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Andrews v. Foxworthy





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Carl Lund, Judge, presiding. MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1978.

Four hundred and eight taxpayers in Vermilion County filed a petition for a refund of part of their 1972 real estate taxes, alleging that part of the tax was invalid since the supervisor of assessments had failed to publish increases in assessments made in a nonquadrennial year by July 10, 1972, as required by section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 584). The petition alleged that the taxes had been paid in full, and tax receipts stamped "Paid Under Protest" were attached to the petition. The trial judge allowed the plaintiffs to amend the petition to conform with the requirements of section 194 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 675), and the case proceeded as a hearing on tax objections. On stipulated facts, the trial court held that the failure to publish the assessment changes before July 10 in 1972, a nonquadrennial year, rendered the assessment increases void. The appellate court affirmed (43 Ill. App.3d 438), with one justice dissenting, and we granted leave to appeal.

The primary issue in this court is whether the statutory publication date for increased assessments in a nonquadrennial year is merely directory or is mandatory, such that tardy publication invalidates the increase. The relevant portion of section 103 of the Revenue Act, pertaining to counties of less than 2,000,000 in population, provides:

"In years other than years of a quadrennial assessment of real property, the * * * supervisor of assessments * * * shall publish the assessment of personal property in full and a list of real estate for which assessments have been added or changed since the last preceding assessment, together with the amounts of the assessments on such real estate. Such publication shall be made on or before July 10, of that year in counties with less than 150,000 inhabitants * * *, and shall be printed in some public newspaper or newspapers published in the county; or shall be mailed to every person in that township * * *: Provided, that in every county containing less than 2,000,000 inhabitants, in addition to the publication of the list of assessments of real property * * *, as provided above, a notice shall be mailed by the * * * supervisor of assessments * * * to each taxpayer at his address * * *. In every township or assessment district in which there is published one or more newspapers of general circulation, the list of such township shall be published in one of the newspapers." (Emphasis added.) Ill. Rev. Stat. 1971, ch. 120, par. 584.

The facts in this cause were stipulated in the trial court. The supervisor of assessments in Vermilion County increased certain real property assessments in 1972, a nonquadrennial year pursuant to section 46 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 527). He failed to publish the increases in a newspaper by July 10, 1972, but did publish in proper form on or before October 28, 1972. In addition, after July 10, 1972, but sometime prior to publication, the supervisor of assessments also mailed a notice to the taxpayers advising them that their assessments had been increased and that they had 10 days from the date of publication in the newspaper to file a written complaint with the board of review. The parties also stipulated that the board of review had lawfully remained in session until January 6, 1973. The trial court concluded that the defendant's failure to comply with the statutory publication date rendered the assessment increases void. Defendant filed a motion to reconsider and attempted to introduce new evidence that 31 of the plaintiffs had, in fact, filed complaints with the board of review. The trial court denied admission of the new evidence and the motion to reconsider, but did allow two petitions to intervene by school districts.

The appellate court affirmed the trial court's refund order and, relying on People v. Jennings (1954), 3 Ill.2d 125, held that the statutory publication requirements must be strictly followed. Jennings involved a total failure to publish assessments of personal property as required by statute. In that case, this court held the tax void, noting that the publication requirement was mandatory in view of its nature and purpose.

The defendant attempts to distinguish Jennings on the grounds that Jennings involved a complete failure to publish personal property assessments, while the instant case only deals with a late publication of real property assessment increases. Defendant argues that since the taxpayers here had actual mailed notice in addition to publication, even though both were late, Jennings is inapplicable. Defendant's principal contention appears to be that the statutory publication date is directory, not mandatory, and that failure to strictly comply with the specified date does not invalidate the increases.

Relatively few cases have considered the violation of publication requirements under section 103. After examining these cases and considering the nature of the statute, we cannot agree with the defendant that Jennings is distinguishable from the case at bar, nor do we agree that the date of publication is merely directory. While the factual situation in Jennings is not identical to the case at bar, the rationale of that decision is nonetheless applicable to the present case. Furthermore, an examination of the language and purpose of the publication provision clearly denotes its mandatory character. As a mandatory statute, strict compliance is required. We note at this time that the taxpayers do not allege a violation of due process; they contend that the defendant has violated the duty imposed on him by statute. Hence, those cases involving questions of notice and hearing pursuant to due process requirements will only be considered peripherally.

In People v. Jennings (1954), 3 Ill.2d 125, the State sued the defendant to recover personal property taxes for 1951. However, the list of personal property assessments for 1951 had not been published pursuant to section 103 of the Revenue Act. In Jennings this court quoted from French v. Edwards (1872), 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702, 703, which sets forth the general rule governing whether the provisions of a statute are to be mandatory or directory, as follows:

"`There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.'" 3 Ill.2d 125, 127.

In Jennings the court also quoted from Lyon v. Alley (1889), 130 U.S. 177, 185, 32 L.Ed. 899, 902, 9 S.Ct. 480, 483, as follows:

"`The provisions of statutes as to the form and mode of assessments, as to tax lists, and the place where the tax lists are to be deposited, are, according to the highest authority, designed for the benefit of the taxpayers and the ...

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