In rе APPLICATION OF EDWARD J. ROSEWELL, County Treasurer, Appellant (Harold S. Levin et al., Appellees)
No. 55907
Supreme Court of Illinois
July 6, 1983
Rehearing denied September 30, 1983
97 Ill. 2d 434
Bernard Allen Fried, of Chicago, for appellee Aaron Szydlowicz et al.
James A. Rooney, of Chicago, for appellee Iver Johnson.
This appeal presents the question of the authority of the circuit court to withhold property that has been tax delinquent for five years or more from a sale under section 235a of the Revenue Act of 1939, which section is commonly known as the Scavenger Act (
The collector filed the application for judgment and order of sale under the Scavenger Act on July 21, 1980. The application included all parcels upon which real estate
On August 27, 1980, the collector, at the request of his legal counsel, the State‘s Attorney of Cook County, moved the court to amend its judgment so as to exclude from it the parcels whose оwners had already been named in suits to collect delinquent real estate taxes. The objectors opposed the motion, but the court on September 24, 1980, amended its judgment and deleted the parcels. The court subsequently confirmed the sale of the remaining parcels. It denied objections to the confirmation of sale filed by the objectors, who argued that their parcels should have been included in the sale.
The Revenue Act of 1939 (
Statutory means of enforcing these tax obligations have been enacted. Section 235 of the Rеvenue Act (
At the time of the sale here, the relevant section of the Scavenger Act provided:
“[T]he County Collector annually *** shall in counties with a population of 2,000,000 or more, and shall in other counties if the county board by resolution so orders, *** publish an advertisement giving notice of the intended appliсation for judgment for sale of all tracts of lands and lots upon which all or a part of the general taxes for each of 5 or more years are delinquent as of the date of the advertisement. *** The term delinquent also includes forfeitures. *** The County Collector shall make application for judgment for sale as provided in this Section and the Court shall give judgment for such general taxes, special taxes, special assessments, interest, penalties and costs as are included in the advertisement and appear to be due thereon after allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of this Act, that such lands and lots be sold by the County Collector at public sale to the highest bidder for cash, notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered. Upon confirmation, a sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture. ***
*** The remedy herein provided is in addition to other remedies for the collection of delinquent taxes. This Section shall be liberally construed so that the deeds herein provided for shall convey merchantable title.” (Emphasis added.)
Ill. Rev. Stat. 1979, ch. 120, par. 716a .
The collector contends that the appellate court erred in holding that under the provisions of the Scavenger Act the court must enter an unalterable judgment for the sale of every parcel that has been declared tax delinquent for five years or more. The collector points out that, apart from a court‘s inherent judicial powers, a court, under the Act‘s explicit provisions, has authority to consider objections to a judgment and sale and to conduct hearings, and, of course, there is authority to enter appropriate orders. He says that for good cause, such as for fraud or irregularity, the trial court is not compelled to order a sale. Nor is a court, where prior suits against delinquent taxpayers to collect overdue taxes in full are pending, required to order a sale which predictably will bring only a small fraction of the tax indebtedness and may also require dismissal of the pending suits. The construction of the Scavenger Act that the objectors seek, the collector argues, would contradict the language and purpose of the statute and would sanction an unconstitutional interference by the legislature with the judiciary‘s authority to decide cases.
The objectors, on the other hand, stress the legislature‘s use of “shall” in providing that “the [c]ourt shall give judgment” for the taxes due and order a sale. They say that a mandatory construction is more in keeping with the apparent purpose of the Scavenger Act, to return tax-delinquent property to a status where it will generate revenue.
The collector is correct in his contention that under the legislative intendment the circuit court had discretionary authority to withhold the parcels of the objectors from the sale. It will not be necessary to consider the collector‘s ad-
The fundamental of statutory construction is to ascertain and then give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475; Town of City of Peoria v. O‘Connor (1981), 85 Ill. 2d 195, 203.) Regarding the construction of provisions in statutes as being mandatory or directory, Sutherland on Statutory Construction states:
“There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. The intention of the legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent. In the words of a court: ‘Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and, finally, whether or not there is a public or private right involved.‘” 1A A. Sutherland, Statutory Construction sec. 25.03 (4th ed. 1972), quoting from Wilcox v. Billings (1968), 200 Kan. 654, 657, 438 P.2d 108, 111.
