Hulse v. Kirk

• Decision Date: 01 May 1975
• Docket Number: No. 60476,60476
• Citation: 329 N.E.2d 286,28 Ill.App.3d 839
• Parties: Minard E. HULSE, Jr., et al., Plaintiff-Appellant, v. Frank A. KIRK, Director of the Dept. of Local Government Affairs of the State of Illinois, and Stanley T. Kusper, Jr., County Clerk of Cook County, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 286

329 N.E.2d 286

28 Ill.App.3d 839

Minard E. HULSE, Jr., et al., Plaintiff-Appellant, v. Frank A. KIRK, Director of the Dept. of Local Government Affairs of the State of Illinois, and Stanley T Kusper, Jr., County Clerk of Cook County, Illinois, Defendants-Appellees.

No. 60476.

Appellate Court of Illinois, First District, Third Division.

May 1, 1975.

Robert S. Cusman, Thomas E. Brannigan, Chicago, for plaintiff-appellant; Price, Cushman, Keck, Mahin & Cate, Chicago, of counsel.

William J. Scott, Atty. Gen., Chicago, for defendants-appellees; Jerrald B. Abrams, Chicago, of counsel.

MEJDA, Justice.

This is an action for a declaratory judgment and an injunction commenced by plaintiff, Minard E. Hulse, Jr., as a taxpayer on behalf of himself and all other locally assessed taxpayers in Cook County, to prevent the defendants from certifying and applying the State real estate tax multiplier to the assessments made by the County Assessor of Cook County for 1974 and subsequent years. The defendants are Frank A. Kirk, Director of the Department of Local Government Affairs of the State of Illinois (Department) and Stanley T. Kusper, Jr., County Clerk of Cook County, Illinois (Clerk). Defendants filed separate motions to dismiss, which were sustained, and the trial court entered judgment dismissing the action. Plaintiff appeals.

The gist of plaintiff's complaint in the trial court and his argument here on appeal is that since the purposes and objectives of the real estate equalization statutes (Ill.Rev.Stat.1971, ch. 120, pars. 611 et seq.) are contrary to and inconsistent with the Real Property Assessment Classification Ordinance adopted by the County of Cook on December 17, 1973, pursuant to authority granted in Section 4(b) of Article IX of the Illinois Constitution of 1970, S.H.A. and subsequent statutory mandate (Ill.Rev.Stat.1973, ch. 120, par. 501a.), 'the equalization sections of the Revenue Act of 1939 as amended cannot lawfully and constitutionally be applied to Cook County for the taxes of the year 1974 and subsequent years.' The aforesaid classification ordinance divides real estate in Cook County into five classifications and provides that the lowest class shall be assessed at 22% And the highest class at 40% Of market value. It is argued that Section 9 of the Transition Schedule to the Constitution of 1970, which was also adopted by the electorate, prohibits the application and enforcement of those statutes presently in force which are inconsistent with the provisions of the new Constitution.

It is contended that the entire scheme of assessing different classes of real estate at differing percentages of market value as authorized by the 1970 Constitution is contrary to and inconsistent with section 146 et seq. of the Revenue Act (Ill.Rev.Stat.1971, ch. 120, par. 627 et seq.) and the purpose stated therein to equalize assessments on a county-by- county basis throughout the State in such a manner as to produce within each county a ration of assessed to full, fair cash value equivalent to 100%. Plaintiff maintains, therefore, that the above equalization statutes are invalid, at least as to Cook County, and that the Department will certify and the Clerk will apply a multiplier unless enjoined. In paragraph 10 of the complaint plaintiff specifically alleges that he 'and the owners of real estate and personal property on whose behalf he is acting, have no remedy to prevent the threatened illegal increase in their assessments by the defendants except through a declaration (sic) judgment or an injunction entered in or ordered to issue by decree of this Court.'

Defendant Kusper, in his motion to strike and dismiss the complaint, alleged that the complaint failed to state a cause of action; that the plaintiff has an adequate remedy at law; that the complaint fails to allege facts indicating imminent irreparable injury; that declaratory relief is improper because plaintiff has failed to show any right to injunctive relief; and the complaint is not properly brought as a class action. Defendant Kirk, in his motion to strike and dismiss the complaint, alleged failure to state a cause of action; failure to exhaust administrative remedies; failure to indicate imminent irreparable injury; and the complaint's failure to state a proper cause of action as a class action.

Preliminarily, the court's jurisdiction to entertain plaintiff's action for declaratory and injunctive relief must be determined. Since our disposition of this appeal affirms the judgment of the circuit court for the reasons hereinafter set forth, the question whether the suit was commenced as a proper class action need not be reached.

