People ex rel. Eitel v. Lindheimer

• Citation: 21 N.E.2d 318,371 Ill. 367
• Decision Date: 07 June 1939
• Docket Number: Nos. 24986,24987.,s. 24986
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. EITEL et al. v. LINDHEIMER, County Collector, et al. PEOPLE ex rel. SEARS ROEBUCK & CO. v. SAME.

371 Ill. 367

21 N.E.2d 318

PEOPLE ex rel. EITEL et al.

v.LINDHEIMER, County Collector, et al.

PEOPLE ex rel. SEARS ROEBUCK & CO.

v.SAME.

Nos. 24986, 24987.

Supreme Court of Illinois.

April 14, 1939.

As Modified on Denial of Rehearing June 7, 1939.

Appeals from Circuit Court, Cook County; Harry M. Fisher, judge.

Petition by the People, on the relation of Emil Eitel and others, against Horace G. Lindheimer, County Collector, and others, for a writ of mandamus to compel respondents to refund taxes erroneously paid; and petition by the People, on the relation of Sears Roebuck and Company, against Horace G. Lindheimer, County Collector, and others, for a writ of mandamus to compel respondents to credit relators with taxes erroneously paid. The causes have been consolidated. From judgments awarding writs of mandamus, the respondents appeal.

Judgments reversed and remanded, with directions as to each cause.Thomas J. Courtney, State's Atty., of Chicago (Marshall V. Kearney, Jacob Shamberg, and Brendan Q. O'Brien, all of Chicago, of counsel), for appellants.

Adams, Nelson & Williamson, of Chicago (Robert McCormick Adams, Russell J. Turney, and E. Douglas Schwantes, all of Chicago, of counsel), for appellees.

JONES, Justice.

Horace G. Lindheimer, as successor to Robert M. Sweitzer, county treasurer and ex officio collector of Cook county, and Michael J. Flynn, as county clerk, have appealed from two judgments of the Cook county circuit court. Each of the judgments awards a writ of mandamus, commanding a refund in cause No. 24986, and a credit in cause No. 24987, of taxes erroneously paid in a prior year. The causes have been consolidated for the purpose of this opinion.

Cause No. 24986 will be referred to as the Eitel case and cause No. 24987 as the Sears Roebuck case. The question involved in the Eitel case is the right to a refund of excess taxes erroneously paid for the year 1927, and in the Sears Roebuck case to a credit in subsequent years for excess taxes erroneously paid for the year 1928. The claims of appellees are based on section 268b added to the Revenue act in 1934 (Laws of 1933-1934, third spec. sess. p. 230), and section 4 of the act relating to statutes (Ill.Rev.Stat.1937, chap. 131, § 4). The petition in each case was filed in April, 1935. Section 268b of the Revenue act was expressly repealed by section 2 of the act of July 5, 1935, Laws 1935, p. 1158 (Ill.Rev.Stat.1937, chap. 120, § 337b.) The judgments awarding the writs were entered on July 23, 1938.

The repealed section 268b of the Revenue act provided for the crediting, in subsequent years, or a refund of excess taxes paid on an over-assessed valuation of property for any year where the over-assessed valuation was ordered corrected and reduced by a competent tribunal. If the party paying such taxes still owned property subject to taxation, the excess paid, with interest, was to be credited on the taxes for subsequent years. If he no longer owned any such property he was entitled to a refund. The duty of carrying out such provisions was imposed upon the proper officials. Sears Roebuck and Company still owned property subject to taxation. The Eitels did not.

Section 4 of the act relating to statutes provides that no new law shall be construed to repeal a former law, whether expressly repealed or not, as to any right accrued, or claim arising under the former law, or in anyway to affect any right accrued or claim arising before the new law takes effect, save, only, that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.

The excess tax was voluntarily paid in each case. In the Eitel case the taxes for 1927 were extended in the amount of $136,860.92, of which $123,174.83 was paid. The Eitels filed objections to the collector's application for judgment and order of sale for delinquent taxes for that year. The county court found the assessed valuation was excessive and invalid to the extent of $799,998 and found the correct amount of the tax was $98,060.98. This left an overpayment of $25,113.84. This is the amount, together with interest of $15,444.99, which the circuit court ordered refunded to the Eitels.

In the Sears Roebuck case there was an invalid over-valuation in the quadrennial assessment made for the years 1928, 1929 and 1930. The taxes on that valuation were paid for the year 1928. Objections, claiming the taxes for 1929 were excessive in the amount of $46,145.32, were filed in the county court to the collector's application for judgment and order of sale for 1929. Upon certificates of error by the board of assessors admitting a mistake in the quadrennial assessment, the court corrected and reduced the assessed valuation. The parties stipulate that the excess paid for the year 1928 is $43,791.51. No objections were filed in the county court as to the valuation of the property for the year 1928, and no order of refusal of judgment was entered upon the 1928 application for judgment. Sears Roebuck and Company claims that because the over-valuation occurred in the quadrennial assessment, the order reducing the assessed value under the objections to the 1929 taxes was a finding of over-assessed value for the year 1928. The circuit court took that view and ordered the sum of $43,791.51, together with interest of $21,589.61, to be credited on assessments for subsequent years, beginning with the year 1938.