Sutherland also observes that “shall,” except when expressing futurity, indicates a mandatory intent. The intent, however, it is stated, is not to be understood as mandatory if “the context otherwise indicates.” (1A A. Sutherland, Statutory Construction sec. 25.04 (4th ed. 1972).) This court has recognized that while “shall” ordinarily suggеsts the mandatory, it may properly be construed in a directory sense to carry out what appears to be the intent of the legislature. In re Armour (1974), 59 Ill. 2d 102, 104 (the word “shall” does not have an exclusive, fixed or inviolate mean-
The language of the provision in the Scavenger Act for the entry of a judgment and order of sale shows a legislative intent that the court was not to be without discretion and without the capacity to act judiciously. It provides for the entry of a judgment “after [the court‘s] allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of [the Revenue] Act ***.” Section 235 provides that the court shall consider the defenses of those against whom judgment may be entered and in a summary manner “pronounce judgment as the right of the case may be.” (
The civil actions against the property owners personally to satisfy the indebtedness for taxes are premised upon a “forfeiture.” As we have seen above, parcels offered at the annual sale but not sold are “forfeited” to the State, and section 275 of the Revenue Act authorizes a civil action against the owner of property that has been “forfeited.” (
“[A] sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture.” (Emphasis added.)
The objectors unreasonably ascribe to the legislature an intendment which would frustrate the public‘s efforts to collect the full amount of taxes due and would encourage tax delinquents to stall actions against them until the time for a scavenger sale of their property is reached; i.e., after five years of nonpayment of taxes. (The relationship between tax delinquency and urban blight is discussed in J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 DePaul L. Rev. 1 (1976).) The legislature, however, did not include in section 275 any limitation as to the time within which suit against the delinquent taxpayer must be brought. The civil action for the tax indebtedness may be brought “at any time.” (
The Scavenger Act is the legislature‘s device of last resort. A principal object of it is to restore the property to a tax-revenue-producing status. (In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 1108.) It assumes that the other available methods of tax collection have been ex-
The trial court did not violate what we perceive to be the legislative intent which would permit the county to continue its attempt to compel the tax delinquents to pay their taxes in full. The elimination of their properties from the sale simply gave the county the opportunity to protect its claims for the payment in full of the overdue taxes. As we have seen, if the concerned property had been sold the lien for taxes and forfeitures would have been extinguished and the pending actions against the tax delinquents might have been subjected to dismissal on that ground. Whether that result should have followed is, of course, not before us on this appeal. It seems clear, however, that dismissal of the actions would have been sought by some objectors had the parcels been sold at the sсavenger sale. The appellate court opinion notes: “The stipulation between the parties above described states that one of the owners [objectors] intends to file a motion to dismiss the action in debt
Dismissal of the actions in debt would be another welcome consequence for the objectors. This is an additional reason for their complaint that their properties were removed from the scavenger sale.
Though enacted too late to be of effect here, we point out that the legislature has acted to correct the very deficiencies in the Scavenger Act that we have shown and discussed here. Through an amendment (Pub. Act 82-987, 1982 Ill. Laws 2471, 2473) which its sponsor described as “very important in [Cook County‘s] attempts to collect delinquent taxes” (82nd Gen. Assem., Legislative Day 127, June 23, 1982, at 229 (remarks of Sen. Netsch)), and which became effective September 9, 1982, the legislature removed from the Scavenger Act the provision that all forfeitures shall be extinguished upon confirmation of the sale. The amendment also provides that confirmаtion of a sale shall not affect the personal liability of the owner or prevent the maintaining of an action under section 275 for the collection of delinquent taxes. (1982 Ill. Laws 2471, 2473.) It seems not unlikely that this action by the legislature was taken in response to the appellate court opinion here. The content of the amendment shows that the legislature entertained the same views and concerns that we have expressed here, including the effect of the provision for the extinction of all forfeitures on actions brought for the collection of taxes under section 275. Earlier, in Public Act 81-1076 (1979 Ill. Laws 4091, 4092), the legislature amended the Act to provide: “No certificate of purchase [at a scavenger sale] shall be issued to any person who has not executed and delivered an affidavit to the County Clerk that such person has not bid upon any lot or tract of land at such sale who is the party or the agent of the party who is responsible for the payment of the delinquent taxes.” That amendment was effective July 1, 1980.
