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Doran v. Cullerton

OPINION FILED MAY 22, 1972.

PHILIP A. DORAN, APPELLEE,

v.

P.J. CULLERTON, COUNTY ASSESSOR, ET AL., — (LAURENE R. HOPPE ET AL., APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County which held the homestead exemption, authorized by section 19.23-1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 500.23-1), as applied to assessments made in 1971 and taxes payable in 1972, unconstitutional. This decision was appealed to this court pursuant to Rule 302(a) of the Rules of the Supreme Court. Ill. Rev. Stat. 1971, ch. 110A, par. 302(a).

The Act in question (Ill. Rev. Stat. 1971, ch. 120, par. 500.23-1) was passed by the 77th General Assembly in June of 1971 and approved by the Governor on July 13, 1971 (P.A. 77-266).

This is an amendatory act to the Revenue Act of 1939, filed May 17, 1939, as amended. The Act, passed as P.A. 77-266, reads as follows:

"AN ACT to add Section 19.23-1 to and to repeal Section 19.24 of the `Revenue Act of 1939', filed May 17, 1939, as amended.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Section 19.23-1 is added to the `Revenue Act of 1939', filed May 17, 1939, as amended, the added Section to read as follows:

Sec. 19.23-1. A homestead exemption limited to a $1,500 maximum reduction from the value, as equalized or assessed by the Department of Local Government Affairs, of real property that is occupied as a residence by a person 65 years of age or older who is liable for paying real estate taxes on the property and is an owner of record of the property or has a legal or equitable interest therein as evidenced by a written instrument, except for a leasehold interest. This amendatory Act of 1971 applies to assessments made in 1971 and thereafter and taxes payable in 1972 and thereafter and the county assessor or supervisor of assessments, as the case may be, shall afford persons qualifying for exemptions under it a reasonable opportunity to file for such exemptions after its effective date for the year 1971, and on the first day of March of each succeeding year.

Section 2. Section 19.24 of said Act is repealed.

Section 3. If the application of this amendatory Act to assessments made in 1971 or to 1971 taxes payable in 1972 is held invalid on the ground of retroactivity or because of violation of the Constitution of 1870, such invalidity shall not affect the application of this amendatory Act to assessments and taxes for subsequent years or impair its validity under the Constitution of 1970."

The proceedings in the circuit court were instituted by Philip A. Doran, a taxpayer under the age of 65 years who alleged that he represented all taxpayers similarly situated.

The complaint named as defendant P.J. Cullerton, Cook County Assessor, Bernard J. Korzen, Cook County Collector, and Edward V. Hanrahan, State's Attorney of Cook County. The complaint further named the latter as the attorney for all taxpayers over the age of 65 who would qualify for the exemption authorized by the statute. By order of court the State's Attorney was permitted to withdraw and was stricken as a party defendant. Thereafter leave was granted to Robert J. Lenhausen, Director of the Department of Local Government Affairs to intervene as party defendant. An additional party defendant, Laurene R. Hoppe, alleged to represent the class of taxpayers over the age of 65, was also permitted to intervene. Only the intervenors are appellants herein.

Section 19.23-1, added by Public Act 77-266, grants an exemption of $1,500 assessed valuation of "real property that is occupied as a residence by a person 65 years of age or older who is liable for paying real estate taxes on the property and is an owner of record of the property or has a legal or equitable interest therein as evidenced by a written instrument, except for a leasehold interest." The amendatory provision specifically stated that said exemption applied to the assessments for the year 1971 for taxes payable in 1972, and for all subsequent years thereafter.

This homestead exemption would not be valid under the constitution of 1870 (Hoffman v. Lehnhausen, 48 Ill.2d 323), but is authorized by section 6 of article IX of the Illinois constitution of 1970 which provides in part: "The General Assembly by law may grant homestead exemptions or rent credits."

The controversy herein arises due to the fact that the Illinois constitution of 1870 was in full force and effect from January 1, 1971, through and including June 30, 1971. The Illinois constitution of 1970 did not become effective until July 1, 1971. (Sec. 1 of Adoption Schedule.) Thus, the paramount question is whether the General Assembly could apply section 6 of article IX of the Illinois constitution of 1970 retroactively to a time antedating the effective date of said constitutional provision. The intervening defendants urge that People ex rel. Ogilvie v. Lewis, 49 Ill.2d 476, is dispositive of the issue. We do not agree. In the Ogilvie case we approved the enactment of legislation in anticipation of an adopted but not yet effective ...


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