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Neubert v. Foxworthy

OPINION FILED APRIL 25, 1979.

NEUBERT ET AL., PLAINTIFFS-APPELLANTS,

v.

CHARLES P. FOXWORTHY, EX-OFFICIO COUNTY COLLECTOR OF VERMILION COUNTY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Vermilion County; the Hon. CARL A. LUND, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 14, 1979.

The plaintiffs are taxpayers who brought suit in the circuit court of Vermilion County against the defendant, Charles P. Foxworthy, as ex-officio county collector, seeking refunds for taxes paid by them for the year 1972 on certain real property in the county. Following a hearing, the circuit court found in favor of the plaintiffs as to all but a few of the tracts and a judgment ordering refunds was entered on July 26, 1974. On appeal by the defendant, this court affirmed in Andrews v. Foxworthy (1976), 43 Ill. App.3d 438, 357 N.E.2d 678. The supreme court subsequently affirmed in Andrews v. Foxworthy (1978), 71 Ill.2d 13, 373 N.E.2d 1332. Following the supreme court decision, the refunds were made in full. On April 14, 1978, plaintiffs filed a petition seeking interest from the date the circuit court entered judgment on July 26, 1974, until the dates the refunds were actually paid. On May 17, 1978, the circuit court entered an order denying plaintiffs' motion seeking assessment of interest. On appeal, plaintiffs contend that interest may be assessed on a judgment of refund for real estate taxes from the date of judgment until the date of payment.

Plaintiffs rely upon the broad language of section 3 of the Interest Act (Ill. Rev. Stat. 1973, ch. 74, par. 3). At the time the judgment ordering refunds was entered, section 3 provided in part:

"Judgments recovered before any court or magistrate shall draw interest at the rate of 6% per annum from the date of the same until satisfied. When judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment." Ill. Rev. Stat. 1973, ch. 74, par. 3.

During the regular session of the 80th General Assembly, two acts were passed amending section 3 of the Act. Public Act 80-722, effective October 1, 1977, amended section 3 to read in part as follows:

"Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the same until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, or a school district or community college district." (Ill. Rev. Stat. 1977, ch. 74, par. 3.)

Public Act 80-914, also effective October 1, 1977, amended section 3 of the Act to read in part as follows:

"Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied, except that judgments recovered against governmental entities shall draw interest at the rate of 6% per annum." Ill. Rev. Stat. 1977, ch. 74, par. 3.

Section 6 of the statutory construction act (Ill. Rev. Stat. 1977, ch. 131, par. 4.2) provides that where two or more acts relating to the same subject matter are enacted by the same General Assembly, they shall be construed together so as to give full effect to each act unless an irreconcilable conflict exists, in which case the last act acted upon becomes controlling. Both amending acts of 1977 are significant here in that they expressly refer to judgments against units of local government for the purpose of providing such entities a lower rate of interest. Plaintiff argues that it may be inferred that the broad language of section 3 of the Interest Act in effect at the time the circuit court entered judgment in the instant case included all judgments against local units of government.

In support of their position, plaintiffs cite State of Texas v. Tennessee Gas Transmission Co. (Tex. Civ. App. 1956), 289 S.W.2d 309. In Tennessee Gas, the appellee gas company, pursuant to a resolution of the legislature, sued the State of Texas to recover license taxes paid without protest together with interest on the amount of taxes paid from the date of payment. The statute under which the tax had been collected was earlier declared unconstitutional. The trial court entered judgment refunding the taxes paid and awarded the appellee not only interest from the date taxes were paid until the date of judgment, but also interest from the date of judgment until satisfied at the rate of 6% per annum. The appellate court reversed the award of interest from the date the payments were made to the date of judgment. However, the appellate court further stated:

"[The statute] provides that all judgments of the courts> of this State shall bear interest from date at the rate of six percent per annum. This statute contains no exceptions and the judgment rendered in this case was properly made to bear interest from its date." 289 S.W.2d 309, 311-12.

Six months after the decision in Tennessee Gas, the same Texas appellate court decided Fulgham v. Southland Cotton Oil Co. (Tex. Civ. App. 1956), 296 S.W.2d 332. In Fulgham, the appellee oil company sued to recover franchise taxes paid under protest and 6 percent interest thereon from the date of such payment. The trial court entered judgment allowing 6 percent interest from the date the oil company paid the disputed tax under protest. The appellate court distinguished Tennessee Gas by stating:

"In that case the taxes were not paid under protest and the suit was not brought under the authority of nor in accordance with the provisions of the protest statute, 7057b, supra. There we allowed no recovery of interest until judgment was rendered and thereafter interest at 6%. ...


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