This shows a determination by the legislature to deal with the problem of the permitted evasion of taxes by owners of tax-delinquent property and of the unwitting fostering of urban blight by deficiencies in the Scavenger Act. The 1980 amendment to the Act obviously was designed by the legislature to end the incredibly permitted practice of allowing tax-delinquent owners to re-acquire their own property free of forfeitures and tax liens following a sale under the Scavenger Act without satisfying their tax indebtedness. The amendments should discourage the sacking of residential properties by owners who deliberately fail to pay taxes, make no repairs, provide only minimal maintenance, ignore building code violations, and then are al-
Senator Nedza, the sponsor in the Senate of the bill that became Public Act 81-1076, in urging its passage, told the Senate: “Under the present scavenger sale system, there are many blatant abuses by property owners to avoid paying their taxes. Moreover, it is costing the counties millions of dollars in lost revenue, not to mention the loss in the valuable housing.” He urged the Senate to “[close] the loop hole in the tax collection system which penalizes diligent taxpayers ***.” 81st Gen. Assem., Legislative Day 74, June 27, 1979, at 163.
Another senator, rising in support of the bill, stated: “[W]e were all painfully aware that this process this procedure, does, in fact, exist. What happens is *** you will get a large apartment building in the *** the west side of Chicago, for instance and no taxes will have been paid year after year and after five years there is what‘s called a scavenger sale and I or one of my friends can go in and buy the back taxes for a dollar or two dollars or two dollars and fifty cents when the taxes, in fact, may have been ten thousand or twelve thousand or fifteen thousand dollars and then I can absolve myself from tax liability by purchasing for two dollars and fifty cents plus interest the amount of that bid.” 81st Gen. Assem., 74th Legislative Day, June 27, 1979, at 163-64 (remarks of Sen. Rock).
We observe, too, that Public Act 82-987 (which removed the provision that confirmation of a sale extinguishes all forfeitures) not only confirms our apprehension of the possible effect of confirmation of a sale on the actions for debt, but supports, too, our understanding of the duties of the court under the Act. As we have stated, the objectors stress the use by the legislature of “shall” in describing the court‘s duty to order a sale, and stress that “shall” has also been used in describing the function of the
The objectors note that section 1 of the Civil Practice Act (
The objectors argue that there is no showing that any judgments obtained through the pending suits will be collectible. The argument is unconvincing. One may assume that the State‘s Attorney, as any other prudent attorney,
The State‘s Attorney‘s brief says that the appellate court ruling exposes over 290 actions in debt to possible dismissal. These 290 cases seek to recover over $7 million in delinquent real estate taxes. The State‘s Attorney also says that in 1981 over 400 more actions in debt which seek collections of almost $8 million in delinquent taxes were filed. Obviously the question presented is not an isolated one.
Incongruously, considering that they have avoided for five years or more the responsibility of paying taxes, the objectors say that, unless the provisions of the Scavenger Act are held to be mandatory, there will be no assurance that the provisions of the Act will be carried out and the property restored to a tax-revenue-producing status. We need only observe that in instance after instance the legislature imposes duties upon public officials which typically are performed without default. The entire structure of government functions on the assumption that persons charged with public responsibilities will discharge those responsibilities.
It should be observed that simply because a parcel is not ordered to be sold in a given scavenger sale does not mean that its future sale is precluded. Property withheld from a sale may be included in a subsequent scavenger sale. The statute provides for the advertisement of the application for judgment and order of sale for tracts upon which taxes “for each of 5 or more years are delinquent.” (Emphasis added.)
The appellate court‘s opinion states that it considered it unnecessary to consider in detail the points raised by counsel. The court simply said that stare decisis required that it reverse the orders appealed from. The court cited In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, and People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272. The appellate court, however, seriously misapprehended what those decisions involved. In People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, the court held that the collector was without discretion to omit tracts from his advertisement under thе Scavenger Act of tax-delinquent property. The court said that because the purpose of the provision for notice of the collector‘s intention to seek judgment against the property was to inform owners of the delinquency and give them an opportunity to object to the judgment, and was not simply being a rule for the guidance of public officials, the county officers must strictly comply with the requirement for publication. The collector had omitted certain parcels from publication because there were pending actions against owners of those parcels. The court fully perceived, however, that the issue before it was not the question here. The court stressed:
“We are not suggesting, however, that an action for unpaid taxes once instituted cannot be pursued to final judgment if during the pendency of the action the taxes become delinquent for five years. That issue is not before us. Nor are we suggesting that our interpretation should jeopardize an action for unpaid taxes and frustrate attempts to collect the full amount of unpaid taxes. That issue is likewise not before us. We hold only that the cоunty collector is mandated by the Scavenger Act to ‘publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and
lots upon which all or part of the general taxes for each of 5 or more years are delinquent.’ We express no opinion as to whether every parcel included in such advertisement must be the subject of a judgment for sale; the Scavenger Act provides that ‘[n]o sale of lands or lots pursuant to this Section shall be final until confirmed by the Court ***.’
