Uretsky v. Baschen

• Decision Date: 01 April 1977
• Docket Number: No. 75--495,75--495
• Citation: 47 Ill.App.3d 169,5 Ill.Dec. 552,361 N.E.2d 875
• Parties: , 5 Ill.Dec. 552 Jack L. URETSKY and LaGrange State Bank, Plaintiffs-Appellants, v. William K. BASCHEN, Downers Grove Township Assessor and DuPage County Board of Review, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 875

361 N.E.2d 875

47 Ill.App.3d 169, 5 Ill.Dec. 552

Jack L. URETSKY and LaGrange State Bank, Plaintiffs-Appellants, v. William K. BASCHEN, Downers Grove Township Assessor and DuPage County Board of Review, Defendants-Appellees.

No. 75--495.

Appellate Court of Illinois, Second District.

April 1, 1977.

Rehearing Denied May 2, 1977.

Jack L. Uretsky, Hinsdale, for plaintiffs-appellants.

John J. Bowman, State's Atty., Robert D. McLaren, Asst. State's Atty., Wheaton, Douglas A. Slansky, Downers Grove, for defendants-appellees.

SEIDENFELD, Justice.

Jack L. Uretsky and the LaGrange State Bank (hereinafter the taxpayer) filed a three-count complaint against the Downers Grove Township Assessor and the DuPage County Board of Review which, as amended, essentially challenged the increased valuation of the taxpayer's property as a part of an alleged reassessment of all residential real property in Downers Grove Township in a nonquadrennial year. In Count I the taxpayer sought a declaratory judgment that the assessor's revision in the nonquadrennial year 1974 was unauthorized by law and void. In Count II declaration was sought that section 46 of the Revenue Act of 1939 (Ill.Rev.Stat.1975, ch. 120, par. 527), pursuant to which the revised assessments were purportedly made, was unconstitutional. The taxpayer sought to enjoin collection based on the claimed unlawful assessment, to enjoin further nonquadrennial assessments, and to temporarily restrain collection pending a hearing on his prayer for a preliminary injunction. Count III charged the assessor and the board with failure to accord the taxpayer procedural due process. In this count the taxpayer asked the court to set aside the increased assessment, to enjoin the board to reschedule its hearing on the taxpayer's complaint, and to award damages.

The defendants' motions to dismiss the complaint were granted, and the taxpayer appeals.

The taxpayer's suit is premised on his argument that the alleged 1974 general reassessment of residential real estate in Downers Grove Township was unauthorized by law. The resolution of this question involves several sections of the Revenue Act.

Section 46 provides as pertinent:

'The supervisor of assessments, the county assessor or the board of assessors of any county having fewer than 1,000,000 inhabitants, or the township assessor of any township in any such county, may in any year revise an assessment and correct such assessment as shall appear to him or them to be just. * * *' (Ill.Rev.Stat.1975, ch. 120, par. 527)

Section 111.1 of the Revenue Act provides as pertinent:

'In any county other than a county of over 1,000,000 population, any taxpayer dissatisfied with the decision of a board of review as such decision pertains to the assessment of his property for taxation purposes, * * * may, within 30 days after the date of written notice of the decision of the board of review, appeal such decision to the Property Tax Appeal Board for review. * * * However, any taxpayer not satisfied with the decision of the board of review as such decision pertains to the assessment of his property for taxation purposes, need not appeal such decision to the Property Tax Appeal Board for review before seeking relief in the courts.' (Ill.Rev.Stat.1975, ch. 120, par. 592.1)

The taxpayer argues that the assessor and the board had no authority under section 46 of the Revenue Act to reassess property in nonquadrennial years. He reasons that prior to 1971 section 46 prohibited assessors from revising assessed valuations in nonquadrennial years with exceptions not relevant here and that the 1971 amendment of section 46 was not intended to permit assessors to make annual assessments. He argues that the amendment was part of an act changing the equalization powers of the Department of Local Government Affairs and merely empowered the assessor to conduct nonquadrennial reassessments when ordered by the Department or to correct mistakes on individual assessments. He further contends that if the 1971 amendment was intended to permit the assessor to conduct general reassessments annually, it violated the constitutional provision mandating that bills be confined to one subject. (Ill.Const.1970, art. IV, sec. 8(d).) The taxpayer also refers to section 30 of the Revenue Act (Ill.Rev.Stat.1975, ch. 120, par. 511) which provides generally for quadrennial assessments.

The defendants answered that the taxpayer is seeking the aid of equity in a matter which is properly the subject of a legal remedy through the tax objection procedures. (See Ill.Rev.Stat.1975, ch. 120, pars. 675, 716). Responding to the alleged unconstitutionality of section 46 of the Revenue Act, the defendants argue that there is no equity jurisdiction since the taxpayer does not claim that the total assessment is unauthorized by law but only the increased portion of the 1974 real estate taxes involved in the reassessment.

