Doran v. Cullerton

• Decision Date: 22 May 1972
• Docket Number: No. 44911,44911
• Citation: 283 N.E.2d 865,51 Ill.2d 553
• Parties: Philip A. DORAN, Appellee, v. P. J. CULLERTON, County Assessor, et al. Appeal of Laurene R. HOPPE et al.
• Court: Illinois Supreme Court

Page 865

283 N.E.2d 865

51 Ill.2d 553

Philip A. DORAN, Appellee, v. P. J. CULLERTON, County Assessor, et al. Appeal of Laurene R. HOPPE et al.

No. 44911.

Supreme Court of Illinois.

May 22, 1972.

Orlikoff, Prins, Flamm, & Susman, Chicago (Arnold M. Flamm, Chicago, of counsel), for defendant-appellant.

Price, Cushman, Keck, & Mahin, Chicago (Robert S. Cushman and Thomas E. Brannigan, Chicago, of counsel), for appellee.

KLUCZYNSKI, Justice.

This is an appeal from the circuit court of Cook County which held the homestead exemption, authorized by section 19.23--1 of the Revenue Act of 1939 (Ill.Rev.Stat.1971, ch. 120, par. 500.23--1), as applied to assessments made in 1971 and taxes payable in 1972, unconstitutional. This decision was appealed to this court pursuant to Rule 302(a) of the Rules of the Supreme Court. Ill.Rev.Stat.1971, ch. 110A, par. 302(a).

The Act in question (Ill.Rev.Stat.1971, ch. 120, par. 500.23--1) was passed by the 77th General Assembly in June of 1971 and approved by the Governor on July 13, 1971 (P.A. 77--266).

This is an amendatory act to the Revenue Act of 1939, filed May 17, 1939, as amended. The Act, passed as P.A. 77--266, reads as follows:

'An Act to add section 19.23--1 to and to repeal Section 19.24 of the 'Revenue Act of 1939', filed May 17, 1939, as amended.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Section 19.23--1 is added to the 'Revenue Act of 1939', filed May 17, 1939, as amended, the added Section to read as follows:

Sec. 19.23--1. A homestead exemption limited to a $1,500 maximum reduction from the value, as equalized or assessed by the Department of Local Government Affairs, of real property that is occupied as a residence by a person 65 year of age or older who is liable for paying real estate taxes on the property and is an owner of record of the property or has a legal or equitable interest therein as evidenced by a written instrument, except for a leasehold interest. This amendatory Act of 1971 applies to assessments made in 1971 and thereafter and taxes payable in 1972 and thereafter and the county assessor or supervisor of assessments, as the case may be, shall afford persons qualifying for exemptions under it a reasonable opportunity to file for such exemptions after its effective date for the year 1971, and on the first day of March of each succeeding year.

Section 2. Section 19.24 of said Act is repealed.

Section 3. If the application of this amendatory Act to assessments made in 1971 or to 1971 taxes payable in 1972 is held invalid on the ground of retroactivity or because of violation of the Constitution of 1870, such invalidity shall not affect the application of this amendatory Act to assessments and taxes for subsequent years or impair its validity under the Constitution of 1970.'

The proceedings in the circuit court were instituted by Philip A. Doran, a taxpayer under the age of 65 years who alleged that he represented all taxpayers similarly situated.

The complaint named as defendant P.J. Cullerton, Cook County Assessor, Bernard J. Korzen, Cook County Collector, and Edward V. Hanrahan, State's Attorney of Cook County. The complaint further named the latter as the attorney for all taxpayers over the age of 65 who would qualify for the exemption authorized by the statute. By order of court the State's Attorney was permitted to withdraw and was stricken as a party defendant. Thereafter leave was granted to Robert J. Lenhausen, Director of the Department of Local Government Affairs to intervene as party defendant. An additional party defendant, Laurene R. Hoppe, alleged to represent the class of taxpayers over the age of 65, was also permitted to intervene. Only the intervenors are appellants herein.

