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Town of Montebello v. Lehr

MARCH 26, 1974.

THE TOWN OF MONTEBELLO, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

A.E. "ED" LEHR, COUNTY TREASURER, ET AL., DEFENDANTS AND COUNTERCLAIMANTS-APPELLEES.



APPEAL from the Circuit Court of Hancock County; the Hon. JOHN W. GORBY, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 22, 1974.

Plaintiff, Township of Montebello, situated in the County of Hancock, Illinois, brought this action in the circuit court of Hancock County against the County of Hancock and its treasurer. The complaint sought temporary and permanent injunctions preventing the treasurer from withholding funds payable from taxes collected for the benefit of the Township of Montebello, hereinafter referred to as the town. Hancock County filed a counterclaim seeking a judgment against the town in the amount of $1,140, being the amount which, according to the complaint, the treasurer was threatening to withhold and which withholding action the original complaint sought to prevent. The town moved to dismiss the counterclaim, which motion was denied by the trial court, and after the town elected to stand on its motion by declining to answer the counterclaim, the cause was considered as confessed and judgment was entered in favor of the county for the amount which it sought in its counterclaim. The town has appealed, arguing that for the several reasons set forth in its motion to dismiss the counterclaim, the judgment of the trial court is erroneous.

As may be discerned from the counterclaim and the motion to dismiss, this controversy is the result of a problem created by a constitutional amendment to the revenue article of the Constitution of 1870. Such amendment (Ill. Const. (1870), Art. IX-A) became effective January 1, 1971, and in substance provided that the personal property of individuals was no longer taxable by valuation. In accord with the constitutional mandate and implementing legislation, the personal property of individuals was not assessable during the period April 1, 1971, through June 30, 1971, the period during which township assessors were authorized to assess property for that year. In July, 1971, the Illinois Supreme Court in Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592, held the constitutional amendment (Ill. Const. (1870), Art. IX-A) violative of the United States Constitution. The immediate effect or consequence of this decision was that the personal property of individuals, which township assessors had no authority to assess during the period provided for the performance of their duties, was now considered assessable. The Board of Review of Hancock County, in recognition of the consequences of the Illinois Supreme Court decision, thereupon embarked upon a plan of assessment of the personal property of individuals by causing such property to be assessed for the year 1971 under its authority to assess omitted property. In September, 1971, the Board of Review employed I.J. Cox to assess the personal property of individuals in Montebello Township. Cox was the regularly elected assessor for the township. He had made the assessment of property in the township in his capacity of assessor as required by law during the period April 1, 1971, through June 30, 1971, such assessment not including the assessment of personal property of individuals, and had turned in his assessment records as required by law. In September, 1971, Cox completed the work of assessing the personal property of individuals and for his services was paid the sum of $1,140 by the County of Hancock. It is the amounts which the county paid Cox for assessing personal property of individuals in September, 1971, which the county sought in its counterclaim to collect from the town and which the court held the town obligated to pay.

In accord with the assessment of the personal property of individuals, taxes were levied and collected for the year 1971. However, the United States Supreme Court in Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 35 L.Ed.2d 351, 93 S.Ct. 1001, upon further review of the decision of the Illinois Supreme Court case (Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592), held the amendment (article IX-A, Constitution of 1870) to be in accord with the provisions of the Constitution of the United States and as a consequence of such determination the decision of the Illinois Supreme Court to the contrary was reversed. As a result of this decision the taxes collected as a consequence of the assessment of the personal property of individuals were refunded to the individual taxpayers and hence were not available for the uses of any of the county taxing bodies including the Township of Montebello.

The aforementioned facts furnish the background for the position of the town as set forth in its complaint and motion to dismiss, from which it concludes it was under no obligation to pay the costs attributable to the employment of Cox to make the September, 1971, assessment of personal property of individuals.

The county in its counterclaim alleged in the count upon which judgment was awarded against the town that the obligation of the town arose from a quasi contract. From the pleadings and arguments, it is undisputed that there is no express agreement between the parties.

On this appeal the town's objections to the court's action fall into two general categories. First, the facts are insufficient as a matter of law to establish any basis for any quasi contractual obligation. Second, the expenses for which the county sought reimbursement are not proper expenses and hence the county was not entitled to recover them from the town.

