16 N.E.2d 906 | Ill. | 1938
Lead Opinion
The General Assembly passed a statute in 1937 applying to municipal corporations and taxing bodies (except the State of Illinois) containing more than 500,000 inhabitants, whereby the validity of the annual tax levy ordinances of such taxing bodies might be determined before the taxes are extended, and making the judgments therein conclusive in any subsequent proceeding based upon said tax levy. (Laws of 1937, p. 1019; Ill. Rev. Stat. 1937, chap. 120, par. 110.1 et seq.) The two consolidated cases at bar were *382 brought in the circuit court by taxpayers of Cook county, seeking to enjoin the county and its officers from making any expenditures under a contract entered into by the county for the publication of notices provided by the act. Motions to strike the complaints were sustained, and plaintiffs have appealed to this court.
The constitutionality of this statute is assailed by appellants on several grounds.
The principal object of the statute applicable to all municipal and quasi municipal corporations and taxing bodies within its limitations is to confirm the levy of annual taxes before extension, and for such purposes the county courts are given jurisdiction including all powers of courts of equity. Each of the corporations or taxing bodies affected shall within sixty days after passage of its annual appropriation ordinance file with the county clerk a certified copy of its annual tax levy ordinance; within ten days after such latter ordinance is filed, the county clerk shall prepare and file in the county court a petition, to which a copy of the tax levy ordinance shall be attached and made a part, for the confirmation of such tax levy. The petition shall likewise set forth the percentage of loss and cost of collection which the county clerk proposes to add, where no levies for that purpose have been made, and where such addition is permitted by law. And such petition shall designate a return day, which shall be not less than twenty-five nor more than thirty days from the date of filing. Within five days after the petition is filed the county clerk shall publish a notice in a secular newspaper of general circulation published within the municipal corporation, notifying all taxpayers concerned, and the corporation levying the tax, of the filing of the petition to confirm the levy, the docket number of the cause, the return day fixed, and advising all persons owning or interested in real or personal property which may be affected, that they may file objections in writing on or before the return day. On or before the return *383 day, the taxpayer may file objections in writing, specifying in detail any grounds of illegality against the levy, or the amount proposed to be added by the clerk as percentage of loss and cost of collection, and also, at this time, raise the question as to whether any levy is within or without the tax rate limit.
The act also provides for a hearing on the return day, or on such date as may be fixed by the court. Following the making of proof of notice and the filing of the levy, the case shall be tried in a summary way without further pleadings. After all objections have been heard the court shall enter an order determining which levies of taxes are legal, and which illegal, and directing the county clerk to use the tax levies found to be valid, together with the amount the clerk shall add as loss and cost of collection, in computing the tax rates for the year. And where an issue is raised considering the maximum tax rate the order shall declare, also, whether the levy in question is within or without the tax rate limit.
The act also provides for an appeal to the Supreme Court. Section 9 provides: "The order confirming or refusing to confirm tax levies entered pursuant to the provisions of this act shall be conclusive as to the validity or invalidity of any and all such tax levies, and no tax levy thereby confirmed or in the process of confirmation shall thereafter be questioned in any other suit, action or proceeding whatsoever, or by objections to the county collector's application for judgment and order of sale against real estate for delinquent taxes."
Only six taxing bodies in the State contain 500,000 or more inhabitants; the county of Cook, city of Chicago, Board of Education of the city of Chicago, Chicago Park District, Sanitary District of Chicago, and the Forest Preserve District of Cook county.
The time for passing the annual appropriation ordinance and annual tax levy is not the same in all of these six bodies, *384 nor is the territory embraced within the six taxing bodies identical. The Chicago board of education must adopt its annual appropriation ordinance within three months after January 1, and since, under the new act, it is required to file a copy of the levy for school taxes within sixty days after its adoption, it may not be filed until June 1. If the clerk's petition for confirmation is filed within ten days, and thirty days' notice is given of the hearing, the latest date fixed for the return day would be approximately July 10. On the other hand, if the board of education should immediately after January 1 adopt its appropriation ordinance, and, substantially, concurrently adopt its tax levy ordinance and immediately file it with the county clerk, the return date could be as early as February 10. Likewise, if the municipality does not see fit to perform its tax-raising functions on the first or last day possible the hearing might legally be expected any time between February 10 and July 10, a period covering five-months' time.
