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In Re Application of County Collector

APRIL 11, 1975.

IN RE APPLICATION OF THE COUNTY COLLECTOR. — (TAX PROPERTIES CORPORATION, PETITIONER-APPELLANT,

v.

THE COUNTY OF ALEXANDER, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Alexander County; the Hon. MICHAEL P. O'SHEA, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from two orders, one granting the respondent-appellee's motion to strike and the other denying petitioner-appellant's motion to reconsider, of the circuit court of Alexander County in a tax-sale proceeding. The factual situation which is the basis for this appeal is, in summary, as follows.

On November 11 and 12, 1969, Tax Properties Corporation, hereinafter petitioner, or its predecessor in interest, purchased a number of tax sale certificates during the Alexander County tax sale. On November 9, 1972, prior to the extended date for redemption of these certificates, petitioner filed an application for a refund of taxes, alleging that the improvements upon the properties represented by these certificates had been substantially destroyed subsequent to the 1969 tax sale. The County of Alexander, hereinafter respondent county, filed a motion to strike the application for refunds on these certificates. The circuit court, after argument of counsel, entered an order granting the motion to strike and subsequently entered an order denying petitioner's motion to reconsider. From these orders the petitioner appeals.

This cause arises under the Revenue Act of 1939 (Ill. Rev. Stat., ch. 120, par. 741). The genesis of the dispute lies in the fact that this statute was amended effective July 1, 1970, subsequent to the petitioner's purchase of the tax sale certificates at the tax sale, but prior to the issuance of tax deeds. Prior to July 1, 1970, this statute provided, in pertinent part, that:

"Whenever it shall be made to appear to the satisfaction of the county clerk that any tract or lot was sold, and that such tract or lot was not subject to taxation, or that the taxes or special assessments had been paid previous to the sale of said tract or lot, or that there is a double assessment, or that the description is void for uncertainty, he shall make an entry opposite to such tracts or lots in the tax judgment, sale, redemption and forfeiture record, that the same was erroneously sold, and such entry shall be prima facie evidence of the fact therein stated, and unless such error is disproved, the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and cancel such certificate so far as it relates to such tract or lots." (Ill. Rev. Stat. 1969, ch. 120, par. 741.)

At the time of the petitioner's application for a refund this statute had been amended, in pertinent part, to provide that:

"Whenever it shall be made to appear to the satisfaction of the county clerk or the court which ordered the property sold that any tract or lot was sold, and that such tract or lot was not subject to taxation, or that the taxes or special assessments had been paid previous to the sale of said tract or lot, or that there is a double assessment, or that the description is void for uncertainty, or upon application of the tax purchaser that the improvements upon property sold have been substantially destroyed subsequent to the tax sale and prior to the issuance of the tax deed, the county clerk or the court which ordered the property sold shall declare such sale to be a sale in error and the county clerk he [sic] shall make an entry opposite to such tracts or lots in the tax judgment, sale, redemption and forfeiture record, that the same was erroneously sold, and such entry shall be prima facie evidence of the fact therein stated, and unless such error is disproved, the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and cancel such certificate so far as it relates to such tract or lots." (Ill. Rev. Stat. 1971, ch. 120, par. 741.) (Emphasis added.)

If the 1969 statute is applicable, the petitioner's application for refund was properly stricken. If the 1971 statute, effective July 1, 1970, is applicable, the petitioner's application would properly be granted. We find that the 1969 statute is controlling.

• 1 In our opinion, the case of Garrett v. Wiggins, 2 Ill. (1 Scam.) 335, is controlling. In that case the plaintiff purchased at a tax sale in 1829, at which time the applicable statute provided for certain proofs to be made for title to pass. In 1831 the deed for the property sold for taxes was executed and the plaintiff brought an ejectment action based on the proofs required by the applicable statute of 1829. However, in the interim, the legislature had amended the applicable statute so as to require different proofs to be made for title to pass. The Illinois Supreme Court found for the plaintiff as a matter of contract law. In doing so the court first said:

"This last statute is essentially different from the preceding one, upon the same subject. But we are not called upon in this case to give a construction to that statute, as I am clearly of the opinion that it is not applicable to this case. Without the clearly expressed intention of the legislature, courts will not give to a law a retrospective operation, even where they might do so without a violation of the paramount law of the Constitution; but no such intention can be collected from the law of 1829. Its language and objects are prospective. It relates only to contracts and proceedings under its provisions, and cannot by a fair construction be so extended, as to interfere with, or impair, prior contracts, rights or obligations." (Garrett v. Wiggins, 2 Ill. (1 Scam.) 335, 336.)

A reading of the statute effective July 1, 1970, discloses no legislative intent, express or implied, to make application of that statute retrospective. Likewise, research has failed to disclose any case applying this statute, or its immediate predecessor, retrospectively.

Petitioner-appellant argues, on a slightly different tack, that the statute in effect at the time of the application for refund, and not the statute in effect at the time of the tax sale is controlling. In support of this proposition he cites a historical note which says:

"Section 3 of the Act of 1951 provided that it should apply to all real estate sold for non-payment of general taxes and special assessments after September 1, 1951." (Ill. Ann. Stat., ch. 120, par. 744, Historical Note at 172 (Smith-Hurd 1970).)

Petitioner-appellant further cites the case of In re Application of County Collector, 7 Ill. App.3d 124, 287 N.E.2d 81, in support thereof. It is his position that the various statutory provisions relating to redemption from tax sales and application for tax deeds have been amended by almost every legislative session in the last 20 years, and that in light of these constant changes, the courts have consistently applied the law in effect at the time of an application for tax deed, rather than the law in effect at the time of the issuance of the ...


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