APPEAL from the County Court of Lee County; the Hon. JOHN
DIXON, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 17, 1961.
This is an appeal from an order sustaining defendant's objections to property taxes and ordering a refund of 45% of the taxes paid for the year 1958. The basis of the objections was that defendant's property was assessed by the Department of Revenue at 100% of full, fair cash value, while locally assessed property, after giving effect to the multiplier certified by the Department of Revenue, was assessed at no more than 55% of full value, that this action on the part of the Department of Revenue was deliberate and intentional and constituted constructive fraud, and that the tax objection procedure is an appropriate remedy whereby defendant can obtain relief.
Two questions are involved in this appeal, one procedural and the other substantive. We will dispose of the procedural question first, since it goes to the jurisdiction of the county court to entertain the objections raised by defendant.
It is plaintiff's contention that defendant's objection is essentially an attempt to review the Department's determination of the multiplier applicable to Lee County for 1958, and that the exclusive remedy by which this may be done is by the administrative procedure prescribed in section 148a of the Revenue Act of 1939, (Ill. Rev. Stat. 1957, chap. 120, par. 629a,) with judicial review under the Administrative Review Act. In support of this position, plaintiff relies on section 148a of the Revenue Act, which affords the right to petition the department for a reconsideration of its tentative estimate of the full, fair cash value of locally assessed property in the county, section 138 of the Revenue Act, (Ill. Rev. Stat. 1957, chap. 120, par. 619,) which makes final administrative decisions of the Department under the act judicially reviewable under the Administrative Review Act, and section 2 of the Administrative Review Act, (Ill. Rev. Stat. 1957, chap. 110, par. 265,) which makes that act the exclusive method of review in all cases to which it applies. In answer to this contention, defendant points to our opinions in Chicago, Burlington & Quincy Railroad Co. v. Department of Revenue, 17 Ill.2d 376, and People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co. 8 Ill.2d 66, in which we indicated that questions of the character here involved may be raised by objection to the county collector's application for judgment. Plaintiff asserts that such statements in these two cases are mere dicta, which we should disavow in the light of express statutory provisions compelling a contrary conclusion.
The Administrative Review Act was enacted in 1945 by the same General Assembly that enacted the full assessment program. The act is not self-executing, but applies only to those cases where it is adopted, by express reference, by the act creating or conferring jurisdiction upon the administrative agency involved. It was not made applicable to the Revenue Act of 1939 until the 1947 session of the General Assembly, when section 138 of the Revenue Act was amended to make final administrative decisions of the Department reviewable under the Administrative Review Act. An examination of section 138 suggests that the final administrative decisions referred to are those of the Department in its assessment of property, and that the section has, or at least in 1947 had, nothing to do with the equalization functions of the Department.
Section 138 of the Revenue Act, together with sections 137 and 139, forms a group of three sections dealing with the review of original assessments made by the Department of Revenue. Section 137 provides for the publication of a list of original assessments made by the Department, and gives any person aggrieved by any such assessment the right to petition the Department for a review of the assessment complained of. Section 138, prior to its amendment in 1947, provided for judicial review by way of appeal to the circuit court of any determination of the Department under the preceding section. (Ill. Rev. Stat. 1945, chap. 120, par. 619.) As amended in 1947, and as it still remains today, the first sentence of section 138 reads: "The Circuit or Superior Court of the county in which the property is assessed, or some part of such property, is situated shall have the power to review all final administrative decisions of the Department in administering the provisions of this Act." (Emphasis supplied.) (Ill. Rev. Stat. 1947. chap. 120, par. 619.) Despite the use of the blanket phrase "all final administrative decisions of the Department," the phrasing of jurisdiction in terms of the county in which the assessed property is situated makes it clear that the legislature was thinking primarily, if not exclusively, of administrative decisions relating to the assessment of property by the Department. In any event, it could hardly have been the intent of the legislature in 1947 to make the Administrative Review Act applicable to determinations of the Department under section 148a of the Revenue Act since that section was not enacted until 1951. There was in 1947 no provision at any stage of the equalization procedure for an administrative hearing by the Department. It is clear, therefore, that while after the 1947 amendment to section 138 of the Revenue Act the Administrative Review Act was prescribed as the method of reviewing an original assessment made by the Department, it had nothing to do with the process of equalization and did not afford a method of review of the Department's determination of equalization factors or multipliers. It remains to be considered whether the enactment of section 148a of the Revenue Act of 1939 indicated a legislative intent to provide an exclusive remedy.