The law requires the Chicago Park District to adopt its annual appropriation ordinance before the beginning of the fiscal year, viz., January 1; the Chicago Sanitary District, within thirty days of January 1; the city of Chicago and the Forest Preserve District of Cook County, within the first ninety days of their fiscal year, commencing January 1, and the county of Cook, within the first quarter of its fiscal year, which begins on the first Monday of December.
It is thus apparent from the provisions of law applying to the six municipalities, the date of making the appropriation may range from the first week in December until the end of March, and the return day upon the county clerk's petition for each taxing body may be as early as April 10 in some cases, and as late as July 10 in others; that the possibility and probability is, that such return dates and the notices for fixing such return dates may be interspersed over a period running from the end of December to the early part of July, as the county clerk is required to file a *385 separate petition, and give a separate notice for the validation of the taxes of each municipality or taxing body.
There is no positive or fixed date provided by statute for any of the acts necessary to comply with the provisions of this law, except the earliest date upon which a municipality may adopt its appropriation ordinance. From that stage the date of giving notice or the date of hearing depends upon the time required by each individual municipality to prepare and adopt its appropriation ordinance, and to prepare, adopt and certify its tax lexy ordinance, and, even after this is done, there is a further uncertainty as to the time a hearing may be expected, inasmuch as the clerk may take as little less than ten days as may be required to file his petition, and can make the time of the notice ranging from twenty-five to thirty days. This statute does not operate independently of the general Revenue act but as a part of it, in the municipalities affected. The extension and collection of the taxes are governed by the laws now in force; both the general Revenue act and the law under consideration must be read together to determine its complete scope and effect.
Under the general Revenue act a judgment cannot be rendered for the sale of real estate unless the notice required by statute (Ill. Rev. Stat. 1937, chap. 120, par. 170) be complied with. This notice requires a description of the property, the name of the owner, and the amount unpaid, and the application for judgment upon such notice is made to a definite term of the county court, the time of which is definitely fixed by statute. Paragraph 171 of chapter 120, supra, provides the collector may charge real estate with unpaid personal property tax, but that can be done only by giving the notice required by that section. Paragraph 215 of the same chapter authorizes a collector to obtain a personal judgment for the non-payment of personal or real estate taxes in an action of debt where service of the defendant must, of course, be made as provided by the Civil *386 Practice act. Paragraph 144 of the same chapter requires a collector to distress and sell any personal property of the taxpayer for unpaid personal property tax. Section 3 of the Exemptions act (Ill. Rev. Stat. 1937, chap. 52, par. 3) provides that no property shall be exempt from sale for non-payment of taxes or assessments.
In all these situations, as a defense to the sale, the invalidity of the tax could be urged (Neal Institute Co. v.Stuckart,
Section 2 of article 2 of the constitution provides that no one shall be deprived of property without due process of law. Due process of law requires notice to the defendant and an opportunity to be heard in the protection and enforcement of his rights before a court of competent jurisdiction in an orderly proceeding adapted to the nature of the case. (People v. Miller,
The vital question presented, therefore, is whether the notice given by the county clerk, in view of the provisions of the act, and their necessary effect, considered in conjunction with other parts of the general Revenue statutes of Illinois, is sufficient to comply with the constitutional requirement of notice.
In People v. Niesman,
The Bickerdike case was followed in Nelson v. Chicago,Burlington and Quincy Railroad Co.
When it comes to the consideration of the effect of the notice upon real estate alone, it must be borne in mind that it has uniformly been held that a judgment in rem does not entitle the holder to a judgment in personam against the owner of the property without personal service of process. (People v.Cincinnati, Lafayette and Chicago Railroad Co.
A personal judgment cannot be obtained by publication process against a non-resident, even though the proceeding is brought inrem or quasi in rem. (Austin v. Royal League,
Appellees concede that the statute under consideration does not give notice in the sense the taxpayer knows that at a given time and place a proceeding will occur, in which the validity of a tax levy will be determined, but take the position that by prescribing notice by publication at the various times required to comply with the statute, a notice equivalent to that in board of review and equalization proceedings is given, which would satisfy due process of law.
