Giebelhausen v. DaleyGiebelhausen v. Daley
delivered the opinion of the court:
At the November term, 1949, of the Sangamon County circuit court, plaintiff, Edward C. Giebelhausen, filed a petition for leave to bring a suit in equity, in accordance with “An Act in relation to suits to restrain and enjoin the disbursement of public moneys by officers of the State,” to enjoin the Director of Revenue, the Director of Finance, the Auditor of Public Accounts, and the State Treasurer, all of the State of Illinois, from disbursing money, or incurring any expenses, by virtue of two certain acts of the General Assembly, enacted at the 1949 session thereof, and thereupon the circuit judge of said county entered an order permitting the plaintiff to file such complaint, which was accordingly filed and service of process had upon all of said defendants.
The defendants made a motion to dismiss the complaint on the ground that it is substantially insufficient in law, and upon a hearing the court sustained the motion and entered a decree that the complaint of the petitioner be dismissed, with prejudice, for want of equity.
As the title suggests, the amendatory act makes changes necessary to incorporate into the Revenue Act provisions for a county assessment supervisor “in each county of less than 500,000 population, which does not have an elected board of assessors.” The several sections of the 1939 Revenue act enumerated in the title (not repealed) are changed and amended so as to accommodate the language thereof to new sections 2, 2a, 2b and 2c. Other substantial changes are made extending the power of the county assessment supervisor and diminishing the power of township and county assessors, referred to in more detail hereafter.
The amended sections just referred to are as follows:
Ҥ 2. The office of county assessment supervisor is established in each county of less than 500,000 population which does not have a board of assessors as provided for by this Act and the offices of county assessor and county supervisor of assessments in such counties are abolished. During December, 1949 in each such county and during September,
“The county assessment supervisor shall hold no other lucrative public office or public employment and shall receive annual compensation as follows: In counties of less than 10,000 population, $2,000; in counties of 10,000 or more but less than 25,000 population $2,750; in counties of 25,000 or more but less than 50,000 population, $3,500; in counties of 50,000 or more but less than 75,000 population, $4,000; in counties of 75,000 or more but less than 100,000 population, $4,750; and in counties of 100,000 or more population, $6,000. The salary of each county assessment supervisor shall be paid by the State, on the warrant of the Auditor in monthly installments, and the expenses of travel by the county assessment supervisor to and from state-wide meetings of assessment officials sponsored by the Department shall also be paid from state funds on the warrant of the Auditor.
“The county board shall provide necessary office space for the county assessment supervisor and except as otherwise provided in this Act, shall provide for the payment of all necessary expenses of the office out of the county treasury.
“Upon the appointment and qualification of the first county assessment supervisor, all records, books and papers heretofore pertaining to the office of county assessor or county supervisor of assessments shall be delivered to the county assessment supervisor.
Ҥ 2a. In counties under township organization having a county assessment supervisor, the township assessor shall be ex officio deputy assessor under the county assessment supervisor and shall assist him in making the assessments
“The compensation of the township assessor shall be as follows: In townships containing less than 14,000 inhabitants they shall receive not less than five dollars ($5.00) per day; but additional compensation may be allowed, making their entire compensation a sum not exceeding one thousand dollars ($1,000.00); and in townships containing 14,000 or more inhabitants, they shall receive a sum not exceeding five thousand dollars ($5,000.00) per annum. In townships containing 20,000 or more inhabitants the township assessor shall pursue no other gainful occupation. The compensation of township assessors within the limits herein provided shall be fixed by the board of town auditors and shall be based upon the time actually employed and such assessors shall make affidavit as to the time so employed. In addition to their compensation, assessors shall also receive travel and transportation expenses, the amount of which shall be determined by the board of town auditors. Such compensation and expenses shall be paid out of the town treasury.
