Fox v. Rosewell

• Decision Date: 12 December 1977
• Docket Number: No. 77-126,77-126
• Citation: 55 Ill.App.3d 860,371 N.E.2d 287,13 Ill.Dec. 570
• Parties: , 13 Ill.Dec. 570, 98 A.L.R.3d 1075 James L. FOX, Plaintiff-Appellant, v. Edward J. ROSEWELL, Individually and as Treasurer and ex-officio County Collector of Cook County, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 287

371 N.E.2d 287

55 Ill.App.3d 860, 13 Ill.Dec. 570,

98 A.L.R.3d 1075

James L. FOX, Plaintiff-Appellant, v. Edward J. ROSEWELL, Individually and as Treasurer and ex-officio County Collector of Cook County Defendant-Appellee.

No. 77-126.

Appellate Court of Illinois, First District, First Division.

Dec. 12, 1977.

Moses, Gibbons, Abramson & Fox, Chicago, for plaintiff-appellant.

Bernard Carey, State's Atty. of Cook County, Paul P. Biebel, Jr., and Thomas D. Rafter, Asst. State's Attys., Chicago, for defendant-appellee.

McGLOON, Justice.

Plaintiff, James Fox, an owner of real estate in the Village of Wilmette in Cook County, Illinois, brought this class action challenging the constitutionality of sections 224 and 224.1 of the Revenue Act of 1939 (hereinafter referred to as Revenue Act.) (Ill.Rev.Stat.1973, ch. 120, pars. 705 and 705.1.) Section 224 requires real estate taxpayers in counties of 1,000,000 or more inhabitants to pay their taxes for 1973 and subsequent years in two installments on an accelerated basis (March 1 and August 1). For counties with less than 1,000,000 inhabitants, section 224 requires the payment of real estate taxes in two installments on an unaccelerated basis (June 1 and September 1). Section 224.1 provides that in counties with less than 3,000,000 inhabitants the respective county boards may adopt by ordinance or resolution the accelerated payments schedule provided for in section 224.

Plaintiff argued at the trial level that sections 224 and 224.1 of the Revenue Act of 1939 were unconstitutional in that they violated the equal protection and due process provisions of the State and Federal constitutions and the special legislation prohibition of the State constitution. Pursuant to the defendant Collector of Cook County's motion, the trial court issued a memorandum order finding sections 224 and 224.1 constitutional and dismissed the taxpayer's complaint.

On appeal plaintiff reiterates his contention that sections 224 and 224.1 of the Revenue Act violate the equal protection and due process provisions of the State and Federal constitutions and the special legislation prohibition of the Illinois constitution. The defendant Collector of Cook County raises the additional issue of whether the plaintiff had an adequate remedy of law thus barring injunctive or declaratory relief.

We affirm.

The undisputed facts alleged in plaintiff's complaint indicate that plaintiff is a taxpayer owning land in Cook County, a county with a population in excess of 1,000,000 inhabitants; that this land is improved with a single-family residence; that the installments of his 1973 real estate taxes were due on March 1, 1974 and September 15, 1974 (due to the fact that the August 1 payment date was extended because of a delay in the mailing of the 1973 bills); that the plaintiff paid both installments of his 1973 taxes on November 26, 1974; that he was required pursuant to section 224 of the Revenue Act to pay a 1% Per month penalty of $93.29 for the period March 1, 1974 to November 26, 1974 on the first installment and a similar interest penalty of $32.73 for the period September 15, 1974 through November 26 1974 on the second installment; and that the entire interest of $32.73 on the second installment and $30.87 of the interest on the first installment are illegal and should be refunded. The latter figures apparently represent the difference between the penalty assessed plaintiff under the accelerated tax payments schedule and the penalty the taxpayer would have paid under the unaccelerated schedule. The complaint also prayed for a refund for similarly situated taxpayers in Cook County, a declaration that section 224 and 224.1 of the Revenue Act are unconstitutional, and a permanent injunction against the Collector of Cook County from applying or enforcing section 224 of the Revenue Act.

