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28 E. Jackson Enterprises, Inc. v. Rosewell

OPINION FILED DECEMBER 3, 1976.

28 EAST JACKSON ENTERPRISES, INC., APPELLANT,

v.

EDWARD J. ROSEWELL, COUNTY TREASURER, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Walter P. Dahl, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The plaintiff, 28 East Jackson Enterprises, Inc., is an Illinois corporation which acquired, in 1969, a long-term lease upon real estate located on Jackson Boulevard in the Loop in downtown Chicago. By a succession of actions filed in the United States District Court for the Northern District of Illinois, it has succeeded in evading entirely the payment of any real estate taxes upon the entire parcel of property, fee and leasehold, at least since 1972. The present action involves certain limited legal issues with respect to the statutory procedure governing the collection of those taxes and the scope of equitable relief under Illinois law which the plaintiff has selected for presentation to this court. Both in the complaint which the plaintiff filed in the circuit court of Cook County, and in the briefs and oral argument submitted in its behalf in this court, the plaintiff has sought to exclude the Illinois courts from effective consideration of any questions under the Constitution of the United States concerning the adequacy of the administrative and judicial procedures of the State of Illinois for the determination of the validity of the assessment of property for taxing purposes.

A summary of the allegations of the complaint and its description of the theory upon which the plaintiff bases its right to an injunction will be helpful, as will a brief description of the proceedings that have taken place in the Federal courts. The fundamental question before this court, however, concerns the authority of Illinois courts to enter judgments which concededly lack finality because the issues that may be determinative have been deliberately excluded from judicial consideration.

The present complaint was filed in the circuit of Cook County on January 5, 1976, against the defendant, Edward J. Rosewell, county treasurer and ex officio county collector of Cook County. It sought an injunction restraining the defendant from selling its property for nonpayment of its 1974 taxes. The circuit court refused to issue a preliminary injunction and subsequently granted the defendant's motion to dismiss the complaint. The plaintiff filed a notice of appeal to the appellate court, and the appeal was transferred here under Rule 302(b).

The complaint alleged that the plaintiff's property had been grossly overassessed because of the failure of the assessor to view the property or to resort to readily available data which would have shown that its value was substantially less than that at which it was assessed. It also alleged that the defendant collector knew of the improper assessment practices followed by the assessor, and that in issuing tax bills to the plaintiff based upon those assessments the defendant had aided and abetted the assessor in imposing excessive and discriminatory taxes upon the plaintiff. The action taken by the defendant was attacked as being a violation of article IX, section 4, and the due process and equal protection clauses contained in article 1, section 2, of the Constitution of Illinois.

The amount of real estate tax for which the plaintiff was billed in 1974 came to about $80,000, according to the complaint. The complaint also alleged that had the plaintiff's property and all other property in Cook County been properly assessed, the 1974 real estate tax charge against the plaintiff's property would have been decreased by about $50,000.

The plaintiff states that it lacked funds and was unable to borrow them in sufficient amount to pay the $80,000 in taxes for which it was billed, and that if the property in question were sold, the plaintiff's ground lease would be subject to forfeiture. Since the statutory procedure for protesting property taxes requires payment of the tax in full under protest as a condition to obtaining judicial review of the assessment (Ill. Rev. Stat. 1975, ch. 120, pars. 675, 716), the plaintiff contended that it had no adequate remedy at law and was therefore entitled to injunctive relief.

In its complaint the plaintiff represented that it was "prepared and willing to pay just taxes on its property" or to pay whatever amount the circuit court "determines to be just." No tender was made at the time of filing suit of that portion of the tax which the plaintiff concedes to be properly due, however. Neither in the complaint filed in the case before us, nor in any of the actions which are filed in the United States district court, did the plaintiff tender into court any amount whatsoever. Its position in this respect is described in these terms in its brief in this court:

"* * * Taxpayer does not argue that equity has the power to enjoin collection of, or judgment and order of sale with respect to the just and legal part of the tax. Rather, it is the unjust or illegal moiety which taxpayer insists may be enjoined when taxpayer lacks funds to follow the statutory remedy, and this illegal part may be enjoined without regard to whether all, some or none of the just moiety has been paid. * * *"

(In an earlier proceeding the United States district court issued its injunction restraining the collection of the tax without bond, saying:

"* * * This has not been requested by the defendants, and we will not require one on our own motion, because it appears from the evidence that plaintiff has ample assets to guarantee the payment of its 1972 taxes with interest if this is the final outcome of this lawsuit. * * *")

On the day that it denied the plaintiff's motion for a preliminary injunction, the circuit court granted a motion by the plaintiff for a temporary restraining order halting the defendant's sale of the plaintiff's property for a short period of time in order to give the plaintiff an opportunity to apply to the Federal district court for injunctive relief.

The plaintiff then sought and obtained from the United States District Court for the Northern District of Illinois a preliminary injunction which restrained the sale of the plaintiff's property "until the plaintiff has exhausted or abandoned its remedy in the State court." Although neither party has called it to our attention, an appeal was taken from that order to the court of appeals, which has stayed disposition of that appeal pending adjudication of the appeal which is now before us.

The plaintiff had previously instituted litigation in the Federal district court to enjoin the sale of its property for delinquent taxes for the years 1972 and 1973 on similar grounds. The complaints in those cases charged that the tax assessments against the plaintiff violated both the Illinois and the Federal constitutions, and the district court issued preliminary injunctions. The court's action was premised upon its view that the plaintiff lacked a "plain, speedy and efficient remedy" under the laws of Illinois, so that the Federal ...


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