                                        2018 IL App (1st) 170875


                                                                            FIRST DISTRICT
                                                                            FOURTH DIVISION
                                                                            December 20, 2018


No. 1-17-0875


                                                                )   Appeal from the
IWAN RIES & CO., an Illinois Corporation; CIGAR                 )   Circuit Court of
ASSOCIATION OF AMERICA, INC., a New York                        )   Cook County
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,                                   )   No. 16 L 50356
                                                                )
                Plaintiffs-Appellees,                           )
                                                                )
v.                                                              )
                                                                )
THE CITY OF CHICAGO and ERIN KEANE, in Her                      )
Capacity as the Comptroller of the Department of Finance        )   Honorable
Within the City of Chicago, Illinois,                           )   Ann Collins-Dole,
                                                                )   Judge Presiding.
                Defendants-Appellants.                          )
                                                                )


       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
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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 (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



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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 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.



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¶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



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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. 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



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       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



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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.” 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



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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.” (Emphasis 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



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construction must be given to each word, clause, and sentence of a statute, and no term should 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



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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.) Ill. Rev. Stat. 1989, ch. 24, ¶ 8-11-6a.

¶ 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



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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 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



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       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



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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 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



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        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



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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 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.



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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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