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People Ex Rel. Lunn v. Chi. T. & Tr. Co.

OPINION FILED MAY 24, 1951.

THE PEOPLE EX REL. GUY O. LUNN, COUNTY COLLECTOR, APPELLEE,

v.

THE CHICAGO TITLE AND TRUST COMPANY ET AL., APPELLANTS.



APPEAL from the County Court of Lake County; the Hon. MINARD E. HULSE, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1951.

The treasurer and ex officio collector of Lake County applied to the county court of that county for judgment against, and an order of sale of, all real property returned delinquent for the nonpayment of taxes for the year 1947. The Chicago Title and Trust Company, as trustee of certain real estate in Cuba township, and Fred W. Worth and 266 other owners of property in Warren township, having previously paid seventy-five per cent of their taxes under protest, filed objections to the application. Although substantially the same, the two sets of objections were heard separately. Thereafter, the county court overruled all objections and entered judgments in favor of the collector. Separate appeals prosecuted by the corporate objector and the group of individual objectors have been consolidated in this court for hearing and opinion.

Of the eight objections argued upon this appeal, the first four relate to the legality of two orders of the board of review increasing the assessed value of all real property in Cuba and Warren townships, respectively, the principal objection being that the board of review had expired and was no longer lawfully in existence when the challenged orders were made. The facts are briefly as follows: the board of review convened in June, 1947, pursuant to statute, but 1947 was a quadrennial assessment year and the board did not receive the assessment books for many of the eighteen townships in the county until considerably later. For example, the township assessor of Warren township did not complete the assessment and return the books to the supervisor of assessment until September 30, 1947. On November 12, 1947, the county board of supervisors, upon the petition of the board of review, passed a resolution extending the time for the board of review to complete its work from December 7, 1947, to April 7, 1948, a period of one hundred and twenty days. The preamble to the resolution referred to the delays in receiving the assessment books, the apparent necessity of revaluing the property in several townships and the added burdens of a quadrennial assessment year as circumstances necessitating the extension.

On December 11, 1947, the board mailed notices to the township assessor and sixty property owners in Warren township, stating that it would meet December 19, 1947, to consider why the assessment of property in the township should not be increased. At the meeting held pursuant to the notices, the board made the following increases in property values: land 25 per cent, improvements on land 50 per cent, lots 100 per cent, and improvements on lots 50 per cent. On January 16, 1948, the board of review met with property owners in Cuba township, in accordance with notices mailed January 8, 1948, and increased the assessed values of land 25 per cent, improvements on land 60 per cent, lots 60 per cent, and improvements on lots 60 per cent. Thereafter, on April 7, 1948, the board of review, having completed its revision of assessments, adjourned without day.

In support of their contention that the board of review was not legally in existence on the dates the horizontal increases were made, the objectors rely upon section 107 of the Revenue Act of 1939. (Ill. Rev. Stat. 1947, chap. 120, par. 588.) Section 107, so far as applicable, provides, "in counties of one hundred thousand or more inhabitants said board of review shall adjourn on or before the seventh day of December: provided that in the years of quadrennial assessments, with the approval of the county board, * * * the board of review in all counties of one hundred thousand or more inhabitants * * * may remain in session until not to exceed twenty (20) days after December 7th. No per diem compensation shall be paid any member of said board of review for services rendered after the date fixed for the final adjournment, except for services in an extraordinary session ordered by the Department in accordance with sections 140 and 144 of this Act." Lake County has more than one hundred thousand inhabitants. The proviso authorizing extensions not to exceed twenty days in quadrennial assessment years was added in 1943, (Laws of 1943, vol. 1, p. 1059,) and, manifestly, the county board here involved had no authority to extend the date of adjournment of the 1947 board of review for a period of one hundred and twenty days beyond December 7, 1947.

