Jarman v. Bd. of Review of Schuyler Cnty.

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Jarman v. Bd. of Review of Schuyler Cnty., 345 Ill. 248, 178 N.E. 91 (Ill. 1931)
• Decision Date: 23 October 1931
• Docket Number: No. 20443.,20443.
• Parties: JARMAN v. BOARD OF REVIEW OF SCHUYLER COUNTY et al.

345 Ill. 248

178 N.E. 91

JARMAN

v.BOARD OF REVIEW OF SCHUYLER COUNTY et al.

No. 20443.

Supreme Court of Illinois.

Oct. 23, 1931.

Commissioner's Opinion.

Petition for writ of certiorari by Lizzie B. Jarman, executrix, against the Board of Review of Schuyler County and others. From the judgment, petitioner appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Schuyler County; Guy R. Williams, judge.

B. O. Willard, of Rushville, and Charles J. Scofield, of Carthage, for appellant.

O. D. Arnold, State's Atty., of Rushville, Burnett M. Chiperfield, Claude E. Chiperfield, and Robert B. Chiperfield, all of Canton, and C. E. Flesher, or Rushville, for appellees.

EDMUNDS, C.

Lizzie B. Jarman, executrix of the last will and testament of Lewis A. Jarman, deceased, filed a petition in the circuit court of Schuyler county praying that a writ of certiorari issue directed to the board of review of Schuyler county, Edwin H. Johnson, clerk of said board, Edwin H. Johnson, county clerk of Schuyler county, and Edwin H. Johnson, clerk of the county court of Schuyler county, commanding them, and each of them, to certify to the court a full, correct, and complete copy of the record of said board so far as the same related to the alleged assessment of omitted credits for taxation against the estate of Lewis A. Jarman for the years 1921 to 1928, inclusive. An order was entered directing the issuance of the writ, return was made as hereinafter indicated, and, after consideration thereof, the court entered judgment quashing the writ and dismissing the suit. From this judgment Mrs. Jarman has appealed.

The return made indicated that on August 21, 1929, the board entered an order directing its clerk to notify appellant and all taxing bodies concerned that personal property belonging to the estate of Lewis A. Jarman had been omitted from assessment and taxation for previous years; that the board was about to list and assess all such omitted property, and that the time set for hearing would be August 28, 1929, when appellant might appear and show cause why the assessment should not be made; that such notice was in fact given; that on August 28 B. O. Willard, attorney for appellant, appeared before the board and requested a continuance; that a continuance was granted until September 3, 1929; that on the latter date ‘the matter of a hearing upon the proposed assessment against the personal property of L. A. Jarman estate omitted in former years was taken up by the board for examination, investigation and consideration, to determine the ownership, kind, character, amount and value of such omitted property’; that ‘those appearing before the board were B. O. Willard, attorney for Lizzie B. Jarman, executrix of the estate of L. A. Jarman, deceased, and attorney for Lizzie B. Jarman individually, and Ben Ray’; and that ‘on motion of said board of review it was ordered that the estate of L. A. Jarman be assessed on omitted personal property for prior years and amounts as follows:’ Then appears the following table:

Year 1921, notes to the amount of ..... $1,640

Year 1922, notes to the amount of ..... 4,890

Year 1923, notes to the amount of ..... 21,140

Year 1924, notes to the amount of ..... 22,340

Year 1925, notes to the amount of ..... 33,360

Year 1926, notes to the amount of ..... 41,380

Year 1927, notes to the amount of ..... 53,390

Year 1928, notes and certificate of deposit to the amount ..... 81,790

Following this table appears the recital: ‘And that the county clerk be authorized and directed to extend taxes upon the same, with the various rates of taxation for years assessed, in school district No. 92, city of Rushville, and that the clerk file a certified copy of such assessment, together with the rate of taxation thereon, certified by him, with the county clerk of Schuyler county, Illinois.’ The return further showed that such certified copy was in fact so filed. So far as it dealt with the assessor's books for the years 1921 to 1928, inclusive, the return did not show the amount of ‘credits, other than bank, banker,’ etc., as entered against Jarman by the assessor, but did indicate the entry in each of said books as against Jarman of ‘final assessed value as fixed by county board of review, value, _____ dollars'; the amount then inserted being in each case that shown hereinabove as being the amount fixed by the board for the year in question. The return also showed the following further entry in connection with Jarman in each of said books: ‘Assessment made by board of review September 3, 1929, against personal property, consisting of notes, omitted from assessment by L. A. Jarman, deceased.’