Ill. Rev. Stat. 1977, ch. 120, par. 735a .” 88 Ill. App. 3d 272, 278.
The citation of In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, by the objectors is somewhat remarkable, for there the court observed that under the Scavenger Act the scope of judicial discretion regarding a sale is broad. In that case the county collector had received the highest bid at a scavenger sale, had struck off the property as sold, and had received tender of payment. The court said that the collector may not reoffer the property for sale. The court held that under such circumstances the collector was without discretion whether to report to the court for confirmation of the sale. The court contrasted the cоllector‘s responsibility in that respect under the Scavenger Act with that of the court. The circuit court, said the appellate court, has broad discretion during review of a sale. The appellate court cited People v. Anderson (1942), 380 Ill. 158, which involved the sale of real estate for delinquent and forfeited general taxes. This court observed in Anderson: “The rule is firmly established that the chancellor possesses a broad discretion in approving or disapproving a report of sale, and that his decision will not be disturbed unless there is a clear abuse of discretion.” (380 Ill. 158, 163.) It also cited Evans v. Hunold (1946), 393 Ill. 195, where this court stated: “In cases of sales requiring the approval of the court, the chancellor has a broad discretion to confirm or disapprove such sales.” 393 Ill. 195, 200.
For the reasons given, the judgment of the appellate
Appellate court reversed; circuit court affirmed.
JUSTICE SIMON, dissenting:
An underpinning of the majority opinion is its conjecture that an action to collect unpaid taxes “might have” to be dismissed once a scavenger sale of the taxpayer‘s property occurs (97 Ill. 2d at 443), thereby relieving the property owner of personal liability for those taxes. This issue was not briefed by the parties either in this court or in the appellatе court. The majority concludes, on the basis of the uncertainty it perceives, that the legislature could not have meant to require the county collector to include in a scavenger sale properties against whose owner an action to collect back taxes is pending. This possibility, however, is foreclosed by the clear statement in the Scavenger Act itself that “[c]onfirmation of the sale shall in no event affect the owner‘s personal liability to pay the taxes, interest and penalties as provided in this Act; nor shall confirmation prevent institution of a proceeding under Section 275 of this Act to collect the amount remaining due after the sale.” (
Under the current аnd relevant version of the Scavenger Act the law is clear: A taxpayer who is delinquent in paying his property taxes is liable at all times for the amount of the
I believe that the 1982 amendment which I have quoted was declaratory of existing law (see Biggins v. People (1880), 96 Ill. 381, 384 (strong dictum)). In any event five or more years of overdue taxes would never be “satisfied by a bid of *** $143” (97 Ill. 2d at 443) because the county itself is free to bid at such a sale for purposes of driving the price upward or of purchasing the property to offer at the next scavenger sale if the bids it receives are nоt to its liking, as well as because of important statutory safeguards incorporated in the 1978 amendments to the Act. These amendments require, except in the case of single-family residential units, that the amount to be paid for redemption be at least equal to all delinquent taxes on the property at the time of the sale. (
However, the question of what the earlier law was can
The majority opinion comes to the conclusion that the Act was directory prior to the amendment stating that the collector‘s duty was mandatory largely as the result of its concern that to do otherwise might jeopardize the collection of the full or a substantial amount of tax debts that are overdue for more than five years. As there are no grounds for this fear under the present version of the Scavenger Act, which guards against such a possibility in so many words, there is no reason for saying, as the majority does, that the provision in the Act that the county collector “shall” apply for judgment for sale and that the circuit court “shall” give judgment after allowing a hearing on objections has other than a mandatory effect. I believe it would defeat the purpose of the Scavenger Act to hold it directory merely because the delinquencies in the instant case arose prior to the amendment of the Act. This is especially the case in view of the clear language of the amendment stating that the owner‘s personal liability is not affected by confirmation of a sale. This language supports the conclusion that actions in debt filed before the effective date of the amеndment would not abate in the event of a scavenger sale which occurs after the effective date, as the scavenger sale in this case must.