To sustain the validity of the assessments in question, the collector invokes two saving clauses, namely, sections 315 and 316 of the Revenue Act of 1939. (Ill. Rev. Stat. 1947, chap. 120, pars. 796 and 797.) Section 315 provides: "A failure to complete an assessment in the time required by this Act shall not vitiate such assessment, but the same shall be as legal and valid as if completed in the time required by law." Similarly, section 316 provides, in part: "No assessment of real or personal property or charge for taxes thereon, shall be considered illegal on account of * * * the assessments not being made or completed within the time required by law." Section 315 is a re-enactment of section 40 of the Revenue Act of 1898, (Laws of 1898, p. 34,) and has long been regarded as rendering statutory provisions establishing specific adjournment dates for boards of review directory, only. (People ex rel. Brecheisen v. Board of Review, 363 Ill. 106; Kimball & Co. v. O'Connell, 263 Ill. 232; Barkley v. Dale, 213 Ill. 614.) In the Barkley case, it was said: "We think, from a consideration of all of said sections, that the provision in section 38 that boards of review shall complete their work on or before the 7th day of September, annually, in view of section 40, is so far directory that the board may continue its sessions until it has completed the work then pending before it, and is prepared to return the assessment books to the county clerk."

Seeking to overcome the effect of sections 315 and 316, the objectors contend, in substance, that these saving clauses were repealed, by implication, as a result of the 1943 amendment to section 107. Specifically, the objectors rely upon the familiar principle that the express enumeration of powers granted is an exclusion of powers not granted, (Village of Lombard v. Illinois Bell Telephone Co. 405 Ill. 209; Arms v. City of Chicago, 314 Ill. 316,) and argue that the express grant of power to county boards to extend the time boards of review may remain in session beyond the adjournment dates otherwise applicable is indicative of a legislative intent to exclude all other methods of extending the life of boards of review and to make adjournment dates mandatory. The argument advanced is not persuasive. The rule of construction that the enumeration of certain things implies the exclusion of all others not mentioned is to be applied only when it appears to point to the legislative intent, and never to defeat the plainly indicated intent of the lawmaking body. (Illinois Central Railroad Co. v. Franklin County, 387 Ill. 301; Patteson v. City of Peoria, 386 Ill. 460.) Contrary to the view taken by objectors, the 1943 amendment, although a proviso in form, enlarges, rather than restricts, the powers of boards of review by permitting them to remain in session longer. An amendment authorizing limited extensions of adjournment dates of boards of review does not evidence an intention to render late assessments illegal where they were not illegal prior to the adoption of the amendment. Far from bespeaking a legislative intention that assessments not completed within the time required by law are illegal, the amendment in question merely discloses a legislative appreciation of the additional time required by boards of review in quadrennial assessment years and provides a simple method for authorizing compensation for a limited period of additional service without the necessity of obtaining an order of the Department of Revenue directing the board to convene in extraordinary session and authorizing the payment of compensation, under sections 140 and 144. Ill. Rev. Stat. 1947, chap. 120, pars. 621 and 625.

So construed, section 107, as amended, is not even mildly repugnant to sections 315 and 316. Repeals by implication are not favored and it is only where two laws are so clearly repugnant to each other and both cannot be carried into effect that the later will prevail. (Krimmel v. Eielson, 406 Ill. 202; Wilhelm v. Industrial Com. 399 Ill. 80.) In addition, from the very nature of sections 315 and 316 as saving clauses forming an integral and important part of our revenue laws for a period of many years, (Laws of 1871-72, p. 1, pars. 280 and 281,) it would appear that the legislature, had it intended to repeal these sections, would have expressly so provided. In view of the foregoing, we hold that the 1943 amendment to section 107 did not repeal, by implication, sections 315 and 316. It follows, therefore, that these saving clauses are applicable here and the assessments in question, although not made within the time required by law, are as legal and valid as if they had been made within the time prescribed.