Ҥ 2b. The county assessment supervisor may appoint one or more suitable persons to act as deputy assessor to assist him in making assessments and such deputy shall take and subscribe an oath of office honestly and faithfully to perform all the duties of the office under the direction of the county assessment supervisor. Such deputy shall have power to administer all oaths authorized by law to be administered by assessors. On or before the first day of April in each year the county assessment supervisor shall assemble all deputy assessors, including township assessors,
“§ 2c. Each county assessment supervisor shall prepare and maintain in accordance with rules and procedures prescribed by the Department, tax maps and up-to-date lists of property owners’ names and addresses and property record cards for all of the real estate in the county and shall procure at regular intervals from the records maintained by the county recorder information relating to transfers of real property; provided that he shall not duplicate the work of any full-time township assessor who maintains up-to-date and complete tax maps, ownership lists and property record cards in accordance with rules and procedures prescribed by the Department, and provided further that this shall not preclude the maintenance in the office of the county assessment supervisor of duplicate copies of such records. In preparing the original tax maps, lists and property record cards, the county assessment supervisor shall consult with the Department and the Department shall furnish to each county assessment supervisor such supplies and equipment as may, in its judgment, be necessary to set up the original set of maps, lists and records required by this section.
“The county assessment supervisor shall be the assessor for the county in which he is appointed and shall also serve as clerk of the county board of review and shall be present at all hearings held by such board and shall receive no additional compensation for such services.”
The other changes consist largely of substituting the words “county assessment supervisor” for the words “supervisor of assessments,” and eliminating the making of any independent assessment of property by the township
Under section 2 of the act of 1939, (Ill. Rev. Stat. 1947, chap. 120, par. 483,) for which the new section 2 is substituted, the county treasurer was ex officio supervisor of assessments. He appointed his own deputies, whose salaries were fixed by the county board, and their compensation paid by the county. He was required to keep his assessment book open for public inspection. Comparison discloses several differences in the functions and powers of the supervisor of assessments and the county assessment supervisor, more specifically noted hereafter.
Among the grounds upon which the amendatory act is assailed as being unconstitutional are the following: (a) that it constitutes an unjustifiable interference by the executive with the legislative or judicial departments of the government, contrary to article III of the constitution, relating to the division of powers; (b) that it abolishes local taxation, with the effect of allowing an executive officer to become the assessing agency; (c) that it violates section 2 of article II of the constitution of Illinois, and the fourteenth amendment of the Federal constitution, in depriving citizens of counties, where there is not an elected board of assessors, of equal protection of the law; (d) that it constitutes a local or special law contrary to section 22 of article IV; (e) that it does not operate uniformly, as it exempts counties having a board of assessors, and discriminates against the counties not having an elected board of assessors; (f) and that as an amendatory act it amends certain other acts without complying with section 13 of article IV of the constitution providing no law shall be revised or amended by reference to its title only, but the law revised, or the section amended, shall be inserted at length in the new act; and (g) other objections not necessary to recite here.
The argument that the act is local and special, and not based upon a proper classification, is based upon the following provisions of the act: (1) The office of county assessment supervisor is established in each county of less than 500,000 population which does not have an elected board of assessors; (2) the provision of new section 4 that only counties of 160,000 or more and less than 500,000 may have a board of assessors; (3) the provision of section 96 that in counties of less than 500,000 the board of assessors, or the county assessment supervisor, as the case may be, shall have authority to revise the assessment; (note,— under the 1940 census there were no counties between 160,000 and 500,000 except St. Clair County;) (4) the elected township assessor becomes a deputy of the county assessment supervisor; (5) deputy assessors are to be appointed by the county assessment supervisor instead of the assessor; (6) section 17 provides the county assessor, county assessment supervisor, board of assessors, board of review, or board of appeals, as the case may be, shall assess all property except railroad property, thus preventing township assessors, by giving others the authority to assess, from performing the duty for which they are elected.
It will be observed that the effect of these various provisions of the amendatory statute is to put all counties in the State under 160,000 population within the provisions of the act requiring a county assessment supervisor. This necessarily follows because there is no provision for such counties to have an elected board of assessors.
The Traeger case did not decide the question of classification involved here, as the point raised was that the act regulated county and township affairs contrary to the constitution. Neither of the cases mentioned involved statutes where population, with conditions annexed such as those presently referred to, was considered. On the other hand, there have been a number of cases in which the population basis of classification, when accompanied by conditions or reservations, has been held improper. In Devine v. Board of Comrs.
So, in People ex rel. Stuckart v. Knopf,
In People ex rel. Breckon v. Board of Plection Comrs.
From a resumé of the cases in which population seems to have been the principal factor in making the classification, there is no uniformity in holding that population alone is a sound basis of classification for the application of laws, but on the contrary in a large number of cases, especially in instances where there is a reservation or condition annexed to the population evaluation, such classification is held to be illegal, arbitrary and void.
