North Pier Terminal Co. v. Tully

• Decision Date: 20 January 1976
• Docket Number: No. 47849,47849
• Parties: NORTH PIER TERMINAL COMPANY et al., Appellees, v. Thomas M. TULLY, County Assessor, et al., Appellants.
• Court: Illinois Supreme Court

Page 507

343 N.E.2d 507

62 Ill.2d 540

NORTH PIER TERMINAL COMPANY et al., Appellees, v. Thomas M. TULLY, County Assessor, et al., Appellants.

No. 47849.

Supreme Court of Illinois.

Jan. 20, 1976.

RehearingDenied March 25, 1976.

Bernard Carey, State's Atty., Chicago (Sheldon Gardner, Deputy State's Atty. and Henry A. Hauser and Michael F. Baccash, Asst. State's Attys. of counsel), for appellants.

Keith F. Bode, Robert C. Keck, Jr., and Robert L. Byman, Chicago (Jenner & Block, Chicago, of counsel), for appellee Nabisco, Inc.

Flanagan & Bilton, Chicago (Dean H. Bilton, Chicago, of counsel), for appellee North Pier Terminal Co.

Gould & Ratner, and Gordon H. Millner, Ltd., Chicago (James A. Rooney and Gordon H. Millner, Chicago, of counsel), for appellees Chandler's Inc., and Stores Realty Corp.

Selwyn Zun, Merrill A. Freed, and Morton Denlow, Chicago (D'Ancona, Pflaum, Wyatt & Riskind, Chicago, of counsel), for appellee Central Realty & Investment Co.

RYAN, Justice.

This action was originally brought by plaintiffs as a class action challenging the legality of omitted property assessments and the back taxes levied thereon. The second amended complaint is in two counts. The trial court entered summary judgment in favor of the plaintiffs and against the defendants (the County of Cook and its tax assessment and collection officials) as to count II. No disposition was made of count I. The trial court declared the tax unauthorized in law and void, and permanently enjoined the defendants from assessing, levying or collecting the void taxes from members of the class. The court also continued in effect the preliminary injunction orders previously entered requiring the county collector to impound any payments of the taxes in a fund and retained jurisdiction for purposes of administering and distributing the fund. The defendants appealed, and the case was transferred to this court pursuant to Rule 302(b) (58 Ill.2d R. 302(b)).

This case was originally filed on behalf of all taxpayers in the County of Cook who were lessees during the years 1969 through 1973 of real property from lessors whose properties were exempt from taxation. These lessees had previously been assessed on their leasehold interests pursuant to amended section 26 of the Revenue Act of 1939 (Ill.Rev.Stat.1969, ch. 120, par. 507). In Dee-El Garage, Inc. v. Korzen, 53 Ill.2d 1, 289 N.E.2d 431, this court held amended section 26 unconstitutional and held that the provisions of section 26 as they existed prior to the 1969 amendment remained in effect. Following that decision the assessor made the assessments of omitted property involved in this case under section 220 of the Revenue Act of 1939 (Ill.Rev.Stat.1973, ch. 120, par. 701).

Several other complaints were filed by other lessees of real property from lessors whose properties are exempt from taxation. The original plaintiffs then filed the second amended complaint in two counts. Count I is brought on behalf of the members of the original class and count II is brought on behalf of all taxpayers whose back taxes have been entered in the collector's 1973 warrant books as omitted property. The several cases were consolidated in the trial court with the second amended complaint, and after answers were filed by the defendants, the plaintiffs filed motions for summary judgment which were allowed. As previously noted, no disposition was made of count I of the second amended complaint filed by the original plaintiffs. All of the complaints on which injunction orders were entered present essentially the same questions as does count II on the second amended complaint of the original plaintiffs, and we will consider this appeal as though only count II of the second amended complaint is involved.

Plaintiffs contend and the trial court held that the procedures followed by the assessor in assessing plaintiffs' leasehold interests as omitted property were defective thus rendering the taxes levied void as being unauthorized in law.

