Rosewell, Application of

• Decision Date: 29 September 1992
• Docket Number: No. 1-89-2480,1-89-2480
• Citation: 603 N.E.2d 681,236 Ill.App.3d 165
• Parties: , 177 Ill.Dec. 611 In re Application of Edward J. ROSEWELL, as County Treasurer and Ex-Officio County Collector of Cook County, Illinois, for Judgment and Order of Sale Against Real Estate Returned Delinquent for the Non-Payment of General Taxes for the Year 1979 and for Judgment Fixing the Correct Amount of any Tax Paid Under Protest for the Year 1979 (R.D. Werner Company, individually and on behalf of a class of objectors similarly situated, Objector-Appellant, v. Edward J. Rosewell, Treasurer and Ex-Officio County Collector of Cook County, Applicant-Appellee, (Leyden Fire Protection District, Respondent-Appellee)).
• Court: United States Appellate Court of Illinois

Page 681

603 N.E.2d 681

236 Ill.App.3d 165, 177 Ill.Dec. 611

In re Application of Edward J. ROSEWELL, as County Treasurer

and Ex-Officio County Collector of Cook County, Illinois,

for Judgment and Order of Sale Against Real Estate Returned

Delinquent for the Non-Payment of General Taxes for the Year

1979 and for Judgment Fixing the Correct Amount of any Tax

Paid Under Protest for the Year 1979 (R.D. Werner Company,

individually and on behalf of a class of objectors similarly

situated, Objector-Appellant, v. Edward J. Rosewell,

Treasurer and Ex-Officio County Collector of Cook County,

Applicant-Appellee, (Leyden Fire Protection District,

Respondent-Appellee)).

No. 1-89-2480.

Appellate Court of Illinois,

First District, Second Division.

Sept. 29, 1992.

Kevin M. Forde, Ltd., Chicago (Kevin M. Forde and Katrina Veerhusen, of counsel), for appellant.

State's Attorney's Office of Cook County (Jack O'Malley, Joan S. Cherry and Mark R. Davis, of counsel), for appellee.

Corporation Counsel's Office of the City of Chicago (Kelly R. Walsh, Ruth M. Moscovitch and L. Anita Richardson, of counsel), amicus curiae for appellee.

Justice McCORMICK delivered the opinion of the court:

In this case, we review the trial court's decision denying certification of a class in a tax objection case. The objector's claims relate to taxes levied by a fire protection district on property not located within that district. The trial court held that taxpayers who paid their taxes under protest and whose objection to the Collector's application for judgment was filed by a class representative were not sufficiently numerous for their objection to proceed as a class action. The trial court also held that taxpayers who did not pay under protest waived their right to a tax refund and were not certifiable as a class.

We are specifically called upon to decide whether a class action is permissible in a tax objection case, and if so, whether the facts and circumstances of this case fall within the statutory requirements.

It is our view that the trial court correctly decided the issues in this case. A class action is permissible in a tax objection case provided that the members of the class pay their taxes under protest and a representative of the class appears and objects to the Collector's application for judgment.

The Leyden Fire Protection District (the District) is a taxing body organized in 1949 pursuant to statutory laws to provide fire protection services within prescribed boundaries. In 1965 the legislature amended the "Act in Relation to Fire Protection Districts" to provide for the automatic disconnection from a fire protection district of property annexed to a municipality providing fire protection service. (Ill.Rev.Stat.1965, ch. 127 1/2, par. 45.4.) Certain properties included within the original boundaries of the District have been annexed to various municipalities that provide fire protection service. These properties were subject to the automatic disconnection provisions of the Act. The Cook County clerk continued to extend the District's tax levy against all of the property within its original boundaries, including the disconnected properties.

Edward J. Rosewell, treasurer and ex-officio county collector of Cook County, filed an application for judgment and order of sale for delinquent taxes for the tax year 1979. R.D. Werner Company filed an objection on its own behalf and on behalf of all other property owners who the District continued to tax after their properties were disconnected from the District. The trial court sustained Werner's objection as to four parcels owned by Werner, but denied Werner's motion for class certification. Werner appeals the denial of relief to the members of its putative class. The District does not challenge the applicability of the automatic disconnection provisions to the properties involved in this action. The City of Chicago filed an amicus curiae brief in support of the position taken by the Collector.

There are three categories of taxpayers that concern us: (1) Werner, a taxpayer who paid taxes to the District under protest and individually appeared and filed an objection to the Collector's application for judgment; (2) taxpayers who paid taxes under protest on property disconnected from the District; and (3) taxpayers who paid taxes without protest on property disconnected from the District.

Werner contends that all of these taxpayers are entitled to a refund of the disputed taxes as members of the class Werner represents.

