Village of Chatham v. County of Sangamon , 351 Ill. App. 3d 889 ( 2004 )

JUSTICE MYERSCOUGH,

dissenting:

I respectfully dissent. In determining that section 11 — 15.1 — 2 of the Municipal Code (65 ILCS 5/11 — 15.1 — 2 (West 2002)) “prevails,” the majority has rendered two Illinois statutes, section 11 — 13 — 1 of the Municipal Code (65 ILCS 5/11 — 13 — 1 (West 2002)) and section 5 — 1063 of the Counties Code (55 ILCS 5/5 — 1063 (West 2002)), invalid. I am troubled by such an “isolated” approach and by the majority’s dismissal of the County’s suggestion that the three seemingly conflicting statutes can be constructed in pari materia (the majority states: “We also note when a statute is not ambiguous, the rule of in pari materia is not applicable. Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 219, 447 N.E.2d 394, 398 (1983)” (351 Ill. App. 3d at 897). I agree with the County that the statutes at issue should be interpreted to mean that a municipality’s zoning power only becomes effective when the property is actually annexed, so that all the statutes involved are construed harmoniously and are given effect.

The doctrine of in pari materia is a long-established, fundamental statutory construction principle. “Under this doctrine of construction, two legislative acts that address the same subject are considered with reference to one another, so that they may be given harmonious effect.” Land v. Board of Education of the City of Chicago, 202 Ill. 2d 414, 422, 781 N.E.2d 249, 254 (2002). The United States Supreme Court, in United States ex rel. Chott v. Ewing, 237 U.S. 197, 200, 59 L. Ed. 913, 915, 35 S. Ct. 571, 572 (1915), was faced with two provisions, which, when “[ljooked at isolatedly,” had “absolute conflict between” them. The Court rejected the isolated approach and stated as follows: “[Ejven if the method of isolated consideration were not otherwise plainly a mistaken one, it follows that it cannot be adopted since it affords no possible solution of the controversy.” Ewing, 237 U.S. at 200, 59 L. Ed. at 915, 35 S. Ct. at 572. The Court then held: “[S]uch solution must therefore be sought by following the elementary rules, that is, by turning primarily to the context of the section and secondarily to provisions in pari materia as affording an efficient means for discovering the legislative intent in enacting the statute thereby vivifying and enforcing the remedial purposes which it was adopted to accomplish.” Ewing, 237 U.S. at 200, 59 L. Ed. at 915, 35 S. Ct. at 572. The Court’s holding in Ewing fully applies here.

In the instant case, we have three Illinois statutes that appear to be in conflict, and to hold one valid would, in essence, repeal the others. The majority chose to uphold the validity of section 11 — 15.1 — 2 of the Municipal Code while rejecting section 11 — 13 — 1 of the Municipal Code (65 ILCS 5/11 — 13 — 1 (West 2002)) and section 5 — 1063 of the Counties Code (55 ILCS 5/5 — 1063 (West 2002)). The majority relied on Kozak, 95 Ill. 2d 211, 447 N.E.2d 394, to ignore the doctrine of in pari materia set forth above by the United States Supreme Court and the Supreme Court of Illinois, stating “[w]e also note when a statute is not ambiguous, the rule of in pari materia is not applicable. [Citation.]” 351 Ill. App. 3d at 897. Such reliance is misplaced as the statute here, section 11 — 15.1 — 2 of the Municipal Code (65 ILCS 5/11 — 15.1 — 2 (West 2002)), is not clear and unambiguous.

The Supreme Court of Illinois stated in People v. Jameson, 162 Ill. 2d 282, 288, 642 N.E.2d 1207, 1210 (1994), a statute is ambiguous if it “is capable of being understood by reasonably well-informed persons in two or more different senses.” As we know, ambiguity is of a dual nature: it may be either patent or latent. A patent ambiguity arises out of the words themselves, while a latent ambiguity arises out of the results of a literal application of the words. In Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 340, 504 N.E.2d 84, 86 (1987), for example, the Supreme Court of Illinois held that a statute may contain a latent ambiguity. A latent ambiguity arises “ ‘where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ (Black’s Law Dictionary 102 (3d ed. 1933).)” Hoglund v. State Farm Mutual Automobile Insurance Co., 148 Ill. 2d 272, 279, 592 N.E.2d 1031, 1035 (1992).

In the instant case, section 11 — 15.1 — 2 of the Municipal Code (65 ILCS 5/11 — 15.1 — 2 (West 2002)) may be interpreted two ways: a village has the zoning jurisdiction over any property with which the village enters annexation agreements (as the majority did) or a municipality’s zoning power only becomes effective when the property is actually annexed. The fact that there are two possible interpretations of the statute renders it latently ambiguous, and we should apply the principle of in pari materia to determine the correct interpretation.

Last, I note the majority stated that “[t]he legislature’s current statutory provisions compelled the results in this case” (351 Ill. App. 3d at 904) and “[Reconciling these competing considerations is most properly left to the legislature and not this court” (351 Ill. App. 3d at 904). The majority, however, placed itself in the role of the legislature when it declared that one statute prevailed over the other two “conflicting” statutes. The majority’s holding also violates the statutory construction principles as stated by the Supreme Court of Illinois in State v. Mikusch, 138 Ill. 2d 242, 247-48, 562 N.E.2d 168, 170 (1990): “It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments. [Citation.] It is further presumed that the legislature will not enact a law which completely contradicts a prior statute without an express repeal of it and that statutes which relate to the same subject are to be governed by one spirit and a single policy” and “it is not unusual for two or more bills to be passed at the same session of the legislature which pertain to the same subject. For the later enactment to operate as a repeal by implication of the earlier one, therefore, there must be such manifest and total repugnance that the two cannot stand together. A construction, if possible, of the two statutes which allows both to stand will be favored.” For these reasons, I would reverse the trial court.