The sufficiency of the allegations of the complaint and the nature of the relief sought are of primary importance here. It has often been held that declaratory judgment is not a viable alternative to the statutory remedies provided by the Revenue Act (LaSalle Nat. Bk. v. County of Cook (1974), 57 Ill.2d 318, 322, 312 N.E.2d 252), and that relief should not be afforded under the Declaratory Judgment Act (Ill.Rev.Stat.1971, ch. 110, par. 57.1) in any tax case which would not merit relief in equity by injunction. (Goodyear Rubber Co. v. Tierney (1952), 411 Ill. 421, 431, 104 N.E.2d 222; People ex rel. Hamer v. Jones (1968), 39 Ill.2d 360, 369, 235 N.E.2d 589, LaSalle Nat. Bk. v. County of Cook, Supra, page 322, 312 N.E.2d 252.) It is clearly established that taxation of property is a legislative and not a judicial function (see LaSalle Nat. Bk. v. County of Cook, Supra, page 323, 312 N.E.2d 252), and that the judiciary has no power to supervise the legislative branch of our State government. (Slack v. City of Salem (1964), 31 Ill.2d 174, 177, 201 N.E.2d 119.) The usual and preferred vehicle through which judicial relief from improper, erroneous or otherwise excessive assessments is sought and gained is the legal remedy provided by statute for paying taxes under protest and filing objections to the application for judgment. (Ill.Rev.Stat.1971, ch. 120, pars. 675, 716; Clarendon Associates v. Korzen (1973), 56 Ill.2d 101, 104, 306 N.E.2d 299.) The general rule in the field of taxation is that equity will not assume jurisdiction where a remedy at law exists and that remedy is adequate. (See Clarendon Associates v. Korzen, Supra.) Regardless of the adequacy of the remedy at law, a taxpayer may seek relief by way of injunction in two cases: 1) where the tax is unauthorized by law, or 2) where a tax is levied upon property which is exempt from taxation. LaSalle Nat. Bk. v. County of Cook, Supra; and Clarendon Associates v. Korzen, Supra.

In all other cases where injunctive and declaratory relief is sought from allegedly excessive property assessments, it must be presumed that the remedy at law is adequate. The taxpayer must therefore allege in his complaint for injunctive relief a special ground for equitable jurisdiction, such as a fraudulently excessive assessment, and also allege that an adequate remedy at law is not available. (See Clarendon Associates v. Korzen, Supra, and LaSalle Nat. Bk. v. County of Cook, Supra.) The question of whether in a particular case equity will assume jurisdiction depends always on the merits as disclosed by the facts and circumstances set up in the complaint. Ames v. Schlaeger (1944), 386 Ill. 160, 166, 53 N.E.2d 937.

The instant complaint must be examined to determine whether plaintiff has pleaded sufficient allegations to come within either of the two exceptions stated in Clarendon, or if not, whether he has sufficiently pleaded an independent ground for equitable relief and also the lack of an adequate remedy at law.

In his complaint plaintiff alleged that he brings this action 'on behalf of himself and all other owners of taxable real and personal property in Cook County, Illinois, which is assessed by the County Assessor of Cook County, Illinois'; that the Director has the duty to equalize the assessments in Cook County as made by the local assessing authorities insofar as the statutory provisions (Ill.Rev.Stat.1971, ch. 120, pars. 627, 629a, 630 and 632) are not in conflict with the classification ordinance adopted by the County Board as authorized by Article IX, Section 4(b) of the Constitution of 1970; that defendant Clerk is required to apply the multiplier as certified to him by defendant Director to the local assessments and to use the assessments thus equalized in computing tax rates and in extending rates; that the purpose of the equalization provisions noted above is inconsistent with the classification ordinance of Cook County adopted under the authority of the 1970 Constitution; that the scheme of assessing different classes of real estate at differing percentages of market value is contrary to and inconsistent with the equalization provisions of the Revenue Act of 1939 as amended (Ill.Rev.Stat.1971, ch. 120, pars. 628, 629a, 630, 632, 642 and 643); that Section 9 of the Transition Schedule to the Constitution of 1970 prohibits the application and enforcement of existing laws which are contrary to or inconsistent with the new Constitution; that the defendant Director will, without authority, certify a multiplier, and the defendant Clerk will apply the multiplier to all local assessments of real and personal property in Cook County; that '(p)laintiff and the owners of real estate and personal property on whose behalf he is acting, have no remedy to prevent the threatened illegal increase in their assessments'; and that the matters alleged in the complaint are urgent. In the prayer of the complaint plaintiff seeks a declaration that the Director has 'no legal right to and cannot lawfully' certify a multiplier to defendant Clerk; a declaration that defendant Clerk may not apply any multiplier certified to him to the assessments of real and personal property made by the Assessor of Cook County; and that the defendants be enjoined from respectively certifying...