The initial question of the propriety of the trial court's denial of declaratory relief under Counts I and II is in turn dependent upon whether the taxpayer was entitled to the injunctive relief which he sought. The entry of a declaratory judgment in a real property tax case is not precluded. (See People ex rel. Hamer v. Jones, 39 Ill.2d 360, 369, 235 N.E.2d 589 (1968).) In order to avoid interference with the collection of revenues, however, it has been held that relief should not be afforded by way of declaratory judgment 'in any cases which would not have merited relief in equity by injunction * * *'. Goodyear Rubber Co. v. Tierney, 411 Ill. 421, 431, 104 N.E.2d 222, 226 (1952). See also La Salle Nat. Bk. v. County of Cook, 57 Ill.2d 318, 322, 312 N.E.2d 252 (1974); People ex rel. Hamer v. Jones, 39 Ill.2d 360 at 369, 235 N.E.2d 589.

We therefore first consider whether the taxpayer was entitled to injunctive relief.

The general rules upon which equity assumes jurisdiction over the assessment and collection of real estate taxes have been clearly stated in Charendon Associates v. Korzen, 56 Ill.2d 101, 107, 306 N.E.2d 299, 302 (1973).

The court concluded:

'In view of the existence of our present statutory remedy, there is no apparent reason for continuing to afford equitable relief in such cases unless the remedy at law is found to be inadequate. We think the principle which this court announced in Lackey v. Pulaski Drainage Dist., 4 Ill.2d 72, 74, 122 N.E.2d 257, 259, is appropriate as the governing principle in such cases: '* * * the fundamental rule that equity will not assume jurisdiction unless special grounds for equitable jurisdiction are established, and unless the plaintiff does not have an adequate remedy at law, is subject to two exceptions; namely, where a tax is unauthorized by law or is levied upon exempt property.' This rule requires that, other than in cases involving the two exceptions, a special ground for equitable jurisdiction, such as fraudulently excessive assessment, must exist and that an adequate remedy at law must not be available.'

The taxpayer has conceded that the property is subject to and not exempt from taxation. Both the taxpayer and the defendants have argued that case on the basis of whether the tax and the assessment in question was 'unauthorized.' We conclude that the tax and the assessment are not 'unauthorized' as the term is used in the cases. ¹

The provision of section 111.1 of the Revenue Act that '(A)ny taxpayer not satisfied with the decision of the board of review as such decision pertains to the assessment of his property for taxation purposes, need not appeal such decision to the Property Tax Appeal Board for review before seeking relief in the courts' (Ill.Rev.Stat.1975, ch. 120, par. 592.1) does not invoke the equity jurisdiction of the court in this case unless the taxpayer can show that he is seeking relief from an unauthorized tax or that other special grounds for equitable jurisdiction are present. Clarendon Associates v. Korzen, 56 Ill.2d 101, 306 N.E.2d 299.

The assessor had the general authority to make the assessment under power granted in several sections of the Revenue Act (See Ill. Rev.Stat.1975, ch. 120, pars. 482--88, 511, 523, 525). Although the Revenue Act of 1939 (Ill.Rev.Stat.1975, ch. 120, pars. 482 et seq.) contemplates a general assessment of real estate every four years (pars. 482, 511), it is apparent that the assessment officials have the power and the duty to inspect real property within their jurisdiction annually for the purpose of making certain changes and revisions. (See pars. 483, 518, 522, 523, 527, 575--78, 584). Therefore, even without reference to the express language in section 46 of the Revenue Act (par. 527), which appears to permit a revision 'in any year,' it cannot be said that the assessor was wholly unauthorized to make the revision. The assessor, therefore, had the power to function and procedural irregularities, if any, did not make the tax 'unauthorized by law.' North Pier Terminal Co. v. Tully, 62 Ill.2d 540, 548--49, 343 N.E.2d 507 (1976).

Further, some portion of the tax based on the assessment would have been authorized in any event. If a portion of the tax is authorized and the unauthorized part cannot be separated, the tax is treated as authorized for the purpose of determining the question of the availability of equitable relief. Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 419--20, 167 N.E.2d 236 (1960); Strahan v. MacDonald, 37 Ill.App.3d 840, 842, 346 N.E.2d 500 (1976); Hulse v. Kirk, 28 Ill.App.3d 839, 843--44, 329 N.E.2d 286 (1975). See also Ames v. Schlaeger, 386 Ill. 160, 53 N.E.2d 937 (1944).

The taxpayer has not cited a single property tax case which supports his argument that the court in equity must hear a tax case when it is alleged that apparent authority in the statute to make a nonquadrennial assessment is, in fact, not legal and constitutional authority. None of the cases cited by the taxpayer determines the question whether the...