In rejecting plaintiff's constitutional attack and dismissing his complaint, the trial court took judicial notice of the following facts: that the population of Cook County is approximately one-half of the population of the entire State; that the City of Chicago within the county is by far the largest city in population of any other city in the entire State of Illinois; that the assessed value of property in Cook County is greater than the assessed value of any other county in the State of Illinois; that the cost of education, police and fire protection, sanitation, and other services provided to the people of Cook County is at variance with that of any other county in the State of Illinois; and that the financial needs of providing these services are not only greater, but more urgent, more complicated, and more costly.

We first consider defendant's contention that plaintiff is barred from seeking injunctive or declaratory relief because plaintiff had an adequate remedy at law. Defendant points out that section 194 of the Revenue Act provides that all or in part of a real property tax may be protested. (Ill.Rev.Stat.1973, ch. 120, par. 675.) However, it is well settled that a party may challenge the constitutionality of a statute or an ordinance on its face, without prior resort to related administrative remedies. (Hill v. Daley (1975), 28 Ill.App.3d 202, 328 N.E.2d 142; People ex rel. Kreda v. Fitzgerald (1975), 33 Ill.App.3d 209, 338 N.E.2d 76.) Furthermore, although it is the general rule that equity will not assume jurisdiction to grant relief where an adequate remedy at law exists (White v. City of Ottawa (1925), 318 Ill. 463, 149 N.E. 521), a taxpayer may seek equitable relief where the tax is unauthorized by law or levied upon exempt property. (Clarendon Associates v. Korzen (1973), 56 Ill.2d 101, 306 N.E.2d 299.) Defendant argues that even though the plaintiff questions the constitutionality of the statute the questioned tax does not fall within the "unauthorized by law" exception. Defendant cites the following holding in LaSalle National Bank v. County of Cook (1974), 57 Ill.2d 318, 324, 312 N.E.2d 252, 255:

"The legal remedy by way of payment under protest followed by objections to the application for judgment for delinquent taxes provides an adequate remedy at law wherein the alleged irregularities and violations of plaintiffs' constitutional rights may be litigated and, if warranted, relief granted. This court has held that it is proper to raise constitutional questions arising from alleged improper assessments in this manner. (Citations omitted.)"

The instant case, however, is distinguishable from LaSalle. In LaSalle plaintiffs alleged that their taxes were based on excessive assessments and sought a judgment declaring certain assessment procedures invalid. The Supreme Court concluded in LaSalle that plaintiffs were simply complaining that their property was assessed at too high a value. The instant complaint questions the constitutionality of sections 224 and 224.1 of the Revenue Act on their face. As such, plaintiff raises the issue of whether the interest penalty assessed him is "authorized by law" and as such he is not barred from seeking equitable relief.

We next consider plaintiff's attack on the constitutionality of sections 224 and 224.1 of the Revenue Act. Plaintiff first contends that these sections are violative of the special legislation prohibition of the State constitution. The Illinois constitution provides: "The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination." (Ill.Const.1970, art. IV, § 13.) Special legislation is that which imposes a particular burden, confers a special right, privilege or immunity upon a portion of the people of the state. If, however, there is a reasonable basis for the classification, and it bears a reasonable and proper relation to the purposes of the act and the evil it seeks to remedy, it does not violate the constitutional proscription of special or local laws. (Bridgewater v. Hotz (1972), 51 Ill.2d 103, 281 N.E.2d 317.) Only if a classification is clearly unreasonable and palpably arbitrary will a court declare the statute invalid. (DuBois v. Gibbons (1954), 2 Ill.2d 392, 118 N.E.2d 295.) A classification is not arbitrary if any state of facts can reasonably be conceived that would sustain it. (Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 336 N.E.2d 881.) Moreover, the burden of proving that a statute is clearly unreasonable or palpably arbitrary is on the one who challenges it. People ex rel. Vermillion County Conservation District v. Lenover (1969), 43 Ill.2d 209, 251 N.E.2d 175.

Applying the above principles to the instant case, we hold that plaintiff has not met his burden of proving that section 224 of the Revenue Act is clearly unreasonable or palpably erroneous. Section 224 of the Revenue Act distinguishes between counties of 1,000,000 or more inhabitants and those with less than 1,000,000 inhabitants. A classification based on population is not objectionable if it is reasonable and bears a rational relationship to the goal which...