Shelby County v. State of Illinois Property Tax Appeal Bd., 79-135

• Decision Date: 25 February 1980
• Docket Number: No. 79-135,79-135
• Citation: 36 Ill.Dec. 609,81 Ill.App.3d 327,401 N.E.2d 290
• Parties: , 36 Ill.Dec. 609 COUNTY OF SHELBY, State of Illinois, Plaintiff-Appellee, v. STATE OF ILLINOIS PROPERTY TAX APPEAL BOARD, Defendant-Appellant, and Gertrude Anderson, Taxpayer-Defendant.
• Court: United States Appellate Court of Illinois

Page 290

401 N.E.2d 290

81 Ill.App.3d 327, 36 Ill.Dec. 609

COUNTY OF SHELBY, State of Illinois, Plaintiff-Appellee, v. STATE OF ILLINOIS PROPERTY TAX APPEAL BOARD, Defendant-Appellant and Gertrude Anderson, Taxpayer-Defendant.

No. 79-135.

Appellate Court of Illinois, Fifth District.

Feb. 25, 1980.

William J. Scott, Atty. Gen., and Gary Kuhar, Asst. Atty. Gen., Springfield, of counsel, for defendant-appellant.

E. C. Eberspacher, State's Atty., Shelby County, Shelbyville, for plaintiff-appellee.

SPOMER, Justice.

On August 17, 1978, relying on the recent opinion of the Illinois Supreme Court in Andrews v. Foxworthy (1978), 71 Ill.2d 13, 15 Ill.Dec. 648, 373 N.E.2d 1332, the Property Tax Appeal Board ¹ ruled in numerous consolidated cases arising out of Shelby County, including the instant case, that increases in real estate assessments for 1976 were invalid because of the failure of the county supervisor of assessments to make timely publication of the intended changes as required by statute. On administrative review, the Circuit Court of Shelby County found that a statute passed by the General Assembly subsequent to the Supreme Court's opinion in Andrews had validated the increased assessments, and therefore reversed the decision of the Board. This appeal followed.

At appellant's request we take judicial notice in the cases on appeal of the pleadings and papers filed with the circuit court but assigned only to case number 78-MR-13, all involving common questions of fact and law. The Illinois Supreme Court in People v. Davis (1976), 65 Ill.2d 157, 161, 2 Ill.Dec. 572, 574, 357 N.E.2d 792, 794, stated that "taking judicial notice of matters of record in other cases in the same court is simply an application of the increasingly recognized principle that matters susceptible of judicial notice include facts 'capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy,' " and we find this principle applicable to the present case.

The determinative issue before us is whether the purported validating statute violates the principle of separation of powers embodied in Section 1 of Article II of the Illinois Constitution. We find that it does, and is therefore void.

It is undisputed that the supervisor of assessments failed to publish increases in assessments made in a nonquadrennial year by July 10, 1976, as required by Section 103 of the Revenue Act of 1939. (Ill.Rev.Stat.1975, ch. 120, par. 584). In the Andrews case, the Supreme Court held that the requirements of Section 103 are mandatory, and that a tax resulting from an increase in assessment was invalid because timely publication in compliance with the statute had not been made.

What complicates the instant case is the passage by the General Assembly of P.A. 80-1471, effective November 30, 1978 after the decision of the Property Tax Appeal Board, but prior to the decision of the trial court, which was handed down on January 23, 1979. The statute provides in pertinent part as follows:

"In all cases where real or personal property has been assessed for the purpose of taxation during the year 1978 and all years prior thereto as provided in the 'Revenue Act of 1939', filed May 17, 1939, as amended, except no timely publication of the assessment of real or personal property, or both, was made as provided by Section 103 of said 'Revenue Act of 1939', such assessments of real or personal property, or both, are hereby validated for all purposes of taxation notwithstanding that the publication of the assessments of real or personal property, or both, was not made within the time provided by statute. The extension of taxes on such real or personal property assessments, or both, are made legal and valid for the purposes of collection of taxes notwithstanding that the publication of the assessments of real or personal property, or both, was not made within the time provided by statute." (Ill.Ann.Stat., ch. 120, par. 799.1 (Smith-Hurd 1979).)

The appellee contends here that this retroactive, validating, or curative act "is merely the legislature acting to ratify or confirm an act which it might lawfully have authorized in the first instance where the defect arises out of the neglect of some legal formality." Relying on People v. Holmstrom (1956), 8 Ill.2d 401, 134 N.E.2d 246, the appellee argues that because the legislature might have lawfully and constitutionally authorized a change in assessed values without any publication at all, it may waive timely publication without contravening the doctrine of separation of powers.

