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Exchange Nat. Bank v. Cullerton

JUNE 6, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.


Plaintiff, Exchange National Bank of Chicago, as trustee, filed a complaint in the chancery division of the circuit court of Cook County against defendants, County Assessor, County Board of Appeals, County Clerk, and County Treasurer and Collector, for declaratory judgment and injunctive relief as to an allegedly void and invalid increase in assessed valuation of plaintiff's real estate for the year 1970, a nonquadrennial year. Both plaintiff and defendants filed motions for summary judgment. A judgment in favor of plaintiff was entered. Defendants appeal.

Defendants originally contend that (1) plaintiff's complaint filed before the Board of Appeals constituted a general appearance; (2) the complaint waived the defects of the Assessor's notice and hearing provisions; and (3) the filing of the complaint conferred jurisdiction on the Board of Appeals to validate an increase in assessed valuation in a nonquadrennial year. Defendants, in a supplemental memorandum filed after oral arguments by leave of this court, argue that the trial court erred in not dismissing the plaintiff's complaint because of an adequate, available remedy at law by which it could have raised the questions presented herein. We affirm. The facts follow.

On January 10, 1971, one of the beneficiaries of the above trust received notice from the Assessor that a hearing would be held on January 18, 1971, as to a proposed increase in valuation of plaintiff's described real estate in Elk Grove Township for the year 1970. Upon his arrival at the Assessor's office on the date set, counsel for plaintiff was advised that no such hearing would be held due to the unavailability of the pertinent property record cards. The Assessor had completed work on the books for Elk Grove Township prior to January 18, 1971, and transmitted them to the Board of Appeals without granting plaintiff any opportunity for a hearing on the increased valuation.

On or about March 16, 1971, plaintiff filed a real estate valuation complaint before the Board of Tax Appeals. In that document plaintiff alleged that the assessment was excessive, and in support thereof stated that "the unit price should be reduced" and "the condition factor should be corrected" as per the affidavits which it intended to file with the Board on the date of the hearing. At the hearing before the Board, plaintiff confined its argument to its motion filed at that time in which it contested the jurisdiction of the Assessor to revise an assessment in a nonquadrennial year without complying with the statutory requirements and also contested the jurisdiction of the Board to confirm such void assessment. The motion was denied and the Board upheld its jurisdiction and the action of the Assessor in increasing the assessed valuation of the property. Subsequently, plaintiff filed this action in the chancery division of the circuit court.

The relevant portion of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 578) which empowers the Assessor to revise real estate assessments in nonquadrennial years states:

"On any such revision by the county assessor, except where such revision is made on complaint of the owner, no assessment shall be increased without previous notice to the owner and an opportunity to be heard. * * * The assessor shall have no power to change the assessment or alter the assessment books in any other manner or for any other purpose so as to change or affect the taxes in that year, except as ordered by the board of appeals."

The authority and jurisdiction of the Board of Appeals is set forth in section 113 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 594) which provides, in pertinent part:

"In counties containing 500,000 or more inhabitants, the board of appeals in any year shall

(1) On complaint that any property is over assessed or under assessed, or is exempt, review and order such assessment corrected;

(2) Order the county assessor to correct any mistake or error (other than mistakes or errors of judgment as to the valuation of any real or personal property) in the manner provided in Sections 122 and 124 of this Act; * * *."

• 1 Concerning defendants' first contention on appeal, the same question was presented to this court in Goodfriend v. Board of Appeals (1973), 18 Ill. App.3d 412, 305 N.E.2d 404. In that case several taxpayers in independent suits sought to enjoin the collection of real estate taxes for the reason that the assessment was void and illegal in that the Assessor had failed to provide taxpayers with proper notice and opportunity to be heard. The assessments were made in a nonquadrennial year. Taxpayers filed limited appearances before the Board of Appeals and at the hearing contested only the jurisdiction of the Board to confirm the assessments and the legality of the assessment itself. In all cases the Board confirmed the assessments. Three taxpayers filed in chancery two-count complaints, one count requesting that a writ of certiorari issue, and the other praying for injunctive relief from the collection of the taxes. Two other taxpayers, in separate suits, sought injunctive relief only. The trial court concluded that all the increased assessments were void and permanently enjoined the defendants from attempting to collect the tax. On appeal we held that:

"Notice to the property owner and an opportunity to be heard are jurisdictional; they must precede any change or reassessment. (Lindheimer v. Nelson, 369 Ill. 312, 316, 16 N.E.2d 734.) An assessment without notice and hearing is invalid. People ex rel. Edgar v. National Box Co., 248 Ill. 141, 93 N.E. 778.

The notice and hearing were jurisdictional. (People ex rel. Rea v. Nokomis Coal Co., 308 Ill. 45, 50, 139 N.E. 41.) Appellant Board of Appeals could not confirm the increases in assessments in the presence of this jurisdictional defect. Under these circumstances, the complaints which [plaintiffs] filed were necessary; they did not waive any right under the Revenue Act. Therefore, by filing the complaints which only questioned the jurisdiction of appellant Board of Appeals [plaintiffs] did not waive their objection that the County Assessor had not given them notice and ...

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