Appellees urge these cases have added, in addition to the usual elements constituting due process of law, a third element, viz., that the notice and opportunity to be heard shall be adapted to the nature of the case, and, therefore, the act, by providing notice shall be published in a newspaper *390
at the times made necessary by statute, measured by the time of filing of the several levies, is sufficient. An analysis of the cases cited fails to support this broad claim. Sherman v. People,
A number of cases are cited in which it is held a property owner is bound to take notice of the time fixed by *391 statute for the board of review to hold its meetings, and failure to appear and object estops the property owner from obtaining changes in valuations by court proceedings. These same cases uniformly hold, however, that the board of review cannot make a new assessment against a taxpayer without giving him notice. Such cases involved the equalization of assessments already made in conformity with the constitutional provision requiring uniformity of taxation, which provides for the adjustment of values between different taxing districts, and only affects the sum total of revenue to be derived from each district which may be done without notice to the taxpayer.
The cases cited by appellees may be summarized as holding: (a) That the tribunal to hear a cause need not be a court; (b) for such purpose the notice to the taxpayer of time of hearing may be a date fixed by a statute; (c) if some new burden is to be added to the taxpayer actual notice must be given.
At some stage, before a tax becomes irrevocably fixed as a charge on his property, the taxpayer must have an opportunity, of which he shall have notice, to be heard as to the validity and extent of the tax. This opportunity is given him on the application of the collector for judgment for taxes charged against his property. People v. Arnold Bros.
The act under consideration provides only for the publication of one notice in a secular newspaper of general circulation. Under this act, and upon this notice, real estate may be sold, personal judgments obtained for the amount of unpaid real estate or personal property taxes, where the only ground of objection is the illegality of the levy. It is not a case where objections may be made at a definite time from a date fixed by statute, nor does it fix a day, by statute, when objections must be on file or a default taken. No publication is made of the amount of personal property assessment nor any descriptions of real estate such as now *392 are required to predicate a judgment in personam in case of non-payment. If the statute fixed the first day of a term of court, or if levies were required to be on file with the clerk by a fixed date, the taxpayer would have some definite information from which the date of hearing could be ascertained.
This situation is not confined to the residents of the municipalities alone. For unpaid taxes in one of these taxing bodies suit could be brought against the resident of another county than Cook county, and presentation of the requisite proof would entitle the municipality to a personal judgment. Conceivably, such a suit could be brought in another State to recover from a non-resident unpaid taxes or assessments on property owned by him in the territory covered by the act. This state of affairs is also presented by the case of a resident of Illinois, outside of Cook county, holding real estate in the county of his residence and also in the city of Chicago, upon failure to pay taxes, being entitled to make a defense of illegality of the levy in one action and in a like suit brought in the city of Chicago, estopped from making such a defense, and this may also apply to property owners in Cook county, where they own property both within and without the taxing bodies to which the act applies.
Due process of law is one of the fundamental rights guaranteed each citizen by the constitution. It demands notice and hearing. The notice afforded should be such as is likely to be received and plain to understand. The publication of one notice, only, in a locality which may not contain all the interested owners, especially when no definite time is fixed by statute for its appearance, is insufficient to authorize the proceedings contemplated by the act.
It is manifest that the statute in question does not provide due process of law in that no notice is given to the property owner of the proceeding to validate the taxes *393 in the county court conformable to the mandate of the constitution.
In view of the foregoing it is unnecessary to pass upon the other points discussed in the briefs.
The decree of the circuit court of Cook county is reversed and the cause remanded, with directions to overrule the motions to strike.
Reversed and remanded, with directions.
Concurrence Opinion
I concur in the reasoning and conclusions of the foregoing opinion. It is, of course, unnecessary to the support of the conclusion of the court that other points be passed upon, but I am also of the opinion that because of the importance and novelty of other legal questions involved, they merit consideration in this proceeding.
The point is made that the act is special or local, imposing special burdens or granting special privileges to certain taxpayers in the six districts affected, thus contravening the State constitution. The taxpayers in those districts may be required to appear at six different times in six different proceedings in order to object to tax levies. This is so because, as shown in the opinion of the court, the periods during which the levies may be made differ in those districts, and, as a consequence, the dates of hearing must be different.
It is also seen from this act that many taxpayers in Cook county outside of the city of Chicago will be required to follow a different procedure in objecting to the taxes from that followed by those living within the city or outside the county. Suppose a taxpayer in one of the three hundred other taxing districts of the county, outside some of the six affected, desires to object to city and park taxes levied on his property. His property is within the county and within the forest preserve district. He, therefore, is required to appear in two proceedings under this act and, also, *394 in a further proceeding for judgment for delinquent city and park taxes. Other like illustrations suggest themselves. These are burdens placed upon such taxpayer different from those imposed upon others within the county, or others residing outside the county.