Under a rule subsequently entered, over the protest of appellees, an amended return was filed, setting out matter in addition to that already described. Appellees urge that this additional matter was no part of the record of the board and should not be considered by the court. Inasmuch as a proper decision may be rendered upon the basis of the return as originally made, it is unnecessary to set forth the matter in dispute or discuss its bearing upon this proceeding.

The material portions of the statute under which the board proceeded (Cahill's Rev. St. 1929, c. 120, par. 346) are as follows:

‘Second. * * * Provided, that an assessment of real or personal property omitted from taxation by a decedent during his lifetime, shall be made against said property and be assessed in the name of the personal representative as executor, administrator or trustees of such decedent's estate. The owner of real or personal property, and the executor, administrator or trustees of a decedent, whose property may have been omitted in the assessment in any year or number of years, or on which a tax for which such property was liable, has not been paid, and the several taxing bodies interested therein, shall be given at least five days notice in writing by the board, of the hearing on the proposed assessment of such omitted property, and the board shall have full power to examine the owner, or the executor, administrator, trustees, legatees or heirs of such decedent or other person touching the ownership, kind, character, amount and the value of such omitted property or credits.

‘Third.-If the board shall determine that the property of any decedent was omitted from assessment during any year or number of years or that a tax for which such property was liable has not been paid, it shall be the duty of said board to give written notice to the executor, administrator or trustees of such decedent of the assessments made against such property and the amount thereof, and thereupon it shall be the duty of such executor, administrator or trustees to retain in his or their hands sufficient of the assets of such decedent's estate to pay the tax when extended on such assessment, and it shall be the duty of the county clerk to file in the County or Probate Court, a copy of such assessment, together with the rate of taxation thereon, certified by such county clerk, and upon the filing of such certificate, the County or Probate Court shall enter an order directing such executor, administrator or trustees to deposit with the clerk of the court or to sequester sufficient of the assets of said estate to pay the taxes on said assessments when extended as now provided by law, or to enter into bond in double the amount of said tax with sureties to be approved by the court conditioned for the payment of said tax when so extended, and when so extended by the county clerk, the full amount of such tax shall be a claim of the first class against such estate. * * * For the purpose of enforcing the provisions of this Act, the several taxing bodies interested therein are hereby empowered to employ counsel to appear before said board and take all necessary steps to enforce the assessment on such omitted property.’

It is urged at the outset that the writ of certiorari lies only to review the proceedings of inferior officers and tribunals exercising judicial or quasi judicial functions, and that it may not be awarded where there is another adequate remedy open to the petitioner. Appellees accordingly insist that the circuit court had no jurisdiction to grant the writ in the present case because (1) the board of review did not act judicially or quasi judicially; (2) appellant had an adequate remedy by filing objections in the county court to the application of the collector for judgment, as permitted by statute (Cahill's Rev. St. 1929, c. 120, par. 201); (3) appellant had an adequate remedy by filing a bill for an injunction to restrain the collection of the tax; (4) appellant had an adequate remedy by perfecting an appeal from such order as might be entered in the county court allowing the amount due for taxes as determined by the board. In our opinion none of these grounds are decisive against appellant's right to the writ.

Consideration of the argument that the record of the board of review cannot be reviewed by certiorari may well be prefaced by reference to the case of Ohio & Mississippi Railroad Co. v. Lawrence County, 27 Ill. 50, where an increase was made in the valuation of the taxpayer's property. This court held that in the absence of statutory authorization no appeal from the ruling making the increase would lie to the circuit court. Among other things we said: ‘This section contains no provision for an appeal from the decision of the board, either to the board of supervisors, or Circuit Court. But if the board were to refuse to make the reduction, we are inclined to think that the decision could be reviewed on a certiorari.’

As to whether the board of review in the present case acted judicially, the rule is established that, if the officers acting are invested by the Legislature with power to decide on the property rights of others, they act judicially in makingtheir decision, whatever may be their public character. McKeown v. Moore, 303 Ill. 448...