From the cases cited, it seems that population may be" a proper basis of classification where it is obvious there is a different remedy required, or a condition to be alleviated, which is the result of density or sparsity of population, since it is common knowledge that such a situation sometimes requires more or different facilities to effect the public purpose remedied, and the legislature is presumed to have made an investigation and to have determined the facts before enacting the legislation. In such instances population may furnish a proper foundation, since the law is uniform as to those affected by it. Such were the situations presented in
The principle applicable to a proper classification of persons subject to a law must rest on some difference which has a reasonable and just relation to the act in respect to which the classification is proposed. The" situation calling for the law must exist and not be created by the legislation making the classification. Thus, a different debt limitation allowed in counties of over 125,000 population,
In the instant case, the classification of counties required to have a county assessment supervisor does not rest upon the factor of population alone, and we assume that no one would contend there would be a substantial difference in the assessment procedures in counties of 165,000, as compared to those of 160,000, and certainly not as much difference as there would be between those of 160,000 and those of 15,000 or 20,000 population, all of which are in the class created by the act in question. In reality the statute does not make the classification by population, but in fact bases it upon the question of whether the legislature has or has not granted counties the right to have an elected board of assessors; and, since by section 4 it is only counties with a population of over 160,000 that are authorized to elect a board of county assessors, all of the counties in the State but one, for lack of the power to have an elected board of assessors, are designated a class for an entirely different type of assessment procedure. Since the act is not based upon population alone, but is coupled with the
In Marallis v. City of Chicago,
In the Harding case the law assailed required coal mines, whose product was shipped by rail or water, to weigh the coal mined for the benefit of its employees; and in the Braceville case, where the law attacked required only certain corporations to pay wages weekly, the principle announced in the quotation above was applied and both acts
In Jones v. Chicago, Rock Island and Pacific Railway Co.
There can be no actual substantial difference in counties arising from the mere fact the General Assembly gives one the right to an elected board of assessors and withholds such privilege from another. The distinction is wholly artificial, and created solely for the purpose of making a class, and hence offends section 22 of article IV of the constitution.
The other serious objection to the validity of the amendatory act, and in particular, to sections 2, 2a, 2b and 2c is that these sections in effect place in the executive branch of the government a proper function of the legislative department, contrary to article III, which requires each department of government to exercise power only properly belonging to it, and not to exercise any power properly belonging to either of the others.
An analysis of these new sections of the amendatory act indicates a departure from the law amended in the following respects: (1) the manner of appointing the assessment supervisor; (2) the powers given him; and (3) their effect upon related laws. The matter of appointment, while ostensibly made by the county board of supervisors,
Sections 45 and 53 of the Counties Act (Ill. Rev. Stat. 1949, chap. 34, pars. 45 and 54,) provide that a quorum of the county board shall consist of a majority of its members, and the majority of such quorum may transact business. Thus, the power of the county board to select the county assessment supervisor is so hampered and restricted by the requirements which the Department of Revenue may exact as to the selection and competency of such supervisor that its apparent power of selection is but a shadow of the Department of Revenue.
That the legislature might provide that the county assessment supervisor be designated by the Department of Revenue, to assess and value property in accord with section 1 of article IX of the constitution, without coming within the prohibition of article III may be conceded; yet, when these new sections are carefully considered, it will be noted the Department is not given such power directly, but only by the exercise of new and different requirements made to control the county board in the appointment of such official, thus, to this extent, regulating the action of the county board in the selection of its own official, which is prohibited by section 22 of article IV of the constitution.
Uniformity in taxation, as required by the constitution, implies equality in the burden of taxation, and this equality in burden cannot exist without uniformity in the mode of assessment as well as the rate of taxation. (Hanover Fire Insurance Co. v. Harding,
Even though an assessment supervisor may be created by the General Assembly, with the powers to assess or value property under section 1 of article IX, yet, such power of the legislature to prescribe the manner of valuing or assessing property does not authorize the enactment of a law under which the executive department is given the right to require appointment under the pretense it is an appointment of the county board. And a fortiori the power to make the law cannot be delegated to the assessment supervisor or to the Department of Revenue. (People ex rel. Rice v. Wilson Oil Co.