Section 148a, as enacted in 1951 and as it remained until amended in 1959, provided that, within 15 days after the county treasurer, assessment supervisor, county assessor or board of assessors, files with the Department an abstract of the assessments of the locally assessed property in the county, as revised by him or it, the Department shall forward to the county clerk its estimate of the full, fair cash value of the locally assessed property in the county. Then, within 30 days after the receipt of such estimate from the Department, the county, or any taxing district or taxpayer therein, claiming to be detrimentally affected thereby, may petition the Department for a reconsideration of such estimate, and "if granted the Department may upon such reconsideration, after giving such hearing to all interested parties and such opportunity for submitting such proofs and arguments in support of or adverse to such estimate as the Department shall deem requisite in the premises, either confirm or revise such estimate so as to correctly represent the considered judgment of the Department respecting the estimated full, fair cash value of all locally assessed property in such county."
The defendant vigorously argues that the remedy thus provided, considered as a reviewable administrative proceeding, is so deficient as not to constitute an "available" remedy. Obviously legislative changes could substantially improve the procedure. The question for our determination, however, is whether the remedy is exclusive, and we are of the opinion that it is not.
We conclude that the county court had jurisdiction to consider the questions raised by defendant's tax objections. In reaching this conclusion, we have considered the jurisdictional question as though it were one of first impression and have re-examined the applicable statutory provisions without regard to our statements in Chicago, Burlington & Quincy Railroad Co. v. Department of Revenue, 17 Ill.2d 376, and People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co. 8 Ill.2d 66, to the effect that the tax-objection procedure is an available and proper remedy. However, even if plaintiff's argument had caused us to doubt the soundness of our statements in these previous cases, we would, under the circumstances, be reluctant to disavow these statements, and we entertain grave doubt that the question should be treated altogether as one of first impression. People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co. 8 Ill.2d 66, was a tax-objection case, in which the essence of the objections was substantially the same as here, namely, that there was a fraudulent discrimination resulting from the undervaluation of locally assessed property. A question was raised as to whether the railroad had pursued the proper remedy. This question was considered by this court, and we concluded that a proper remedy had been pursued. We affirmed the trial court's order striking the objections, on the ground that the railroad had pleaded conclusions rather than facts. However, the opinion squarely indicated that the procedure was a proper one and that the judgment of the trial court was affirmed only because of a technical defect in pleading. While the opinion does not indicate whether or not any claim was made that the Administrative Review Act was the exclusive remedy, it does clearly appear that the question of whether the tax-objection procedure was a proper remedy was raised, was considered by this court, and was decided in the affirmative. Thus the conclusion that the tax-objection procedure is a proper remedy was more than mere dictum.
If plaintiff's claim that the Administrative Review Act affords the sole and exclusive remedy is correct, it would have become so either in 1947 with the amendent to section 138, or in 1951 with the enactment of section 148a of the Revenue Act. Yet not until now has any such claim been made. Our opinion in People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co. 8 Ill.2d 66, was filed in 1956. Two full regular sessions of the General Assembly, and a portion of a third have been held since then. If our opinion in that case overlooked or misconceived the legislative intent, no attempt has since been made by the legislature to set us right. Nor, until this case, has any question been raised by the Department of Revenue. This continued legislative and administrative acquiesence in our conclusion in People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co. suggests that our conclusion might not have been so glaringly wrong as plaintiff now seems to think. Moreover, the uncertainty in plaintiff's argument as to whether or not the tax-objection procedure became unavailable as a result of the 1947 or the 1951 legislation, suggests the possibility that so inadequately expressed an intention as that attributed by plaintiff to the legislature may have been nonexistent.
We conclude, therefore, that the county court had jurisdiction and properly overruled plaintiff's motion to strike the objection.
Before dealing with the main substantive question, it is necessary to dispose of one further argument of plaintiff. Plaintiff, relying on certain language in People ex rel. Prindable v. Union Electric Power Co. 392 Ill. 271, argues that the constitution does not require railroad property to be assessed and taxed uniformly with other property, but that railroad property is a separate class, and that all that the constitution requires is uniformity within the class. Whether the legislature might constitutionally have provided for the assessment of railroad property at its full value while other property is assessed at only 55% of full value is not before us. The legislature has not so provided. The statute requires all property to be assessed at its ...