Classification of the objects of legislation is not required to be scientific or consistent if it is reasonably adapted to secure the purpose for which it was intended and is not purely arbitrary. (People v. Callicott,
There is also a want of due process in the case of the numerous taxpayers who own no real estate, but who acquire personal property before the first day of April, but after any levy has been confirmed. Such ownership will often be acquired after the levy and continue through the first day of April and may be of personal property acquired from citizens of other States. Neither the former owners nor the citizens of Illinois, who are required to pay a tax on the personal property which they own on the first day of April, would be parties to the action prescribed by the statute. There is no possible representation in that action and yet the owner of personal property on the first day of April, if sued for the tax in an action of debt, is barred by this statute from asserting either that the rate of the levy exceeds the constitutional limit or the statutory limit. This will affect all the citizens in the taxing districts which come within the act, who buy foreign-owned stocks and bonds and hold them until the first day of April. Undoubtedly this is a want of due process.
I am of the opinion that the act is bad for three other reasons: First, it fails to provide adequate notice (treated in the opinion of the court); second, the proceedings prescribed do not provide for the presentation of justiciable issues and thus the order of the court cannot be held to be *395 res judicata in any proceeding which might later be instituted affecting the validity of the tax; and, third, regardless of the answer to the first two questions, the effect of provisions of sections 5 and 9 is to destroy the validity of the act.
The question whether there is provided by this act a proceeding presenting justiciable issues is one of the most important in the case. If the proceeding prescribed is one presenting justiciable issues, the court's findings in it can be said to be resjudicata, but it is obvious that if the issues are not justiciable, if the proceeding is not one which comes within the bounds of judicial inquiry, then the findings of the court are not binding, and the fact that section 9 of the act declares them to be so on all persons, in all other proceedings, can be of no avail. Res judicata must arise, if at all, out of a justiciable issue.
The appellees say that a levy ordinance having been adopted, there is created thereby certain rights against the administrative officers of the county, — i.e., the right to demand that the county clerk extend the tax and that other officers collect it, and, it is said, there also comes into being the right of the district against all property within its boundaries, and so, these claims of right on the part of the taxing district, with the privilege to the taxpayer to contest them, constitute an actual controversy, and that, in that respect, the proceeding differs from Union Coal Co. v. City ofLaSalle,
Another weakness lies in the fact that there is before the court no description of the property on which the tax is to be levied and so it cannot be said that there is present this element of a proceeding in rem, considered in the Hoehamer andCesar cases to be essential to an action in rem for the sale of real estate to pay delinquent taxes. Yet the effect of this confirmation, as the act seeks to give it effect, other than as a finding of fact concerning the regularity of the levy proceedings, is to declare that the property shall be sold if the taxes are not paid, and this without any further trial. This is so because on application for sale the taxpayer may not be heard on the question of the validity of the levy. The effect of this proceeding is declared by section 9 to forever bar a trial of any issues affecting the validity of the levy. Thus, also, it seems clear, the act provides a determination of rights in and status of property without having the property within the jurisdiction of the court.
Appellees' argument as to rights arising from the filing of the clerk's petition was in effect made in the Muskrat case, supra. It was there claimed that by passage of the act of Congress there involved, Muskrat and his associates were given rights as designated in that act including a right to bring suit against the government, but it was held that the provisions of the act authorizing Muskrat and others to bring such a suit against the government did not provide for a proceeding with a justiciable issue, but that such proceeding would present merely the question whether an act of Congress was valid. I am unable to see wherein the proceeding here provided presents justiciable issues.
Nor can it be said that this act provides proceedings for a declaratory judgment. It has long been settled in this *398 State, as will be seen on examination of the correspondence between this court and the then Governor of this State, to be found in volume 243 of Illinois Reports at page 9, that the courts of this State may not give advisory opinions.
