in the city had no unauthorized extraterritorial effect. Judgment affirmed.

Appellant had made the argument that since the burden of the tax imposed upon the utility is passed on to it, it is the actual "taxpayer." While the Court recognized the principle that "in general, districts which are state agencies may not be taxed by municipalities (16 McQuillan, Municipal Corporations, Section 44.56), however, taxes passed on to exempt bodies in the form of higher prices are not necessarily invalid ..."

1976 Opinions, Attorney General No. S-1178. In an opinion written by the Office of the Attorney General the Attorney General ruled that park district officials may not use district funds to campaign for the passage of certain bonding referenda; officials who knowingly expend funds without authority would be subject to the penalties provided under 111. Rev. Stats. 1975, Ch. 38, Sec. 33-3.

*Note: Contrary to the opinion of the Attorney General, it would seem to be the obligation of the park district officials to inform the general public with respect to the facts involved in connection with certain bonding referenda. It would further seem most logical to assume that the park district officials would be obligated to advise the general public of their support of any such referenda and the issues presented to the residents of the district.

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ILLINOIS TAX FACTS

by MAURICE W. SCOTT
Executive Vice President

As I write this last Tax Facts column as Executive Vice President to the Taxpayers' Federation of Illinois, I would like to make the following comments, for what they are worth, relative to taxation and the Illinois Legislative process:

Annual Sessions—Serious thought should be given to going back to biennial sessions of the General Assembly. Annual sessions are too costly, involve the consideration of too many bills, are confusing to the practicing lawyer and to the public in not knowing what the latest law is, and cause too great a turnover among Legislators. If this is not feasible, the session of the General Assembly in odd numbered years should be a six-month general session, and the session in even numbered years should be of 60 days duration, limited to budgetary matters only. The Legislature could do the latter by rules that are adhered to, and proof of this statement is what the General Assembly did this year in sticking to its deadline rules.

Income Tax Ratio—Some of the public and a number of Legislators should forget about abolishing the 8 to 5 ratio in the Constitution on the State Income Tax rates. This provision, for which this writer led the fight to insert into the State Constitution as a delegate to the Convention in 1970, has struck a balance between the individual and corporate rates, has kept the Income Tax within bounds, and has caused other States to study and review the Illinois law.

Limit on Spending-lf State spending is ever to be adequately controlled, serious thought has to be given to limiting such spending to the productive income measurement of the people of Illinois. In other words, total State taxes should be limited to a certain percentage of the personal income of Illinois, with an established emergency fund to take care of emergencies. In this regard, Constitutional Amendment Proposal HJR 22 before the current session of the General Assembly is more than worthy of consideration.

Property Tax Commission—This writer is not too great an advocate of Legislative Commissions (there are too many), but there should be a continuing, small Legislative Commission to study and recommend to the Legislature relative to property tax improvement and reform. There are problems in assessments, multipliers, hearings and review, and property tax limits. As to tax limits, occasional adjustments have to be made in certain limitations, but in the main, taxpayers should have the direct referendum right on increasing rate limits and not the back door process, which in many instances is no protection at all.

Labor and Industry—What our State needs is "jobs and more jobs." In Illinois, we have the labor supply, transportation, power, climate and central location to provide these jobs, but what we need is a closer working relationship between labor and capital. There have been times when capital exercised greater weight, and there have been times when labor carried greater weight. But one can not prosper without the other doing well, too. What is definitely needed is a greater working together, an "agreed process" in some legislation and other procedures that will lead to this common goal.

Continued on Page 13

Illinois Parks and Recreation 9 Septmber/October, 1977

Conclusion-If you have read this far, and I hope that you have, may I take a moment to thank our Board of Trustees, Committees and members for their support and guidance, the local government officials for the opportunity to work together in solving taxation problems, my staff members (past and present) for their good work and attitude, and last but not least, the Illinois General Assembly members during the past 31 years. No witness was ever treated fairer and better than I before committees and in consultation with Legislative members. Though we did not always agree, we did reach some good, mutual conclusions on many weighty problems. This work has been so satisfying to me and is the reason why I would place the Illinois Legislative process at the top of the ladder. May my successor, Douglas L. Whitley, and his staff have the same cooperation and results.

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