26 N.E.2d 862 | Ill. | 1940
This is an appeal from a decree of the circuit court of Cook county which dismissed a resident taxpayer's petition for an injunction. The petition asked that certain county officials be restrained from entering into a contract and expending public funds to cause a notice to be published in proceedings to confirm 1940 tax levies. The notice referred to is required to be published in the proceedings provided by Senate Bill No. 7 of the Sixty-first General Assembly. Laws of 1939, p. 848; Ill. Rev. Stat. 1939, chap. 120, pars, 812-822.
We held a similar 1937 act unconstitutional in Griffin v.County of Cook,
The material changes in the act are that this statute vests jurisdiction in the circuit instead of the county court. It prescribes specific dates for filing the tax levy ordinances with the county clerk, for his petition, the publication of the notice, the return day, and for filing objections. In the 1937 act these dates were, for the most part, dependent on the happening of antecedent acts.
In addition to the State of Illinois which is excepted, only the county of Cook, the city of Chicago, the board of education of that city, the Chicago Park District, the Sanitary District of Chicago and the Forest Preserve District of Cook county contain the required population of 500,000 inhabitants. Other legislation has been adopted since the Griffin case was decided, and now all levy ordinances in these six districts have to be adopted not later than March 28.
In spite of the various amendments of various acts and the changes wrought in the 1939 act before us, appellant contends that this act deprives taxpayers of due process of law in violation of the State and Federal constitutions. Due process of law requires notice to the defendant and an opportunity to be heard in the protection and enforcement of his rights. (Griffin
v. County of Cook, supra.) In Winona St. Peter Land Co. v.Minnesota,
In spite of the changes, the 1939 act, like that of 1937, is wanting in due process. All that a defendant, when served with summons in an action in debt for personal property tax, or a taxpayer whose property was involved in the collector's application for judgment and order of sale for delinquent taxes, would learn, would be that his defenses had been adjudicated or barred by the earlier judgment obtained against him in the confirmation proceeding. So far as personal property taxes are concerned this amounts to obtaining a judgment in personam without personal service or sufficient notice. This statute does not afford due process of law, because of this fact.
Another insurmountable difficulty is that section 5 requires that objections be filed by April 30, and provides: "If the objector desires to raise any question concerning the amount of the maximum tax rate for any municipal corporation,quasi-municipal corporation or taxing body, or whether any levy is within or without a tax rate limit he *522 shall likewise set forth in his written objections facts in support of his contention." Section 7 provides that if such objections are before the court the order entered shall include a finding as to what the maximum rate is and whether the levy in question is within or without the maximum legal rate and if these objections are not filed they are, by section 9, forever barred. The question whether the tax rate will exceed constitutional or statutory limits cannot be determined until the final assessment and valuation of property is made and returned through the action of the assessors, the appeal board of Cook county and the State Tax Commission. This comes much later in the year than April 30. Objectors could not know then whether or not the levy is in excess of statutory and constitutional maximum tax rates. Due process of law contemplates that there will be given a reasonable opportunity to be heard in defense, and this provision also deprives the taxpayer of his property without due process of law. It is no answer to argue that we should construe the act to mean that only such objections as can be filed must be filed on April 30. We cannot change this statute and write in the additional words, or create an exception of objections specifically dealt with and barred forever if not filed under the provisions of this act. We are of the opinion that without these provisions the legislature would not have adopted this act and that it is invalid for the reasons stated.
The appellant cites numerous authorities in support of other cogent reasons for declaring this act unconstitutional and void, but we need not state those contentions at length or discuss them. The act is unconstitutional.
The decree of the circuit court of Cook county is reversed and the cause is remanded, with directions to overrule the motion to dismiss, and for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded, with directions.
Mr. CHIEF JUSTICE WILSON, dissenting. *523