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In Re Application of County Treasurer

OPINION FILED OCTOBER 4, 1976.

IN RE APPLICATION OF COUNTY TREASURER. — (BERNARD J. KORZEN, COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR, APPLICANT-APPELLEE,

v.

COMMERCIAL STAMPING & FORGING, INC., OBJECTOR-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Commercial Stamping & Forging, Inc. (Objector) appeals from the dismissal of its objection to the county collector's application for judgment for 1969 real estate taxes and from the judgment for the full amount of those taxes. The facts are stipulated:

In 1968, Inland Steel Company was the owner of the real estate located at 6558 South Menard Street, Chicago, Illinois. In that year it obtained from the assessor of Cook County a downward revision in the assessed valuation from $891,719 to $349,963. In March, 1969, the property was sold to the objector, Commercial Stamping & Forging, Inc. In 1969, a non-quadrennial year, the assessed value was increased to $957,196. No actual notice of said increase was given to or received by either the objector or Inland Steel. Additionally, no notice of the increase in the assessed value was ever published by the assessor. The objector's 1969 tax bill was $68,534.54, payable in two installments of $34,267.27 each. On May 1, 1970, it paid $27,500 of its first installment under protest. The balance of the outstanding tax and interest accumulated thereon was paid under protest just prior to the objector's resting its case at the trial of the objection. The paid tax bills and protest letters were admitted into evidence.

At the conclusion of the objector's case in chief, the county collector moved to dismiss the objection for failure of the objector to comply with the prepayment requirement of sections 194 and 235 of the Revenue Act of 1939, as amended (Ill. Rev. Stat. 1969, ch. 120, pars. 675 and 716), in that it did not pay all of the tax installments due prior to the filing of the objection.

The trial court, in a memorandum opinion filed May 12, 1975, held that Inland Steel was entitled to notice of a non-quadrennial revision of the assessment and that the 1969 increase in assessed value was illegal because (1) no actual notice of said increase was given by the assessor to anyone and (2) there was no publication of the change of the assessment in the non-quadrennial year of 1969. The court further held the language of sections 194 and 235, requiring the payment of all tax installments due to be made prior to the filing of the objection, was mandatory and that the objector's failure so to pay required the dismissal of the objection.

Objector's first contention is that the prepayment requirement of sections 194 and 235 of the Revenue Act of 1939, as amended (Ill. Rev. Stat. 1969, ch. 120, pars. 675 and 716), is directory and not mandatory. These sections provide in pertinent part as follows:

"If any person desires to object pursuant to Section 235 of this Act to all or any part of a real property tax for any year, for any reason other than that the real estate is not subject to taxation, he shall first pay all of the tax installments due, * * *." (Emphasis added.) Ill. Rev. Stat. 1969, ch. 120, par. 675.

"* * * Provided, that no person shall be permitted to offer any such defense unless such writing specifying the particular cause of objection shall be accompanied by an official original or duplicate tax collector's receipt, showing that all taxes to which objection is made have been paid under protest pursuant to the provisions of section 194 of this Act; * * *." Ill. Rev. Stat. 1969, ch. 120, par. 716.

The Supreme Court of Illinois has repeatedly stated that the prepayment requirement of these sections is mandatory. (People ex rel. Wisdom v. Chicago, Burlington & Quincy R.R. Co. (1965), 32 Ill.2d 434, 436, 206 N.E.2d 702, 704; People ex rel. Anderson v. Chicago & Eastern Illinois R.R. Co. (1948), 399 Ill. 520, 526, 78 N.E.2d 265, 268; People ex rel. Darr v. Alton R.R. Co. (1942), 380 Ill. 380, 384, 43 N.E.2d 964, 966; People ex rel. Sweitzer v. Orrington Co. (1935), 360 Ill. 289, 293, 195 N.E. 642, 644.)

In People ex rel. Darr v. Alton R.R. Co. (1942), 380 Ill. 380, 384, 43 N.E.2d 964, 966, the court construed the prepayment provision at issue here:

"The provisions of section 235 indicate that the legislature intended that no one should be permitted to object to a tax unless he had previously paid under protest at least seventy-five per cent

of the tax to which objection was made and that proof of such facts had to accompany the filing of the objection. This provision is mandatory and is a condition that a tax objector must meet before making objections, * * *."

In 1957, the words "at least seventy-five per cent" were deleted and "all of said tax installments due" substituted.

This court has on two recent occasions also so held. In re Application of County Treasurer (1972), 5 Ill. App.3d 694, 283 N.E.2d 905 (abstract opinion); In re Application of County ...


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