S. A. S. Co. v. Kucharski

• Decision Date: 30 November 1972
• Docket Number: No. 43697,43697
• Citation: 290 N.E.2d 224,53 Ill.2d 139
• Parties: S.A.S. COMPANY, Appellant, v. Edmund J. KUCHARSKI, Cook County Treasurer, Appellee.
• Court: Illinois Supreme Court

Page 224

290 N.E.2d 224

53 Ill.2d 139

S.A.S. COMPANY, Appellant, v. Edmund J. KUCHARSKI, Cook County Treasurer, Appellee.

No. 43697.

Supreme Court of Illinois.

Nov. 30, 1972.

Cohon, Raizes & Regal, Chicago (Maurice P. Raizes, Chicago, of counsel), for appellant.

Edward V. Hanrahan, State's Atty., Chicago (Vincent Bentivenga, James A. Rooney, and Fredric B. Weinstein, Asst. State's Attys., of counsel), for appellee.

KLUCZYNSKI, Justice.

The Medical Center Commission filed a petition to condemn property commonly known as 2114 West Flournoy Street, Chicago, on June 16, 1967, and in said proceedings compensation was fixed at $6,500. The award was deposited with defendant, County Treasurer, on December 21, 1967. Plaintiff S.A.S. Company acquired all rights in the property by a tax deed on January 25, 1968. Thereafter, at its request and pursuant to court order, plaintiff received the proceeds of the award deposited with the County Treasurer, less the taxes for the year 1967 prorated as of December 21, 1967 (the date of deposit of the condemnation award). This proration was made pursuant to section 27a of the Revenue Act of 1939. Ill.Rev.Stat.1967, ch. 120, par. 508a.

Plaintiff accepted the award, less the proration, without protest, either oral or written, on May 6, 1968, and no petition or suit was filed contesting the validity of said proration.

Subsequent to the aforementioned proceedings section 27a of the Revenue Act of 1939 was declared unconstitutional in Board of Jr. College Dist. 504 v. Carey, 43 Ill.2d 82, 250 N.E.2d 644, and the date of proration under the Eminent Domain Act was held to be the date of the filing of the petition to condemn, applying the provisions of section 28.1 of the Revenue Act of 1939. (Ill.Rev.Stat.1961, ch. 120, par. 509.1.) We note that in Carey the challenge to the proration was made by filing a petition in the circuit court prior to the distribution of the award.

In reliance upon that case the plaintiff sought a proration of the taxes paid by it as of the date of the filing of the condemnation proceedings and a refund of the surplus for itself and all similarly situated. The circuit court of Cook County summarily dismissed the complaint and plaintiff appeals.

The salient questions presented are whether the plaintiff is entitled to a refund from the county for the excess taxes paid; whether the County Treasurer is personally liable for the prorations made under color of law; and whether this is a proper class action.

Plaintiff argues that money paid as taxes based upon an unconstitutional law is recoverable, and cites Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 97 N.E. 280, as supporting its position. The case is inappropriate. It involved an action between two governmental agencies regarding the proper distribution of monies collected as taxes. More appropriate and, we believe, dispositive of the cause before us is Richardson Lubricating Co. v. Kinney, 337 Ill. 122, 168 N.E. 886. In that case the taxes were paid under what the parties considered and accepted as a valid act. Twenty days later, the Supreme Court held the specific act invalid. On page 129, of 337 Ill., page 889 of 168 N.E., the court held: 'The only fair conclusion that can be reached from the allegations of the bill (complaint) and answer and the legitimate inferences to be drawn therefrom is that the payment was made voluntarily and not under duress. It is well settled that in the absence of fraud taxes so paid cannot be recovered, even though they are illegal because laid under an unconstitutional law, where there is no statute authorizing such recovery.' See Snyderman v. Isaacs, 31 Ill.2d 192, 201 N.E.2d 106; People ex rel. City of Highland Park v. McKibbin, 380 Ill. 447, 44 N.E.2d 449; LeFevre v. County of Lee, 353 Ill. 30, 186 N.E. 536.

The plaintiff contends that the taxes paid herein were not paid voluntarily nor is any protest necessary under section 194 of the Revenue Act of 1939 where the real estate is not subject to taxation. (Ill.Rev.Stat.1967, ch. 120, par. 675.) Conversely the defendant contends that the taxes were not paid under duress, but rather voluntarily, and that pursuant to section 14 of the Eminent Domain Act (Ill.Rev.Stat.1967, ch. 47, par. 14) the plaintiff was afforded a plain, speedy and efficient remedy to contest the validity of the proration as was done in the Carey case.

The parties stipulated that there was no protest or objection made by the plaintiff to the assessment or proration...