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                                   Appellate Court                           Date: 2019.03.28
                                                                             10:42:31 -05'00'



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



Appellate 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


                                                   -2-
       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.

                                                    -3-
       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.”

                                                    -4-
       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

                                                     -5-
       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


                                                     -7-
       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


                                                   -8-
       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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