APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
SCHNEIDER, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
This appeal is a consolidation of two separate actions involving the construction of section 235a of the Revenue Act (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 716a), commonly referred to as the Scavenger Act. At issue is whether the Scavenger Act's provision for the publication by the county collector of "an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent" is directory or mandatory, such that the county collector could choose to omit from the advertisement certain properties because actions for the unpaid taxes were pending against the owners of those properties.
For reasons hereinafter set forth, we reverse the judgment of the circuit court of Cook County.
Because the nature of the question presented for review does not require an elaborate recitation of the factual bases for each action herein consolidated, an abbreviated version will suffice.
Approximately 100 parcels of property upon which the general taxes were delinquent for the year 1977 and for at least four years prior thereto were omitted by the county collector from his advertisement giving notice of the intended application for judgment for sale pursuant to the Scavenger Act. Plaintiffs-appellants Julia Larson and others filed a petition for a rule to show cause why the county collector "should not be held to comply with" the provisions of the Scavenger Act and include in his advertisement those 100 parcels. The trial court dismissed the petition with prejudice finding that "[t]he proper construction would be to view [section 235a] as directory rather than mandatory, and permit [the county collector] to use his judgment in utilizing any appropriate method of dealing with tax delinquent property."
Objector-appellant, Northern Illinois Industrial Properties, Inc., filed an objection to the county collector's application for judgment and order of sale requesting that the trial court dismiss the application or modify the application to include the omitted 100 parcels. The trial court held "that the duties imposed on the County Collector under the provisions of the Scavenger Act, Section 235a, as amended, of the Revenue Act, are not mandatory but discretionary" and accordingly overruled the objection.
The Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 482 et seq.) provides two basic methods to enforce the payment of taxes levied upon real property: an in rem proceeding against the property; and an in personam proceeding against the owner. The in rem proceeding encompasses two different and distinct statutory actions. The first type of in rem proceeding commonly referred to as the annual tax sale, is authorized by section 225 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 706). Such a sale for the full amount of delinquent taxes may occur "[a]t any time after the first day of September next after all of such delinquent taxes on lands and lots shall become due in any year, * * *." The second type of in rem proceeding is an action instituted pursuant to section 235a of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 716a) which is commonly referred to as the Scavenger Act. Section 235a, unlike section 225, requires that tax delinquency continue for a period of five years or more. Property subject to the Scavenger Act is sold to the highest bidder, even though the bid may be less than the full amount of the unpaid taxes. Section 275 of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 756) authorizes an action by the county board to recover from the owner of tax delinquent property which has been forfeited to the State *fn1 the full amount of taxes due.
Normally the entire tax liability for real estate would be met through a judgment and sale of the property pursuant to section 225. (People v. Chicago Title & Trust Co. (1979), 75 Ill.2d 479, 486, 398 N.E.2d 540.) However, in People v. Chicago Title & Trust Co., our supreme court at pages 486-87 acknowledged the limitations of the tax sale.
"[These cases] have arisen however, because, for an increasing number of inner-city parcels, the marketable price is well below the outstanding tax bills. (See J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 De Paul L. Rev. 1 (1976).) There simply are no buyers willing to pay taxes in order to obtain the property. As a consequence, the property has been forfeited to the State and the tax bills remain unpaid."
The Revenue act apparently anticipates that some property will not be purchased at the annual tax sale and therefore will be forfeited to the State. As a result supplementary statutory procedures such as the action for unpaid taxes and the scavenger sale were enacted to serve as a "back stop" for property which was not purchased at the annual tax sale.
Section 275 which authorizes the action for unpaid taxes provides in pertinent part:
"The county board may, at any time, institute suit in a civil action in the name of the People of the State of Illinois in the circuit court for the whole amount due for taxes and special assessments on forfeited property; * * *." (Emphasis supplied.) *fn2
Section 235a, the Scavenger Act, provides in pertinent part:
"At the same time the County Collector annually publishes an advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act, he shall in counties with a population of 2,000,000 or more, and shall in other counties if the county board by resolution so orders, also publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or a part of the general taxes for each of 5 or more years are delinquent as of the date of the advertisement. In no event, however, may there be more than 2 consecutive years without a sale under this Section. The term delinquent also includes forfeitures. The County Collector shall include in the advertisement and in the application for judgment for sale under this Section the total amount of all general taxes upon those tracts of land or lots which are delinquent as of the date of the advertisement. However, in lieu of a single annual advertisement and application for judgment for sale under this Section the County Collector may, from time to time, beginning on the date of the publication of the advertisement giving notice of the intended application for judgment for sale of lands and lots for unpaid general taxes as provided in Section 225 of this Act and prior to the first day of August of the next year, publish separate advertisements and make separate applications, in each which advertisement and application shall be included the ...