In the alternative, objectors contend that the horizontal increases are illegal because the notices of the proposed increases were fatally defective in that (1) no notice was given to the county supervisor of assessments, (2) neither the class of property nor the territory to be affected by the proposed change in assessment was specified in the notices and (3) the time between the mailing of the notices and the hearings was unreasonably short. Paragraph (5) of section 108, (Ill. Rev. Stat. 1947, chap. 120, par. 589,) authorizing boards of review to increase the entire assessment in any part of the county, does not prescribe the form or detailed contents of the notice to be given. It only provides that "the assessment of any class of property or of any township * * * shall not be increased until the board shall have notified not less than fifty of the owners of such property in such township * * * and given them, or anyone representing them or other citizens of said territory, an opportunity to be heard." Like notice, with an opportunity to be heard, must also be given to "the board of assessors, assessor or supervisor of assessments." In each case involved here, the board gave notice of a proposed increase in valuation to more than fifty property owners in the township and the township assessor eight days in advance of the hearing. Lake County does not have a board of assessors and, the township assessor and the county supervisor of assessments being referred to in the statute in the disjunctive, it follows that the notices to the township assessors were sufficient and that no notice was required to be given to the supervisor of assessments. Furthermore, the mailing of the notices eight days in advance of the hearings does not contravene any provision of the statute and, in the absence of any showing that the objectors were harmed thereby, it cannot be said the notice given was unreasonably short.

The remaining alleged defect in the notices involves a consideration of rule 17 of the Property Tax Division of the Department of Revenue. In 1947, rule 17 provided that notices of proposed equalizations of assessments shall be prepared on form No. BR-7. The notices were prepared on this form and, contrary to the assertion made, in each case, the appropriate township was properly designated as the territory to be affected by the proposed increase. The only item left blank in the notices was the specification of the class or classes of property involved in the proposed increases. As all persons receiving notices owned real estate and the increases proposed did, in fact, extend to all classes of real property, the failure to specify that the assessment of all classes of real property would be considered at the scheduled hearing does not constitute a material defect in the notices.

Objectors also contend that there is no record in the minutes of the board of review to support the horizontal increases and further complain that the county court erred in permitting the collector to amend the minute entry relative to the increase in Cuba township during the hearing on the objections. The minutes of the board of review substantiate the challenged increases, but it is apparent that each of the respective entries involved was written over an erasure. The minutes, although written over erasures, are, nonetheless, the official records of the board of review and it is significant that no contention is made that the minutes do not correctly reflect the action taken by the board. The specific objection made is that an altered document does not constitute evidence of what it purports to show without proof of its validity. Objectors are, however, in the anomalous position of having admitted by their respective pleadings in the county court that the members of the board of review "caused to be entered upon the minutes of the Board of Review of Lake County a decision by them to make the following horizontal raises in valuation of all real estate in said township," thereafter describing the particular increases, and now denying that the record of the board supports the horizontal raises. Even more damaging is their failure to raise this contention in the county court, where the only objection to the minutes of the board was the assertion that there was no record of the jurisdictional proceedings preceding the horizontal increases. Under familiar principles, questions not raised nor adjudicated at the trial cannot be raised upon appeal. Wise v. Potomac Nat. Bank, 393 Ill. 357; People ex rel. Tyler v. Chicago, Burlington and Quincy Railroad Co. 281 Ill. 500.

The accompanying question as to the action of the trial judge in permitting the minute involving the increase in valuations in Cuba township to be amended in open court remains to be considered. As this minute appeared in the records of the board of review, it recited, in pertinent part: "Motion made and seconded * * *, that the Board apply the following equalization factors in Cuba Twp.: 60% on lots, 60% on improvement of lots, 60% on land improvements and 25% on lands." So written, the minute means that the assessments of the various classes of real property were to be decreased to amounts equal to 60 and 25 per cent, as applicable, of the assessments made by the township assessor. Since the corporate objector involved had, in its written objections, admitted that the board had ordered a horizontal increase in Cuba township and the chief clerk of the board testified to the same effect, the trial judge, on motion of the collector, permitted the minute to be amended by inserting the words "increase of" after "Cuba Twp.:" and by adding the notation, "Motion carried," at the end of the sentence. This was entirely proper, as, under the liberal provisions of section 235 of the Revenue Act, (Ill. Rev. Stat. 1947, chap. 120, par. 716,) the court may, in ...


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