I believe that this appeal has been rendered moot for another reason—the amendment to the Scavenger Act which the majority emphasizes in concluding that the Act is currently mandatory and not directory. Regardless of the word-
ing of the Act at the time the parcels in question were permitted to be withdrawn from the scavenger sale, the amendment which the majority emphasizes explicitly states that it is the mandatory duty of the collector to include in the application for the scavenger sale all properties on which taxes have gone unpaid for five or more years. Because the parcels which are the subject matter of this proceeding and which were removed from a scavenger sale several years ago on the application of the collector and have remained in status quo pending the resolution of this case fall into that category, it will be mandatory, in view of the amendment, for the collector to include them in the next scavenger sale. I do not, therefore, understand how anything worthwhile is accomplished by quarreling over whether the Scavenger Act was mandatory or directory at the time the parcels in question were withdrawn from the previous sale when they clearly must be included in a future sale. The sensible thing to do, as I see it, is to dismiss this appeal as moot and permit the current law to operate on the parcels in question, as it was intended to do. People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231.The majority finds support for its position that prior to the amendment the Scavenger Act was not mandatory by pointing out that the amendment, although it made the duties of the collector mandatory by explicit language, did not use the same explicit language in describing the duties of the circuit court. The majority therefore postulates that since after the amendment the word “shall” is retained, unaccompanied by further mandatory language, in describing the function of the circuit court, the word “shall” wherever used in the Scavenger Act prior to its amendment was merely directory. The duty of the court, however, as set forth in the statute both prior and subsequent to the amendment, was to entertain objections of taxрayers and not objections of the
While perhaps the following discussion is academic in view of the amendments to the Scavenger Act discussed by the majority, as well as in this dissent, I believe that the act as it existed when the collector withdrew the parcels in question was mandatory and the collector had no authority, even at that time, to withdraw the parcels from the sale.
The scavenger sale procedure involves a six-step process. First, the collector publishes an advertisement giving notice of the intended application for judgment for sale of parcels which have been tax delinquent for the requisite time. Second, the collector aрplies for judgment for sale. Third, after hearing objections, the circuit court gives judgment ordering a public sale to the highest cash bidder. Fourth, the collector offers the property for sale. Fifth, the collector within the time prescribed by the statute files his report of the sale with the circuit court. Sixth, and last, the circuit court is requested to confirm the sale.
While the precise issue presented by this appeal—whether a parcel once included in the order of judgment and sale can later and prior to sale be deleted at the collector‘s request—was not decided in either People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, or In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, the appellate court in both cases held that the particular stage of the Scavenger Act proceeding it was called upon to address was mandatory, and the majority does not appear troubled by those
“Generally, the use of the word ‘shall’ is regarded as indicative of a mandatory intent” (People v. Youngbey (1980), 82 Ill. 2d 556, 562; see Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21). I find persuasive the fact that the Scavenger Act employs the word “shall” at the beginning of each step in the instructions for carrying out a scavenger sale except for the final step relating to application to the court for confirmation of the sale. By prefacing its description of each of the first five procedures with the word “shall,” and in adopting the scavenger sale as a method of returning tax-delinquent property to the tax rolls so that it might become revenue producing, the legislature demonstrated its intention to adopt a mandatory procedure. Looking to the purpose of the scavenger-sale legislation, I find nothing to suggest that the word “shall,” as repeatedly employed in the statute, should be regarded as indicating other than a mandatory intent.
In one of the provisions of the Scavenger Act the word “shall” is used twice in the same sentence. The provision in
If discretion were vested in the collector to decide when and what parcels should be included in the scavenger sale or if discretion could be exercised by the court other than at the time it hears objections of the property owners or at the time its confirmation is requested, the purpose the legislature had in mind would be completely contravened. The Act provides no standards for the collector to follow if his responsibilities under the Act are discretionary rather than mandatory. Allowing the collector uncontrolled discretion in deciding which tax-delinquent parcels to include and which to exclude would open the door to the possibility of discrimination among various owners, a result the legislature obviously could not have intended, and one which would not benefit the public. The collector would be free to permit
“There are a number of unique problems with suing in personam. An obvious concern is for fairness on the part of County officials in choosing who, out of thousands of delinquents, will be sued in this way. Other difficulties involve adequate sеrvice of process and the legal ability to satisfy a judgment by reaching the personal assets of the beneficiaries of a land trust.” J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 De Paul L. Rev. 1, 12 (1976) (hereinafter cited as Lawlor, Real Property Tax Delinquency).