We think, however, that the result here is dictated by the recent decision of the Supreme Court in Roth v. Yackley (1979), 77 Ill.2d 423, 33 Ill.Dec. 131, 396 N.E.2d 520. In Roth, the court was confronted with a situation where the 80th General Assembly passed an amendatory act in response to a prior decision of the Supreme Court which had construed the meaning of the language used in section 10 of the Illinois Cannabis Control Act (Ill.Rev.Stat., ch. 561/2, par. 710) (People v. DuMontelle (1978), 71 Ill.2d 157, 15 Ill.Dec. 770, 374 N.E.2d 205). The amendatory act amended section 10 and section 410 of the Controlled Substances Act (Ill.Rev.Stat. ch. 561/2, par. 1410), and purported to be declaratory of the existing law prior to its passage and to be applicable to events before its effective date. In rejecting the contention that the amendatory act nullified the effect of its previous decision, the Supreme Court stated:

"The General Assembly's declaration that the amendatory act applies to events which occurred before the effective date of the amendatory statute represents a legislative attempt to retroactively apply new statutory language and to thereby annul a prior decision of this court. This is an assumption by the General Assembly of the role of a court of last resort in contravention of the principle of separation of powers embodied in article II, section 1 of the Illinois Constitution of 1970, which provides: 'The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.' (See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87 Wash.2d 922, 926, 557 P.2d 1299, 1303; 1 A Sutherland, Statutes and Statutory Construction sec. 27.04 (4th ed. 1972).) While the General Assembly has the power to draft legislation and to amend statutes prospectively if it believes that a judicial interpretation was at odds with its intent (see Bruni v. Department of Registration and Education (1974), 59 Ill.2d 6, 12, 319 N.E.2d 37; Mitchell v. Mahin (1972), 51 Ill.2d 452, 456, 283 N.E.2d 465), it is the function of the judiciary to determine what the law is and to apply statutes to cases. (See People v. Nicholls (1978), 71 Ill.2d 166, 179, 15 Ill.Dec. 759, 374 N.E.2d 194; Belfield v. Coop (1956), 8 Ill.2d 293, 307, 134 N.E.2d 249.) The cases cited by the State do not recognize that the General Assembly may retroactively overrule a decision of a reviewing court. Instead they recognize only the power of the legislature to establish laws prospectively and to alter for future cases interpretations of statutes by reviewing courts. See Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66, 108 N.E.2d 8; State v. Bowman (1962), 116 Ohio App. 285, 286-87, 187 N.E.2d 627, 629; cf. People ex rel. Spitzer v. County of La Salle (1960), 20 Ill.2d 18, 28, 169 N.E.2d 521." (77 Ill.2d at 425, 33 Ill.Dec. at 133, 396 N.E.2d at 522.)

The court also noted on page 133, of 33 Ill.Dec., on page 522 of 396 N.E.2d that "(i)t is logically difficult to perceive how the declaration and the amendments by the 80th General Assembly can be simply a clarification of the intent of the 77th General Assembly, which originally enacted the statute seven years earlier, since only a fraction of the individuals who comprised the General Assembly were the same at both times."

Prior to the decision in Roth, the same issue was raised, and the same amendatory act was involved in the case of People v. Harris (3d Dist. 1979), 69 Ill.App.3d 118, 25 Ill.Dec. 576, 387 N.E.2d 33. The court there held that the legislative amendments enacted after the DuMontelle decision were violative of the constitutional provision for the separation of powers in attempting retroactively to direct construction of the previously enacted sections and to reverse the construction placed upon them by the Illinois Supreme Court.

We think it clear that the purported validating statute at issue here likewise seeks to overrule retroactively the decision of the Supreme Court in Andrews. Once the court had explicated the mandatory nature of timely publication in Andrews, that explication became, in effect, a part of the statute until the General Assembly changed it. (Roth v. Yackley, 77 Ill.2d at 425, 33 Ill.Dec. at 133, 396 N.E.2d at 522, and cases cited therein.) No subsequent action of the legislature could constitutionally alter the effect mandated by the court's interpretation as to past failures to make timely publication. Although in our opinion the decision in Andrews was not mandated by the case of People v. Jennings (1954), 3 Ill.2d 125, 119 N.E.2d 781 because a distinction can well be made between late publication with no prejudice to the taxpayer as contrasted with a total failure to publish, Andrews is nonetheless the law in Illinois, and binds this court in the case at bar. To the extent that the Holstrom case and other cases cited by the appellee are inconsistent with the result we reach here, we conclude that they have been effectively overruled by Roth and Andrews. In Andrews the court made it clear that the failure to comply with a mandatory requirement of publication is not merely the neglect of some legal formality. Thus, we conclude that Andrews ' construction of the publication requirement as designed for the benefit and...