APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
COHEN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Julius Lopin and Aldens Properties, Inc., each filed separate complaints in chancery in the circuit court of Cook County against the defendants, county assessor, county clerk and county treasurer, ex-officio collector, to enjoin the alleged constructively fraudulent assessments of the real property of the respective plaintiffs and the collection of the taxes resulting therefrom for the year 1970. The trial court sustained defendants' motions to dismiss each of the foregoing complaints. Each plaintiff appeals from the respective order of dismissal. The causes have been consolidated on appeal.
On appeal, each plaintiff contends that the doctrine of exhaustion of remedies should not be applied to bar the present proceedings and, in the alternative, that the plaintiffs be excused from exhausting the administrative remedies for the reason that section 115 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 596) is insufficient to meet the standards of notice required by due process of law. Plaintiff Lopin additionally contends that he does not have an adequate remedy at law inasmuch as his filing an objection in the County Division did not constitute an election of remedies and that the dismissal of such objection left him without a legal remedy which he could pursue.
We affirm each of the orders dismissing the complaints for injunctive relief. The pertinent facts follow.
(No. 57815) Julius Lopin, plaintiff:
Plaintiff Lopin, under protest, paid the 1970 real estate taxes on property located at 1014 South Kildare Avenue, Chicago. On January 20, 1972, he filed an objection to the application of the Cook County treasurer for judgment and order of sale as to his property pursuant to section 194 of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 675). On January 27, 1972, plaintiff Lopin commenced the chancery action from which the instant appeal arises, to enjoin the collection of excess taxes for the year 1970. In each of his proceedings he alleged that the 1970 assessed valuation of $423,653, as fixed by the assessor, and the taxes collected thereon, are grossly excessive, illegal, confiscatory, fraudulent and void because the assessment is grossly in excess of the full fair valuation thereof and to the extent that the 1970 assessed valuation exceeds $32,500, being 50 percent of the purchase price at a fair and voluntary sale of the subject property on October 23, 1970. On March 15, 1972, "on the motion of the objector to voluntarily dismiss" his objection as to subject property, the county division of the circuit court entered an order dismissing the objection "with prejudice."
On May 17, 1972, defendants moved to dismiss plaintiff's complaint in chancery and alleged in part that plaintiff had an exclusive and adequate remedy at law; that plaintiff filed his objection and voluntarily withdrew the same; that equity lacks jurisdiction to enjoin the collection of taxes; and that plaintiff's complaint failed to allege the exhaustion of administrative remedies or a reasonable reason for not doing so. On May 17, 1972, the trial court dismissed plaintiff's complaint in chancery with prejudice, from which order plaintiff Lopin appeals.
(No. 57816) Aldens Properties, Inc., plaintiff:
Plaintiff Aldens filed a complaint in chancery for injunctive relief in the circuit court of Cook County on January 23, 1972. Plaintiff alleged in part that it had paid, under protest, the 1970 real estate taxes for its property located at 1916 South Laramie Avenue, Cicero, and that the 1970 assessed valuation of $535,204, as fixed by the assessor, and the taxes collected therefrom are grossly excessive, illegal, confiscatory, fraudulent and void because the assessment is grossly in excess of the full fair valuation thereof, and to the extent that the 1970 valuation exceeds $287,500, being 50 percent of the sale price at a fair voluntary sale on July 28, 1971. On February 10, 1972, defendants filed a motion to dismiss the complaint in chancery and alleged in part that there is an exclusive and adequate remedy at law which plaintiff should pursue and is pursuing in its objection No. 179; that equity lacks jurisdiction to enjoin the collection of the taxes and that the complaint fails to allege that plaintiff has exhausted its administrative remedies or a justification for not so doing.
On May 17, 1972, the trial court, upon a hearing of the motion, dismissed plaintiff's complaint in chancery with prejudice, from which order plaintiff Aldens appeals.
Plaintiffs contend that the doctrine of exhaustion of remedies should not be applied as a bar to the present action in chancery to challenge an allegedly fraudulent and excessive assessment. Plaintiffs first argue that section 115 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 596), in providing notice 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.
• 1 This issue was considered upon a consolidated hearing with another case as to whether proceedings there by objection to an application for judgment and sale were barred for failure to exhaust a statutory remedy through the Board of Appeals to review 1969 real estate tax assessments. In an opinion filed this date (In re Application of County Treasurer v. American National Bank & Trust Co., 26 Ill. App.3d 753, ___ N.E.2d ___), we ...