These observations are borne out by inspection of the files of the clerk of the circuit court of Cook County in the cases involving the property the collector seeks here to exclude from the scavenger sale because of the pendency of
In addition, the collector does not appear to have been consistent in his choice of defendants in cases where the property was held in trust by a bank in years in which taxes on it were unpaid: in some instances the bank alone was sued, while in others the beneficiary was named as a defendant. The explanation for this difference in treatment is probably that the collector or the State‘s Attorney was unable to discover who the beneficiary was. This explanation brings into question the accuracy of the majority‘s statement that “[t]he State‘s Attorney, prior to the institution of the Scavenger Act proceedings, must have been satisfied that the actions in debt against the objectors involved here would be productive” (97 Ill. 2d at 448). Because this court has held that the trustee of a land trust is not liable for unpaid tаxes (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479), the collector presumably would have sued the beneficiary
More importantly, the observations contained in the law review article from which I have quoted above, combined with an examination of the circuit court clerk‘s files in the cases involving property the collector seeks to exclude from the scavenger sale, give me little confidence that orderly enforcement of the tax laws would be possible were the collector to rely primarily on in personam actions when taxes remain unpaid for more than five years, as he is free to do under the majority‘s holding that the scavenger sale provisions are merely permissive. I am unwilling to attribute this intent to the legislature, particularly in view of its repeated use of the word “shall” in the Scavenger Act.
The wоrding of section 275 of the Revenue Act is also helpful in construing the scavenger sale provision. Section 275 employs the word “may” in referring to the county board‘s authority to bring actions in debt to recover delinquent taxes. The use of that word indicates the legislature intended actions in debt as a permissible but discretionary means of recovering tax delinquencies. By way of contrast, the repeated use of the word “shall” with respect to property subject to sale under the Scavenger Act demonstrates the unambiguous intent of the legislature that properties be offered for sale after remaining delinquent for five years.
The collector argues that the scavenger sale can be had at any time after the action in debt proves unsuccessful, but this argument is answered by the Scavenger Act itself,
The majority also observes that the Scavenger Act, if applied as mandatory, conflicts with
A scavenger sale is similar to a foreclosure proceeding where the property subject to the sale is sold to the highest bidder. The Scavenger Act provides safeguards against the collector obtaining judgment against nondelinquent real estate which he arbitrarily chooses, thereby protecting the property owner against being deprived of his property without due process of law. The owner‘s due process rights, both substantive and procedural, are guaranteed by jurisdictional prerequisites which the circuit court is authorized and expected to enforce. The collector must first establish that the property has bеen tax delinquent for at least five years. Next, the property owner must receive notice and be given an opportunity to object and have a hearing on his objections. It is only if the court finds that the required delinquency exists and concludes that the property owner has no valid defenses to inclusion of his property in the scavenger sale that the court is required to apply the law and direct that the sale proceed. By that stage of the proceeding the court has fulfilled its role as guardian of the due process rights of the property owner.
The Scavenger Act does not tell the circuit court how it
People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, supports this view. That case involved an application for a tax deed which the trial court refused to issue. The reason for the refusal was the taxpayer‘s failure to attach a transcript of evidentiary findings to the court order as the statute required. The taxpayer‘s argument was that this requirement violated the separation-of-powers provision. The court rejected the argument, stating:
“[P]roceedings relating to tax sales, redemptions and deeds are entirely statutory in origin and nature. The section 266 amendment *** is but one of many statutory conditions upon which issuance of a tax deed is predicated. This requirement does not purport to direct how a court should decide cases nor does it circumscribe the power of a judge to determine facts and apply the law to them.” (40 Ill. 2d 293, 301-02.)
Similarly, the Scavenger Act does not circumscribe the power of the court to determine facts and apply the law to them. In fact it contemplates that, at an early stage of the proceeding, the court will perform that very function. In addition, the Act provides that at the end of the proceedings, in confirming the sale, the court shall determine that there has been full compliance with the requirements of the statute.
The Scavenger Act was designed to effect the public pol-
“[The amendment] is vital because it is going to end up saving substantial amounts of money for local govern-
ments and for the taxpayers especially in urban areas, and more importantly, it is going to help with the revitalization of our cities. At the present moment, many of these parcels of property are tax delinquent. They are unused and in fact, are unusable and this will reduce by five years the period of time necessary to get these properties back on the tax rolls and make them usable ***.” Transcript of 80th General Assembly Regular Session, at 41 (June 22, 1978).
I believe that a mandatory construction of the Act is necessary to effect its purpose, and I therefore dissent.
(No. 52944, 53038 cons.—
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERRY COBB et al., Appellants.
Opinion filed October 4, 1983.