Finally, section 2 leaves an absolute discretion in rejecting or approving appointments by requiring that the proposed appointee must be a person the Department “regards as qualified for the office of county assessment supervisor,” and the Department is required to certify the names of those persons “whom it considers competent to hold the office,” without any rules or definitions provided by law to test this broad discretion given the Department. Such a delegation of indefinite power in sections 2, 2b and 2c is repugnant to the constitution, under the well-settled principle that such provisions are so indefinite and incomplete as to put within the power of the Department
We might observe that the act, under the constitution, is an amendatory law; does not purport to be complete within itself, and, this being true, other laws may not be amended or modified without being expressly set forth at length in the new act. (Art. IV, sec. 13.) The act under consideration, without reference thereto, amends section 9-86 of chapter 24, relating to the election of township assessors, in that, under this statute they are no longer township officials but are in fact the deputies of the assessment supervisor. And it likewise amends and alters in part section 53 of chapter 34, relating to the power of a quorum of the county board to transact business, and in lieu thereof substitutes a special law with respect to the appointment of one out of the many employees, agents and officials it is entitled to select by a majority of a quorum of the board. The law is well settled that this is a violation of the constitution. The rule is tersely stated in People v. Knopf,
Enough has been said to show that sections 2, 2a, 2b and 2c not only violate section 22 of article IV, and
This leaves for consideration the act designated as the “Appropriations act,” but since this act relates entirely to the salaries and expenses of the new officers created under the amendatory act, which we hold void, and does not authorize expenditures of money for any other purpose, we will discuss it but briefly.
This act is known as Senate Bill No. 687. It was originally introduced under the title, “A bill for an act making an appropriation to the Department of Revenue for refunds in accord with the provisions of the Motor Fuel Tax Law, approved March 25th, 1929, as amended.” It purported to dispose of $10,750,000 for the purpose of reimbursing and repaying, in accordance with section 13 of the Motor Fuel act, persons who overpaid fuel taxes. In such form the bill passed three readings in the Senate, and the first reading in the House. On second reading in the House amendment No. 1 was made, by striking out the entire substance of the bill, leaving only the number and the words “A Bill,” and inserting a new title, “An Act making appropriations for certain ordinary and contingent expenses in this State in connection with tax assessments,”
Section 13 of article IV of the constitution, provides that every bill shall be read at large on three different days in each House. And it is the contention of appellant that under the facts above this constitutional provision was not observed, and consequently the appropriation bill is invalid. This provision is clear and concise, — “Every bill shall be read at large on three different days in each House;” and it has been held by this court that a failure to observe this constitutional requirement shall render the bill void. People ex rel. Zeno v. Illinois State Board of Dental Examiners,
However, amendments germane to the subject matter may be made without the proposed act, as amended, being read three times in each House. (Commissioners of Sny Island Levee Drainage Dist. v. Shaw,
The term germane, is defined in Dolese v. Pierce,
While it is true that the title of a bill has been held not to be an essential part of it, it is a part of the law when enacted. (Larrison v. Peoria, Atlanta and Decatur Railroad Co.
The original bill was to appropriate money for refunds to taxpayers, in accordance with a certain provision of the Motor Fuel Tax Act, (Ill. Rev. Stat. 1947, chap. 120, par. 429,) which authorized refunds in certain cases. After this bill had been adopted in the Senate, after three separate readings, every word of the original bill was stricken, except the number thereof, “687,” and the first words, “A Bill,” and then there was added to this number and the words “A Bill” new language, which provided for the salaries and expenses to be paid by the Revenue Department in the Property Division, to be incurred under the amendment to the Revenue Act. This is claimed by the Attorney General to be an amendment, and is said to be germane to the original bill,
We think there was a complete substitution of a new bill under the original number, dealing with a subject which was not akin or closely allied to the original bill, and which was not read three times in each House, after it had been so altered, in clear violation of section 13 of article IV of the constitution.
Our conclusion is that both the amendatory act relating to the creation of the office of county assessment supervisor, and the appropriation act, providing for the payment of the salaries and expenses, are unconstitutional and void, and the decree of the circuit court of Sangamon County is accordingly reversed, and the cause remanded, with directions to grant the relief prayed for in plaintiff’s complaint.
Reversed and remanded, with directions.
In a petition for rehearing, fear is expressed that the collection of taxes for the current year will be jeopardized. The law under consideration having been held invalid, the law prior to its enactment is still in effect. The rehearing is denied.