Section 19.23--1, added by Public Act 77--266, grants an exemption of $1,500 assessed valuation of 'real property that is occupied as a residence by a person 65 years of age or older who is liable for paying real estate taxes on the property and is an owner of record of the property or has a legal or equitable interest therein as evidenced by a written instrument, except for a leasehold interest.' The amendatory provision specifically stated that said exemption applied to the assessments for the year 1971 for taxes payable in 1972, and for all subsequent years thereafter.

This homestead exemption would not be valid under the constitution of 1870 (Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465), but is authorized by section 6 of article IX of the Illinois constitution of 1970, S.H.A., which provides in part: 'The General Assembly by law may grant homestead exemptions or rent credits.'

The controversy herein arises due to the fact that the Illinois constitution of 1870 was in full force and effect from January 1, 1971, through and including June 30, 1971. The Illinois constitution of 1970 did not become effective until July 1, 1971. (Sec. 1 of Adoption Schedule.) Thus, the paramount question is whether the General Assembly could apply section 6 of article IX of the Illinois constitution of 1970 retroactively to a time antedating the effective date of said constitutional provision. The intervening defendants urge that People ex rel. Ogilvie v. Lewis, 49 Ill.2d 476, 274 N.E.2d 87 is dispositive of the issue. We do not agree. In the Ogilvie case we approved the enactment of legislation in anticipation of an adopted but not yet effective constitutional provision. However, therein the act in question was prospective in nature only and the rights and duties established did not antedate the effective date of the constitution of 1970.

The question herein is not the power of the General Assembly to apply an act to a time antedating its passage and approval for that is well established where clear legislative intent is present. (People ex rel. Thomson v. Barnett, 344 Ill. 62, 176 N.E. 108.) In view of the language of section 19.23--1, such intent is manifest herein but that intent cannot be effectuated where it would run Contra to a constitutional provision.

In this proceeding the Illinois constitution of 1870 was at all times in full force and effect from January 1, 1971, to and including June 30, 1971, and during this period a homestead exemption as contemplated by section 19.23--1 was void.

Since the legislative intent of the retroactive application of the homestead exemption of section 19.23--1 cannot be applied for the entire year of 1971, we are constrained to read into the amendatory Act the intent of the General Assembly to have said exemption remain in force and effect for half of 1971. It is clear in reading the final paragraph of the Act that the General Assembly did not intend such application considering this partial invalidity.

Additionally, the date upon which real estate is assessed in the State of Illinois is January 1 of each year (Ill.Rev.Stat.1971, ch. 120, par. 508a), and since on January 1, 1971, the Illinois constitution of 1870 was the paramount law of this State, the homestead exemption is not applicable for any portion of the year in question.

The last paragraph of the amendatory Act specifically stated that in the event of the invalidity of the homestead exemption for assessments made in 1971 for taxes payable in 1972 'such invalidity shall not affect the application of this amendatory Act to assessments and taxes for subsequent years or impair its validity under the Constitution of 1970.'

This severability clause presents an additional question, the validity of the homestead exemption for assessments made in 1972 and subsequent years. Plaintiff argues that the statute is unconstitutional because it violates the equal protection provisions of the Federal and State constitutions. All interested parties urge that this issue is properly before this court, although the content of the complaint and the decree entered by the trial court are not specifically directed to this issue. However, all factual matters necessary for this determination are presented in the record before us and this issue has been argued and briefed by all parties. We also find that this matter is of great public importance, and will therefore consider plaintiff's contention.

In urging the unconstitutionality of this Act, the plaintiff argues (1) that the homestead exemption creates two classes of owners, one over 65 and one under 65, without regard to wealth; and (2) it applies only to those affluent who own a residence and thus discriminates against lessees.

In Doolin v. Korshak, 39 Ill.2d 521, at 527--528, 236 N.E.2d 897, at 901, we stated: 'The governing principles are clear. 'It is well established that the legislature has broad powers to establish reasonable classifications in defining subjects of taxation.' (Klein v. Hulman, 34 Ill.2d 343, 346, 215 N.E.2d 268, 270.) The 'prohibition of the Equal Protection Clause goes no further than the inviduous discrimination.' (Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563, 573.) 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' (McGowan v. State of Maryland (1961), 366 U.S. 420, 425--426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399.) And '(t)he burden is on the one attacking the legislative...