• 1 Dealing with the second problem first, it is our conclusion the expenses were proper so far as section 8 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 489) is concerned. We do not agree with the town that these statutory provisions dealing with the appointment of members of the County Board of Review and the clerk thereof, together with the compensation for such officers, exclude the county from authorizing and paying for such assistants as the Board of Review may need. The statutory provision cannot be construed so as to prevent the employment of anyone other than the members of the Board of Review and its clerk to carry out the duties of the Board of Review.

Nor do we believe there is merit in the town's claim that the assessment as made by Cox was contrary to the authority vested in the Board of Review under which it undertook the assessment of omitted personal property. It is true that Cox was the town's legally elected assessor and it is also true that Cox was employed by the Board of Review to aid in the assessment. However, it does not follow that the assessment which was made was made by Cox in his official capacity as assessor. According to paragraph 6 of the counterclaim, the county alleged, "That pursuant to provisions of Para. 589 (1) of Chapter 120, Ill. R.S. (1969), the Board of Review of Hancock County, Illinois, caused the personal property of individuals in Montebello Township which had not been assessed by the Township Assessor to be assessed." We believe such allegation which stands admitted is sufficient to justify the conclusion that even though Cox was the assessor at the time his services were rendered under the authority of the Board of Review, the resulting assessment was that of the Board and not that of the town assessor. In this connection it should be noted that the issue before us is not the validity of the assessment of omitted property but only the propriety of the payment for services rendered in connection with such assessment. No claim in fact is made that the services were not rendered by Cox or that the amounts paid for his services were unreasonable.

• 2 Having determined that the charges for which the county sought recovery were properly incurred, we next turn to the question of whether the application of quasi contract principles authorizes their recovery from the town. As might be expected, the unique factual circumstances which gave rise to this controversy have no counterpart in the judicial precedents of this state. Consequently, we are required to consider the general rules relating to this type of cause of action. These rules are summarized in I.L.P. Contracts, sec. 5, p. 188. (See also, City of Chicago v. Pittsburgh C., C & St. L.R.R. Co., 146 Ill. App. 403.) The general rule is that where there is an obligation or duty and the receipt of a benefit related to such duty, the law may imply from the circumstances or the relation of the parties a promise to pay. As has been often stated, such a promise is fictitious and arises by implication of law wholly apart from the usual rules relating to contracts. As indicated in City of Chicago v. Pittsburg, C., C. & St. L.R.R. Co., 146 Ill. App. 403, where there are coexistent duties, a contract implied in law may be the basis of establishing liability of that party having the primary duty. As observed in First National Bank of Lincolnwood v. Glenn, 132 Ill. App.2d 322, 270 N.E.2d 493, "A contract implied in law is equitable in its nature and is one which reason and justice dictate. * * * It exists where there is a plain duty and a consideration. * * * Its essential element is the receipt of a benefit by one party which would be inequitable for that party to retain. * * *"

• 3 In applying the foregoing observations, we believe the statute imposes the primary duty of paying for the costs of assessment of personal property upon the township as a quasi-municipal corporation. (Ill. Rev. Stat. 1969, ch. 120, par. 483.2 and Ill. Rev. Stat. 1969, ch. 139, par. 124 (1)(4).) This duty is usually exercised by paying the charges, fees and expenses of the assessor who is charged in the first instance with the duty of assessing the property in his township. Where, as in this case, intervening conditions have prevented or interferred with the usual mechanism for accomplishing the assessment of property, the financial duty of the town is not extinguished because another mode of making the assessment is required. This is not to say that the Board of Review is entitled to recover from the town for the assessment of property inadvertently omitted from the tax roles.

• 4 Notwithstanding the town's contention to the contrary, we believe the town did receive a benefit so far as equitable considerations are concerned. In this respect the question of benefit must be viewed at the time the Board of Review exercised its duty, as such duty was affected by the then existing state of the law. The assessment of property and the levy and collection of taxes is a continuing function and the various procedures must be undertaken and accomplished in an existing time frame. That later contingencies may or may not occur does not detract from the necessity of doing what was required at the time it was done. At the time the assessment of omitted personal property of individuals was undertaken by the Board of Review, Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592, announced the then prevailing law and held such property subject to assessment. That this decision ...


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