Finn v. Tucker

• Decision Date: 14 March 1980
• Docket Number: No. 79-51,79-51
• Citation: 81 Ill.App.3d 1038,37 Ill.Dec. 468,402 N.E.2d 358
• Parties: , 37 Ill.Dec. 468 Newton E. FINN, Plaintiff-Appellee, v. Terence A. TUCKER, as Treasurer and Ex-Officio County Collector of Lake County, Illinois, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 358

402 N.E.2d 358

81 Ill.App.3d 1038, 37 Ill.Dec. 468

Newton E. FINN, Plaintiff-Appellee, v. Terence A. TUCKER, as Treasurer and Ex-Officio County Collector of Lake County, Illinois, Defendant-Appellant.

No. 79-51.

Appellate Court of Illinois, Second District.

March 14, 1980.

Dennis P. Ryan, State's Atty., Robert J. Masini, William J. Blumthal, Asst. State Attys., Waukegan, for defendant-appellant.

Newton E. Finn, Finn, Geiger & Rafferty, Waukegan, for plaintiff-appellee.

LINDBERG, Justice.

Defendant-appellant, Terence A. Tucker appeals from an order of the Circuit Court of Lake County enjoining him from collecting or attempting to collect any increases in 1977 real estate taxes resulting from tardily-published assessments.

Plaintiff-appellee, Newton Finn, is the owner of certain real property located in Waukegan Township in Lake County, Illinois. On August 31, 1978, he filed a complaint seeking to enjoin collection of a portion of the 1977 real estate taxes on all real property located in seventeen of the eighteen Lake County townships. Terence Tucker, Treasurer of Lake County and as its Ex-Officio Collector, was named as defendant.

Plaintiff alleged in his complaint that, with the exception of Shields Township, Lake County real estate assessment lists were not published by December 15, 1977, as required by statute. (Ill.Rev.Stat.1977, ch. 120, par. 584.) Plaintiff further alleged that due to this tardy publication, the assessment lists were void and unauthorized by law. As relief, plaintiff requested that the court enjoin the defendant from collecting or attempting to collect that portion of the 1977 real estate taxes which constituted an increase in the prior year resulting from computations based on the tardily-published assessment list.

Plaintiff moved for summary judgment and defendant moved to dismiss pursuant to Sections 45 and 48 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, pars. 45 and 48.) On November 3, 1978, the court ruled that equity did not have jurisdiction in the case, and granted the defendant's motion to dismiss. However, the court set the matter for reconsideration for November 6, 1978. On that date, the court vacated the order which had granted the defendant's motion to dismiss. The defendant then filed an answer and affirmative defenses. On November 24, 1978, the court heard arguments on plaintiff's motion for summary judgment. On November 28, 1978, the trial court granted the plaintiff's motion for summary judgment, finding that with the exception of Shields Township, all real estate assessment lists were published after the time prescribed in Illinois Revised Statutes, 1977, chapter 120, paragraph 584, and therefore were not legally authorized. The trial court ordered that a permanent injunction issue instanter against the defendant, enjoining him from collecting or attempting to collect any increase in plaintiff's 1977 real estate tax resulting from the tardily-published assessment, and further from collecting or attempting to collect any increases in 1977 real estate taxes resulting from tardily-published assessments on realty located in Lake County, Illinois, with the exception of real property located in Shields Township.

The defendant filed a motion to stay enforcement of the judgment order, and a timely notice of appeal. The trial court granted the defendant's motion for a stay.

Four issues are presented by this appeal: (1) did the late publication of 1977 real estate assessments make the 1977 real property tax increases "unauthorized by law" so that an injunction against the collection of the tax was a proper remedy, (2) did the trial court err in enjoining collection of real property tax increases in those townships which were conducting quadrennial assessments in 1977, (3) did the trial court err in granting relief not only to plaintiff personally but also to all other property taxpayers in the affected townships, and (4) does Section 318.1 of the Revenue Act (Ill.Rev.Stat.1978 Supp., ch. 120, par. 799.1) which became law on November 30, 1978, validate the assessments in question.

The usual vehicle through which relief from improper assessments is sought and gained is the legal remedy provided by statute for paying taxes under protest and filing objection to the application for judgment. (Ill.Rev.Stat.1977, ch. 120, pars. 675 and 716.) As a general rule equity will not grant relief where an adequate remedy at law exists. This preference for legal over equitable remedies in tax cases is to insure that taxing units will not face protracted delays in the necessary collection of taxes. (See Clarendon Associates v. Korzen (1973), 56 Ill.2d 101, 306 N.E.2d 299.) There are, however, two exceptions to this general rule namely where a tax is "unauthorized by law" or is levied on exempt property. In such cases, equitable relief is available without a showing that an adequate remedy at law is lacking. Lackey v. Pulaski Drainage Dist. (1954), 4 Ill.2d 72, 74, 122 N.E.2d 257, 259; Clarendon Associates ; see also Parham, "Procedures for Obtaining Relief with Respect to Property Tax Assessments and Rates," 61 Ill.Bar J. 306 (1973).

Section 103 of the Revenue Act provides in pertinent part:

"In counties containing less than 2,000,000 inhabitants, as soon as the county assessor, supervisor of assessments or board of assessors, as the case may be, has completed the assessment in the county or in the assessment district he or it shall, in each year of a quadrennial assessment of real property, publish for such county or assessment district a full and complete list of the assessment of real and personal property, by townships if the county be so organized. In years other than years of a quadrennial assessment of real property, the assessor, supervisor of assessments or board of assessors, as the...