APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DEMPSEY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The county treasurer filed an application in the Circuit Court of Cook County for judgment and order of sale against real estate returned delinquent for the nonpayment of general taxes for 1969 and to determine the correct taxes where paid under protest. Objector, as owner of two parcels of real estate involved in the application, filed its objections, claiming that the parcels were fraudulently overassessed for the year 1969. Objector appeals from the order sustaining applicant's motion to dismiss the objections. The issues presented for review are:
I. Whether notice by publication of the time to file complaints with the Board of Appeals of Cook County pursuant to section 115 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 596) violates due process of law.
II. Whether a 10-day period in which to file complaints with the Board of Appeals has been provided.
III. Whether a taxpayer must exhaust his statutory administrative remedy of filing a complaint with the Board of Appeals before filing an objection to the application in the Circuit Court. The material facts herein are as follows.
Objector is the owner of two parcels of real estate which it claims were fraudulently overassessed for 1969. One of the parcels is located in the town of West, and one in the town of South. The full amounts of taxes on both parcels were paid under protest. On Friday, July 11, 1969, the Board of Appeals published a notice in CHICAGO TODAY that complaints for the town of West would be received from July 11, 1969, through July 21, 1969. The Board published a notice on Monday, December 22, 1969, in CHICAGO TODAY that complaints for the town of South would be received from December 22, 1969, through January 2, 1970. Objector did not file a complaint with the Board of Appeals but did file objections in court. Applicant's motion to dismiss the objections was sustained on the grounds that the Board of Appeals properly published notice of time to file complaints, that the notice provision is constitutional, and that the objector had failed to exhaust his administrative remedies by his failure to file complaints with the Board of Appeals. Objector appeals from the order of dismissal.
Objector contends that section 115 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 596), in providing notice to a taxpayer of the time during which complaints may be filed before the Board of Appeals of Cook County, violates due process of law in that (1) a newspaper publication is insufficient; (2) the statute fails to fix a date certain for filing; and (3) it is further insufficient in requiring only one newspaper publication 10 days before the time for filing terminates. Section 115 provides in pertinent part:
"In counties containing 500,000 or more inhabitants, at least one week before the meeting of the board of appeals to revise and correct assessments, the board shall publish a notice of the time and place of its meeting. The board shall, from time to time, publish notices which shall specify the date and place at which complaints may be filed and the towns or taxing districts, the real estate or personal property assessments, or both, for which have heretofore been completed by the county assessor, and which will be considered for revision and correction at such time. All notices required by this section may provide for a revision and correction at the specified time of one or two or more towns or taxing districts, and all such notices shall be published once in at least one newspaper of general circulation published in the county. The board of appeals at the time and place fixed, and upon notice given from time to time as in this section provided, may receive and hear complaints and revise and correct such assessments by towns or taxing districts, subject to the condition that complaining taxpayers shall have at least ten days after the date of publication of the notice within which to file complaints." *fn1
In arguing that a newspaper publication is insufficient, objector cites Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652, and Walker v. City of Hutchinson (1956), 352 U.S. 112, 1 L.Ed.2d 178, 77 S.Ct. 200, for the proposition that the distinction between in rem and in personam is irrelevant in determining the notice requirements of due process, and also "to gain perspective" as to the sufficiency of notice by publication where property rights are involved. However, neither the cited cases involved administrative tax proceedings. The notice in Mullane was published by the defendant bank to inform a beneficiary of its petition to the court for approval of its accounts as trustee of a common trust fund. The United States Supreme Court there held notice by publication constitutionally sufficient as to unknown parties and unknown interests or addresses, but insufficient as to known parties with known places of residence, stating:
"This Court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that in the case of persons missing or unknown employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights. [Citations.]
Those beneficiaries represented by appellant whose interests or whereabouts could not with due diligence be ascertained come clearly within this category. As to them the statutory notice is sufficient. However great the odds that publication will never reach the eyes of such unknown parties, it is not in the typical case much more likely to fail than any of the choices open to legislators endeavoring to prescribe the best notice practicable.
"Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. * * * and we have no doubt that such impracticable and extended searches are not required in the name of due process. The expense of keeping informed from day to day * * * would impose a severe burden on the plan, and would likely dissipate its advantages. These are practical matters in which we should be reluctant to disturb the judgment of the state authorities." 339 U.S. 306, 94 L.Ed. 865, 875, 317-318.
In Walker the notice held insufficient was published by the city in a court action to condemn property where the landowner's name was available from the official record of the city; the court stated that there was no compelling or ...