Our opinion in Dee-El Garage was filed October 2, 1972, and rehearing denied November 29, 1972. Thereafter, the county assessor for Cook County undertook to assess plaintiffs' leasehold interests for the year 1973, and the property was back taxed pursuant to those assessments for the years 1970 through 1973. Prior to April 9, 1974, as required by section 97 of the Revenue Act of 1939 (Ill.Rev.Stat.1973, ch. 120, par. 578), the assessor certified the completion of the assessments. On or about June 8, 1974, the assessor and the board of appeals executed joint affidavits certifying the assessment books in accord with section 125 of the Revenue Act of 1939 (Ill.Rev.Stat.1973, ch. 120, par. 606). At the time of these certifications the assessor had not completed sending notices and holding hearings concerning the assessments of omitted property. The 1973 assessment books at the time they were certified by the assessor and the board of appeals contained no omitted property assessments for plaintiffs' properties. Sometime after June 18, 1974, the assessor had additional sheets containing the omitted property assessments inserted in the assessment books and by affidavits dated December 5, 1974, stated that the additional sheets were inserted in the assessment books at the direction of the county clerk subsequent to the date of the original certifications of the books by the assessor and by the board of appeals.

Section 97 of the Revenue Act of 1939 (Ill.Rev.Stat.1973, ch. 120, par. 578) provides in part as follows:

'When the county assessor has completed such revision and correction and entered the changes and revision in the assessment books, an affidavit shall be appended to each of such assessment books in the form required by law, signed by the county assessor. After the signing of such affidavit the county assessor shall have power, when directed by the board of appeals pursuant to Section 113 of this Act, or on his own initiative, to assess properties which may have been omitted from assessments for the current year or during any year or number of years for which such property was liable to be taxed, and for which such tax has not been paid, but only on notice and an opportunity to be heard in the manner and form required by law, and shall enter such assessments upon the assessment books. The assessor shall have no power to change the assessment or alter the assessment books in any other manner or for any other purpose so as to change or affect the taxes in that year, except as ordered by the board of appeals. The county assessor shall make all changes and corrections ordered by the board of appeals. The county assessor may for the purpose of revision by the board of appeals certify the assessment books for any town or taxing district after or when such books are completed.' (Emphasis added.)

Plaintiffs contend that the assessor had no authority under section 97 of the Revenue Act to add assessments of omitted property to the 1973 assessment books after they had been certified by the assessor and the board of appeals. To do so would deprive the taxpayer of his right to have the assessment of his omitted property reviewed by the board of appeals which plaintiffs contend is provided for All assessments in sections 113 and 117 of the Revenue Act (Ill.Rev.Stat.1973, ch. 120 pars. 594, 598). Thus, plaintiffs argue, the tax is void.

The defendants contend that the assessment procedure followed was not violative of statutory provisions and that the tax is valid. Also, defendants argue that this is not a proper case for equitable relief because the assessment is clearly authorized by section 97 of the Revenue Act and that the defects complained of are mere irregularities for which the proper remedy is at law. Because we find this not to be a proper case for eauitable relief we need not consider the merits of plaintiffs' contentions.

We have recently held that where a taxpayer has an adequate remedy at law equity will not assume jurisdiction unless the tax is unauthorized by law or is levied upon exempt property. (Clarendon Associates v. Korzen, 56 Ill.2d 101, 306 N.E.2d 299; La Salle National Bank v. County of Cook, 57 Ill.2d 318, 312 N.E.2d 252.) The remedy provided by law is the statutory remedy of paying the tax under protest and filing an objection to the application for judgment. (Ill.Rev.Stat.1973, ch. 120, pars. 675, 716.) The plaintiffs do not argue that the legal remedy is not adequate but contend that the back tax is a tax 'unauthorized by law' because of the failure of the assessor to make the assessment before the assessment books were certified to the county clerk. Thus, plaintiffs argue, the tax constitutes one of the two exceptions stated in Clarendon for which equitable relief is allowed, regardless of the availability of an adequate remedy at law. W...