The Collector contends that (1) the Revenue Act of 1939 (Ill.Rev.Stat.1979, ch. 120, par. 482 et seq.), specifies the only means in which taxpayers can obtain relief from excessive or illegal taxes; (2) a class action is an equitable remedy which is not available where the taxpayers' legal remedy is adequate; and (3) to allow a class action in an objection to a tax assessment is against public policy.

Specifically looking at the Revenue Act and the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, pars. 57.2-57.7), we find no language directly indicating whether taxpayers seeking refunds can form a class. Without citation to authority, the Collector argues that because the Revenue Act contains no provisions for class action, taxpayers cannot bring such an action. We disagree. Since the Revenue Act does not expressly exempt tax objection proceedings from class actions, we will not read into the statute such an exemption. "Where the Revenue Act is silent, * * * the Civil Practice Act and rules of court apply." People ex rel. Southfield Apartment Co. v. Jarecki (1951), 408 Ill. 266, 274, 96 N.E.2d 569.

The Collector's "adequate legal remedy" argument is based on the view that class actions are creatures of equity law and are not available if an adequate legal remedy exists. This argument ignores the fact that class actions are now creatures of statutory law. (Ill.Rev.Stat.1979, ch. 110, par. 57.2, now Ill.Rev.Stat.1991, ch. 110, par. 2-801.) "A class action may now be brought in any court and is not limited to actions in equity." Gutansky v. Advance Mortgage Corp. (1981), 102 Ill.App.3d 496, 499, 58 Ill.Dec. 180, 430 N.E.2d 122.

We now turn to the argument that a class action in tax objection cases is against public policy. The Collector claims that allowing class actions in tax cases would create a fiscal debacle causing taxing bodies to become bankrupt.

A class action suit merely eases the difficulty of asserting and perfecting legitimate claims. Taxpayers who have legitimate claims should have the total resources of our legal system available to them. Where there is a need to limit recourse to these resources, the legislature should act. It does not follow that taxing bodies will become bankrupt if class actions are allowed in objection to tax assessments. The Collector fails to state a reason or cite authority that supports its dire prediction. This court cannot engage in public policy considerations unless there is an issue not addressed by the common law or falling within a statutory gap, or when applying constitutional precepts to changing and novel circumstances. No such issue exist in the case at bar. Our legal system is resilient and is replete with checks and balances: frivolous claims are discouraged and subject to sanctions; the legislature has specified the elements necessary for class certification; the exercise of sound judicial discretion minimizes absurd and harmful results. Subject to the limitations that we will discuss later, class actions are permitted in tax objection cases.

Werner maintains that the putative class members are not required to make payment under protest to preserve their objections because the property was "not subject to taxation" by the District. The Revenue Act of 1939 outlines procedures to be followed if a taxpayer wishes to dispute the amount of real estate taxes paid to a taxing body and seek a refund. These procedures are contained in Section 194 of the Act. (Ill.Rev.Stat.1979, ch. 120, par. 675.) The requirements are essentially (1) the tax must be paid in full and under protest; and (2) the taxpayer must appear and file an objection in the circuit court at the time the Collector makes application for a judgment. Prior to a 1986 amendment, section 194 of the Revenue Act excluded certain property from the requirement to pay under protest and file an objection in order to perfect the right to a refund:

"If any person desires to object pursuant to Section 235 of this Act to all or any part of a real property tax for any year, for any reason other than that the real estate is not subject to taxation, he shall pay * * *." Ill.Rev.Stat.1979, ch. 120, par. 675.

This court construed the language "real estate * * * not subject to taxation" in Illinois Institute of Technology v. Rosewell (1985), 137 Ill.App.3d 222, 92 Ill.Dec. 106, 484 N.E.2d 837. There, we recognized that a plaintiff could elect not to proceed under sections 194 and 235 of the Revenue Code (Ill.Rev.Stat.1989, ch. 120, pars. 675, 716), and pursue equitable remedies for the refund of excessive taxes illegally collected on exempt property. Quoting the "not subject to taxation" language, we stated that when a tax is levied on exempt property, the taxpayer need not pay under protest and file an objection before seeking equitable relief. Where the property is exempt from taxation, the taxpayer is not barred from a refund by the voluntary payment doctrine. As our supreme court has stated:

"the owner of land which is not subject to any taxation at all is not required to pay under protest in order to object to a tax." People ex rel. Fisher v. Baltimore & Ohio R.R. Co. (1945), 390 Ill. 389, 392-93, 61 N.E.2d 382, 384.

Werner relies on the Fisher case to argue that property outside of the geographic boundary of a taxing district is subject to a proper objection without payment under protest. The objector in the Fisher case successfully obtained a judgment...