Appellants claim that appellees had no vested right under section 268b of the Revenue act; that its repeal, without a saving clause, left them without any remedy, and that section 4 of the act relating to statutes is not applicable. They also claim the proceedings in the Sears Roebuck case did not relate back to the valuation or to the taxes for the year 1928. The appellees in both cases claim that the repealing statute was not retrospective and, therefore, their rights under section 268b of the Revenue act were saved by section 4 of the act relating to statutes. They further claim their rights under section 268b were vested and could not be divested by repeal.

We first notice the claim that appellees' rights were vested. This prompts an inquiry as to the source and nature of such rights. The obligation of the citizen to pay taxes is purely a statutory creation, and taxes can be levied, assessed and collected only in the method pointed out by express statute. People v. Sears, 344 Ill. 189, 176 N.E. 273. Cooley on Taxation, 2d ed., p. 15. So, also, any right to a refund or a credit of taxes is purely of statutory origin, and in the absence of an authoritative statute, taxes voluntarily, though erroneously, paid, cannot be recovered, nor even voluntarily refunded by a county, although there may be justice in the claim. LeFevre v. County of Lee, 353 Ill. 30, 186 N.E. 536. Therefore, section 268b of the Revenue act is the exclusive source upon which any claim of a right by appellees to a refund or a credit must necessarily be based. When the legislature enacted section 268b it presumably knew our holding in the LeFevre case, and prior decisions, that taxes voluntarily paid could not be recovered, and intended it as a remedial measure. Since such right or remedy applied only to one particular subject it must be held to be a special remedy. People v. Clark, 283 Ill. 221, 119 N.E. 329. The question then arises whether the granting of a special remedy operates to give a vested right in such remedy, which cannot be abrogated by repeal of the remedy. It has long been the established law that the legislature cannot pass a retrospective or an ex post facto law impairing the obligation of a contract, nor can it deprive a citizen of any vested right by a mere legislative act. People v. Clark, supra; Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553. Therefore, if appellees had a vested right under section 268b it could not be divested by the repealing statute. They cite and rely upon cases covering vested interests acquired by will (People v. Sears, supra); by deed (Martin v. Karr, 343 Ill. 296, 175 N.E. 376;Havill v. Havill, 332 Ill. 11, 163 N.E. 428;Preachers' Aid Society v. England, 106 Ill. 125); by contract (People v. Board of Education, 349 Ill. 291, 182 N.E. 383;Rothschild v. Village of Calumet Park, 350 Ill. 330, 183 N.E. 337;Thompson v. Alexander, 11 Ill. 54;Reynolds v. Hall, 1 Scam. 35); cases where no repeal of a former statute was involved (Illinois Zinc Co. v. Industrial Comm., 366 Ill. 480, 9 N.E.2d 212;Vulcan Detinning Co. v. Industrial Comm., 295 Ill. 141, 128 N.E. 917;In re Tuller, 79 Ill. 99, 22 Am.Rep. 164;People v. Nelson, 349 Ill. 193, 181 N.E. 635); and cases where the new statute was a revision or amendment changing or continuing a penalty or a remedy (Kelly v. People, 29 Ill. 287;Roth v. Eppy, 80 Ill. 283;People v. Zito, 237 Ill. 434, 86 N.E. 1041;White Sewing Machine Co. v. Harris, 252 Ill. 361, 96 N.E. 857, Ann.Cas.1912D, 536;Ziolkowski v. Continental Casualty Co., 365 Ill. 594, 7 N.E.2d 451;Woolley v. Alexander, 99 Ill. 188;Farmer v. People, 77 Ill. 322).

Manifestly, cases where a vested title arose from a source outside the repealed statute, such as by will, deed or contract, and cases where no repeal of a former statute was involved, do not tend to show the rights of appellees were vested. The cases above cited where the new statute was a revision or amendment changing or continuing a penalty of remedy do not deal with total express repeals of former statutes, but involve the retrospective effect of the new statute and the application of saving clauses in the same or separate statutes saving penalties or remedies. This phase of the controversy will be discussed later.

That the legislature cannot pass a retrospective law impairing the obligation of a contract, nor deprive a citizen of a vested right, is a principle of general jurisprudence, but a right, to be within its protection, must be a vested right. It must be something more than a mere...