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Hanley v. Kusper

OPINION FILED SEPTEMBER 26, 1975.

FLORENCE K. HANLEY ET AL., APPELLANTS,

v.

STANLEY T. KUSPER, JR., COUNTY CLERK, ET AL., APPELLEES. — CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, APPELLEE,

v.

STANLEY T. KUSPER, JR., COUNTY CLERK, ET AL., APPELLANTS.



No. 47036. — Appeal from the Circuit Court of Cook County; the Hon. Thomas C. Donovan and Raymond S. Sarnow, Judges, presiding.

No. 47117. — Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1975.

Bernard Carey, State's Attorney, of Chicago (Sheldon Gardner, Deputy State's Attorney, and Lorence H. Slutzky, David J. Magee, and Paul P. Biebel, Jr., Assistant State's Attorneys, of counsel), for appellants.

Edmund A. Stephan, Robert L. Stern, Wayne W. Whalen, and Robert K. Hagan (Mayer, Brown & Platt, of Chicago, for appellee.

Chicago Bar Association, of Chicago, and Illinois State Bar Association, of Springfield (James P. Connelly, John T. Mackay, L. Edward Bryant, Jr., Samuel W. Hunt, Jr., Robert M. Farquharson, William P. Sutter, David F. Sterling, James Zartman, David V. Flynn, and J. Robert Barr, of counsel), amici curiae.

Davis & Davis, and Dunn, Brady, Goebel, Ulbrich, Morel and Jacob, both of Bloomington (David Davis IV, Richard T. Dunn and James A. Knecht, of counsel), for amicus curiae Corporate Fiduciaries Association of Southern Illinois.

In these consolidated cases we are asked to reconsider our decisions in Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137 (1971), and 54 Ill.2d 237 (1973). In the first of those opinions we considered the interpretation and the validity of article IX-A which was added to the Constitution of 1870. The added article IX-A read as follows:

"Section 1. Notwithstanding any other provision of this Constitution, the taxation of personal property by valuation is prohibited as to individuals."

In our first opinion we examined the interpretive material, rejected some of the interpretations proposed by the parties and concluded, in the language of the resolution adopted by both houses of the General Assembly, that "by the use of the phrase `as to individuals', this General Assembly intended to mean a natural person, or two or more natural persons as joint tenants or tenants in common." (49 Ill.2d 137, 140.) We then held, relying upon Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 72 L.Ed. 927, 48 S.Ct. 533 (1928), that the amendment, so interpreted, violated the equal protection clause of the fourteenth amendment of the Constitution of the United States. Mr. Justice Davis dissented. Thereafter, the Supreme Court of the United States granted certiorari and reversed and remanded, holding that subsequent cases had undermined the Quaker City Cab case and characterizing that case as "only a relic of a bygone era." 410 U.S. 356, 365, 35 L.Ed.2d 351, 358, 93 S.Ct. 1001, 1006 (1973).

After the case had been remanded to this court, memoranda were filed by the parties and by the Corporate Fiduciaries Association of Illinois as amicus curiae urging further interpretation of the opinions of this court and of the Supreme Court of the United States. In its per curiam opinion responding to those requests (54 Ill.2d 237, 239), the court stated:

"The personal property thus left subject to taxation under article IX-A includes the following categories of ownership: partnerships, limited partnerships, joint ventures, professional associations, and professional service corporations. Trustees and other fiduciaries, whether corporate or not, do not own property as natural persons, and they were not exempted from taxation by article IX-A. Bank stock, like the shares of any other corporation, is exempt only when owned by a natural person or by two or more natural persons as joint tenants or tenants in common."

Mr. Justice Goldenhersh dissented from that portion of the opinion which related to trustees and other fiduciaries. Lake Shore Auto Parts Co. v. Korzen (1973), 54 Ill.2d 237, cert. ...


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