Bistor v. McDonough

• Decision Date: 14 June 1932
• Docket Number: No. 21001.,21001.
• Citation: 181 N.E. 417,348 Ill. 624
• Parties: BISTOR et al. v. McDONOUGH, County Collector.
• Court: Illinois Supreme Court

348 Ill. 624

181 N.E. 417

BISTOR et al.

v.McDONOUGH, CountyCollector.

No. 21001.

Supreme Court of Illinois.

April 8, 1932.

Rehearing Denied June 14, 1932.

Suit by Jamed E. Bistor and others against Joseph B. McDonough, County Collector.From a decree dismissing the bill for want of equity, the complainants appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Philip L. Sullivan, judge.

Watkins, Ten Hoor & Gilbert, of Chicago, for appellants.

John A. Swanson, State's Atty., John E. Pedderson and Louis H. Geiman, all of Chicago (Hayden N. Bell, of Chicago, of counsel), for appellee.

DE YOUNG, J.

James E. Bistor and more than five thousand other owners of real property joined in a bill of complaint in the circuit court of Cook county against Joseph B. McDonough, county treasurer and ex officio collector, to enjoin him from seeking the recovery of judgment for the general taxes levied on the lots and parcels of land of the complainants for the year 1929 and from offering to sell, or making sale of such lots and parcels to satisfy those taxes.The defendant filed a demurrer to the bill, the demurrer was sustained, and the bill was dismissed for the want of equity.From that decree, the complainants prosecute this appeal.

It is alleged in the bill that the board of assessors and the board of review of Cook county and the tax commission of Illinois, during a long period of years, and particularly in the year 1929, deliberately, fraudulently, and illegally omitted to assess or underassessedpersonal property; that in consequence the constitutional provision requiring the uniform assessment of property according to its value was ignored, personal property was relieved of a part of its share of the burden of taxation, and real estate was compelled to bear that part in addition to its proportionate share of the annual tax levies; that the board of assessors, for the year 1929, made a total assessment of $751,659,685 on personal property in Cook county; that the board of review thereafter fraudulently reduced this total, for the particular year, to $675,907,085; that the total assessment upon real estate in Cook county for the year 1929 was $3,431,242,182; that by these assessments 83 1/2 per cent. of the burden of taxation in Cook county for the year 1929 was placed upon real estate and 16 1/2 per cent. upon personal property; that the board of assessors and the board of review knew that on April 1, 1929, the value of real estate in Cook county was approximately ten billion dollars and of personal property thirty billion dollars, and that it was the duty of these boards to place approximately 25 per cent. of the total assessment upon real and 75 per cent. on personal property, but that they deliberately and fraudulently refused to make such a division and apportionment of the tax burden.

Additional allegations of the bill are that these boards failed to place an adequate value on the personal property of many individuals, banks, estates, and corporations whose assets, inventories, and stocks of goods were available to them, and that in the year 1929, and for years prior thereto, they assessed the personal assets of the estates of decedents and other estates at not more than 5 per cent. of their known value; that the board of assessors and the board of review knew that the assessment upon personal property was grossly inadequate and represented only a fraction of the value of such property in Cook county on April 1, 1929; that the action of these boards respecting the assessment of personal property was a part of their plan to impose upon real estate a tax burden in excess of that which it equitably and under the rule of uniformity should be compelled to bear.

It is further alleged that upwards of 43,000 written complaints of excessive assessments upon as many parcels of real estate were filed with the board of review in the year 1929, but only 1,600 of them were heard, and the board refused to hear the remainder; that in 1927, over 35,000 and in 1928 more than 100,000 similar complaints were filed, but in the former year only a small number and in the latter year none of the complaints were heard; that the Illinois tax commission was petitioned to grant relief to the complainants and other real estate taxpayers from the assessment of 1929, but that the commission refused to order the board of assessors and the board of review of Cook county to make a new assessment in conformity with the constitutional requirement of uniformity; and that the complainants knew that any appeal to the board of assessors, the board of review, or the state tax commission to correct their assessments would be futile.

Concluding allegations of the bill are that the assessment upon each parcel of the complainants' real estate includes a portion of the assessment that should have been levied upon personal property; that each complainant offers to pay in taxes such sum as the value of his real estate bears to the value of all taxable property in the county uniformly assessed; that the defendant has threatened to collect the taxes extended against the real estate of the complainants by seizure, levy, and sale of their real and personal property; and that he will do so unless enjoined.

The appellants neither charge that real property was omitted from the assessment nor that the valuations placed upon such property were excessive.They allege, on the contrary, that the real property in the county, taken as a whole, was assessed slightly above one-third of its actual value.No claim is made that the assessments upon their parcels of real estate are not uniform and fair as compared with other assessments of real property.The appellants contend, however, that the board of assessors and the board of review of Cook county, in assessing property for purposes of taxation, discriminated in favor of personal and against real property; that the assessments upon the lots and parcels of real estate of the appellants are therefore void altogether or at least to the extent of the discrimination against such lots and parcels; that the appellants have no adequate remedy at law, and hence that they may invoke the interposition of a court of equity to prevent the collection of the discriminatory taxes levied upon their real estate.The appellee, on the contrary, contends that under the stateConstitution the power or authority to assess property for taxation is vested exclusively in assessors elected or appointed in the manner provided by law; that, where an assessment is made by such officers, no court has jurisdiction over it in the absence of fraud, nor in case of fraud, unless the taxpayer has first exhausted his remedy before the assessing and reviewing tribunals; that, if the reviewing body or authority fails or refuses to act, the taxpayer must, by mandamus, compel action before a judicial question can arise, and necessarily before any court is open to him: and that, in any event, the bill fails to show facts from which the court can determine whether the alleged omitted personal property was taxable.

Section 20 of article 8 of the Constitution of 1818 provided: ‘That the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.’Upon the same subject, section 2 of article 9 of the Constitution of 1848 read: ‘The general assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise.’The pertinent part of section 1 of article 9 of the present Constitution provides: ‘The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property-such value to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise. * * *’ Under our successive Constitutions uniformity of taxation has been and is a mandate to the taxing authorities and lies at the foundation of all taxing power.People v. Orvis, 301 Ill. 350, 133 N. E. 787, 24 A. L. R. 325.This rule of uniformity requires that one person shall not be compelled to pay a greater proportion of the taxes, according to the value of his property, than another.Bureau County v. Chicago, Burlington & Quincy Railroad Co., 44 Ill. 229;Chicago & Northwestern Railway Co. v. Boone County, 44 Ill. 240.Uniformity in taxing implies equality in the burden of taxation; and this equality cannot exist without uniformity in the basis of assessment, as well as in the rate of taxation.Greene v. Louisville & Interurban Railroad Co., 244 U. S. 499, 501, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88.

Section 1 of article 9 of the Constitution requires the value of property for taxation ‘to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise.’The power to impose burdens and to raise money is a legislative power, and may be exercised only by or under the authority of the Legislature.Jeffery Building Corp. v. Harding, 347 Ill. 336, 179 N. E. 881;People v. Sweitzer, 339 Ill. 28, 170 N. E. 728;Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197;Rees v. City of Watertown, 86 U. S. (19 Wall.) 107, 22 L. Ed. 72;People v. Millard, 307 Ill. 556, 139 N. E. 113;Burton Stock Car Co. v. Treger, 187 Ill. 9, 58 N. E. 418;Keokuk & H. Bridge Co. v. People, 185 Ill. 276, 56 N. E. 1049.The persons elected or appointed, pursuant to section 1 of article 9 of the Constitution, to ascertain the value of property for the purposes of taxation, are exclusively invested with that power, and...