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In Re Estate of Barker

OPINION FILED MARCH 29, 1976.

IN RE ESTATE OF ZULENA M. BARKER, DECEASED. — (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

ERNESTINE G. BARKER, EX'R, APPELLEE.)



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County; the Hon. Wendell E. Oliver, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

We granted the People's petition for leave to appeal from a judgment of the appellate court (24 Ill. App.3d 959) holding certain provisions of the Illinois inheritance tax act (Ill. Rev. Stat. 1973, ch. 120, par. 385) to be unconstitutional. The issues presented were first raised by the appellate court in the course of oral argument.

The issues relate to section 11 of the Illinois inheritance tax act, which provides:

"It shall be the duty of the circuit judge designated and assigned for that purpose by the Chief Judge of the judicial circuit to ascertain whether any transfer of any property be subject to an inheritance tax under the provisions of this Act, and if it be subject to such inheritance tax, to assess and fix the then cash value of all estates, annuities and life estates or terms of years growing out of said estates and the tax to which the same is liable. * * *

Any person or persons including the Attorney General, dissatisfied with the appraisement or assessment, or the allowance of fees and expenses to the appraiser, or other costs taxed; [sic] may appeal therefrom to the circuit court of the proper county within 60 days after the making and filing of such assessment order * * *." Ill. Rev. Stat. 1973, ch. 120, par. 385.

The circumstances of the case which gave rise to this appeal are set out in the appellate court opinion, and only the facts necessary to reach a decision here will be restated.

On July 9, 1971, a judge of the circuit court of McLean County entered an order assessing certain United States Treasury bonds that were part of a decedent's estate at their fair market value rather than at par value as the Attorney General had urged. On August 6, 1971, the People appealed to the circuit court of McLean County pursuant to the provisions of section 11, and on March 13, 1972, the order of July 9 was affirmed by the same judge who entered the order. A notice of appeal to this court was filed, but the appeal later was transferred to the appellate court under our Rule 365(b). Ill. Rev. Stat. 1973, ch. 110A, par. 365(b).

During oral argument the appellate court panel itself raised questions regarding the constitutionality of provisions set out in section 11. The court concluded that the provision which imposes on the circuit court judge the duty to ascertain and assess inheritance taxes on an estate violated the separation of powers provision of our constitution (Ill. Const. 1970, art. II, sec. 1) by attempting to impose an administrative function on the circuit judge. The court further held that the statute's providing for an appeal to the circuit court within 60 days constituted an unconstitutional encroachment upon this court's rule-making authority over appeals (Ill. Const. 1970, art. VI, sec. 16), and was violative of section 6 of article VI of our constitution, providing for appeals of final judgments of the circuit court to the appellate court (Ill. Const. 1970, art. VI, sec. 6). Saying that the assessment order was a final judgment of the circuit court, the appellate court dismissed the appeal for want of jurisdiction since the Attorney General had not filed his appeal within 30 days of the judgment as prescribed by Supreme Court Rule 303 (Ill. Rev. Stat. 1973, ch. 110A, par. 303).

Section 1 of article II of our constitution provides:

"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." Ill. Const. 1970, art. II, sec. 1.

The appellate court correctly observed that the assessment of taxes is in its nature a non-judicial function. One with the responsibility of assessing taxes is executing revenue laws enacted by the legislature, and this traditionally is a function of the executive branch of government. However, section 4(d) of the Transition Schedule of our constitution of 1970 provides:

"Section 4. JUDICIAL OFFICES

(d) Until otherwise provided by law * * * the Circuit Courts shall continue to exercise the non-judicial functions vested by law as of December 31, 1963, in county courts or the judges thereof." ...


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