That a controversy is an essential element of a declaratory judgment has been the uniform holding of courts in this country. As was said of declaratory judgments in the recent case, ÆtnaLife Insurance Co. v. Haworth,
There is another, and, I think, unsurmountable, difficulty with this act. In the provisions of section 5 granting the right of the taxpayer to file objections, the following language appears: "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 shall likewise set forth in his written objections facts in support of his contention." Recurring to the provisions of the act as to when objections to the county clerk's petitions may be filed, we find that the latest possible time, in any one of the six districts affected, expires on or before July 15. The objection that the tax rate resulting from *399 the tax levy will be in excess of statutory or constitutional limitations must be filed in the confirmation proceeding, or, under section 9, this objection is forever barred; and this, notwithstanding the fact that the question whether the tax rate will exceed constitutional or statutory limitations can not be determined until the final assessment and valuation of property is made and returned through the action of the assessors, the appeal board and the State Tax Commission. This of necessity comes much later in the year. It is obviously impossible for the objector or anybody else to know, when he files his objections to the clerk's petition, whether the levy will result in a rate in excess of legal limitations. Due process of law contemplates a reasonable opportunity to be heard in defense. This frailty, standing alone, renders the act unworkable and deprives the taxpayer of his property without due process of law.
Mr. JUSTICE FARTHING joins in this special concurrence.
Dissenting Opinion
In my judgment, the interpretation of the constitution adopted by the foregoing opinion is unduly narrow and unwarranted by precedent. By enacting the statute in question here, the legislature has attempted to provide a means whereby errors in municipal tax levy ordinances may be corrected before taxes are extended. By means of its provisions, a successful objection redounds to the benefit of all taxpayers concerned instead of to the objector alone as heretofore has been the case. It is not the province of the court to pass upon the wisdom of these provisions. We are concerned solely with their validity under the constitution. While it is our solemn duty to strike down laws obviously in conflict with that instrument, the power vested in us to do so should be exercised with caution in order that its provisions, intended to provide security for future generations, may not, instead, become a barrier preventing the achievement of that end. *400
I do not believe that the notice provisions in the act deprive taxpayers of due process of law. The concept of due process is complex and undefinable except as applied to particular situations. In tax cases, it merely requires that the taxpayer at some stage in the proceeding be given "an opportunity, of which he shall have notice, to be heard as to the validity and extent of the tax." (People v. Arnold Bros.
Each State may determine for itself by what method its own citizens may be informed by suits against them provided, of course, substantial justice is accorded to litigants. (Nelson v.Chicago, Burlington and Quincy Railroad Co.
The opinion relies extensively upon cases holding that a personal judgment may not be rendered against a non-resident of the State upon notice by publication alone. Assuming that a judgment under the act in question here could not be made the basis for a personal judgment against a non-resident taxpayer for this reason, I do not believe that the act is entirely void on that account. A law, general in its terms, may be unconstitutional as applied to one class of persons and yet valid in its application to other classes which differ from the former in material characteristics. (Chicago, Burlington and QuincyRailroad Co. v. Jones,
I am further of the opinion that the statute is not constitutionally vulnerable on the remaining grounds assigned by appellants. They contend that the law is local and special and hence violates section 22 of article 4 of the constitution. That section prohibits the General Assembly from passing a local or special law on certain enumerated subjects, among which are the management of common schools and the regulation of county affairs. In addition, it provides that "in all other cases where a general law can be made applicable, no special law shall *402
be enacted." We have held that the clause prohibiting special legislation concerning the management of common schools refers only to the conduct of those schools in imparting instruction,(People v. Pollock,
Section 22 of article 4 does not require that every law shall affect alike every place and every person in the State. A law is general "not because it embraces all of the governed, but because it may embrace all when they are similarly situated and come within its provisions," (People v. Kaelber,
Classification according to population has been quite frequently resorted to by the legislature, but a distinction based upon location or numbers, alone, is not sufficient. Thus we have held that the location of municipal corporations within the boundaries of Cook county does not justify a rate of taxation greater than that permitted municipalities of the same size located outside that county. (People v. Knopf,
Appellants contend, however, that the case of People v. Cooper,
It is appellants' further contention that the proceeding provided by the act lacks all the requisites of a justiciable controversy, and that, as such, it violates fundamental constitutional principles. This court has said that "judicial investigation, ordinarily at least, should be limited to rights which have actually accrued, and all attempts to obtain from the courts decisions in relation to rights which have not yet accrued, or to the validity of transactions which have not yet been entered into, ought to and usually do prove abortive."(Union Coal Co. v. City of LaSalle,
Appellants rely on Tregea v. Modesto Irrigation District,
Appellants further say that since the county court of Cook county is the only court in the State at present entitled to entertain proceedings under this act, there is a violation of section 29 of article 6 of the constitution. This section was construed in Knickerbocker v. People,
In my opinion, the statute in question is valid and the decree of the circuit court should be affirmed.
JONES and WILSON, JJ., concur in the foregoing dissenting opinion. *408