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People Ex Rel. Tomlin v. Ill. State Bar Ass'n

OPINION FILED OCTOBER 23, 1980.

THE PEOPLE EX REL. FRED H. TOMLIN, SANGAMON COUNTY TREASURER, APPLICANT AND COUNTERDEFENDANT-APPELLANT,

v.

THE ILLINOIS STATE BAR ASSOCIATION, RESPONDENT AND COUNTERPLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This appeal follows the trial court's determination that the headquarters real estate of the Association was exempt from real estate taxes for the year 1978 and from the injunction relief provided. As the judgment appealed was termed supplemental in nature, it is necessary to recite an extended course of proceedings.

On July 27, 1976, the Association filed a complaint for administrative review alleging that the local board of review had granted exempt status to the property as to taxes for the year 1975 but that on June 23, 1976, the Department of Local Government Affairs entered its order disapproving of the exemption. On August 12, 1976, the Department of Local Government Affairs, through the Attorney General, moved to dismiss the complaint for administrative review for the reason that the Administrative Review Act "does not apply to a decision of the Department of Local Government Affairs refusing to approve an exemption * * *." Subsequently, the complaint for administrative review was dismissed without prejudice upon the stipulation of the parties.

On October 1, 1976, the Association filed its objections to the application of the collector for judgment for 1975 taxes, alleging that it was exempt as a charitable organization from real estate taxes under the provisions of article IX, section 6, of the Illinois Constitution of 1970, and sections 19 and 19.7 of the Revenue Act of 1939 as amended (Ill. Rev. Stat. 1975, ch. 120, pars. 500, 500.7). The objections were also designated a counterclaim. Verified allegations stated that the Association was entirely a charitable organization and alleged 14 categories of educational and public service programs provided by the Association. Without separate designation as provided in section 33 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 33), the portion of the objections apparently intended as a counterclaim alleged a want of legal remedy and prayed an order enjoining the Collector from collecting the 1975 taxes at issue, or any future taxes levied upon the property. The answer of the Collector neither admitted nor denied the allegation of the charitable character of the Association but denied, without more, that the Association was entitled to relief.

On October 7, 1976, the Association filed a motion for temporary injunction, attaching a copy of its verified tax objections and counterclaim. On October 14, 1976, a preliminary injunction was entered upon stipulation of the parties. On September 22, 1977, the Association filed its motion for summary judgment praying relief as set forth in its verified objections and counterclaim supported by the affidavit of the Association's agent stating the charitable nature and program of the Association as alleged in the objections and counterclaim. The Collector filed a motion to strike the affidavit for summary judgment asserting that the action was not within the class of action to which summary judgment was applicable, that the supporting affidavit did not allege facts admissible in evidence, and that there was a genuine issue of material fact as to whether or not the property was exempt. Without specifying, the motion also alleged that there was a failure to exhaust an administrative remedy, and that there was an adequate remedy at law. The Collector filed no affidavit or verified pleading traversing or denying the allegations of the affidavit in support of summary judgment. On December 1, 1977, the trial court entered its judgment upon the motion for summary judgment as to the Association's objections to the application for judgment for taxes and the counterclaim for injunction with findings based upon the affidavit filed that the Association was a charitable organization within the statutes, that there was no genuine issue of material fact, that the Association was entitled to judgment as a matter of law, that the real estate was actually and exclusively used for charitable purposes, and that the "real estate is now and at all times mentioned herein has been exempt from taxation" under the constitutional and statutory provisions cited.

The order thereupon denied the Collector's motion to strike the Collector's affidavit for summary judgment and granted the motion for summary judgment filed by the Association. The judgment further ordered that an injunction issue permanently enjoining the Collector, his successors and agents from collecting or selling the property for nonpayment of taxes for the years 1975 and 1976, and for "the nonpayment of taxes for any subsequent years so long as said property remains exempt." The order continued to provide "that any and all taxes extended against said property be abated, that said property be no longer assessed for taxes." There was no appeal from this decree.

On March 29, 1979, the Association filed a verified petition for supplemental injunction alleging the fact of the judgment of December 1, 1977, and the accompanying writ which enjoined the collection of taxes for 1975 and subsequent taxes so long as the real estate remained exempt. That petition also alleged that the judgment and writ were attached to a "Certificate of Status of Exempt Property" filed by the Association's representative on January 18, 1978, in the office of the supervisor of assessments and the clerk of the board of review and that the said supervisor of assessments and the members of the board of review had actual notice of the judgment and the injunction. The petition further alleged that the board of review was in violation of said injunction in attempting to assess taxes for 1978, and that the Collector threatened to collect such taxes or offer the property for sale. Again, alleging the want of adequate legal remedy, the petition prayed that the court enter an order directing the Collector to comply with the writ of injunction which enjoined the Collector from attempting to collect taxes "hereafter sought to be levied until further order of this Court, adjudging said attempted assessment to be null and void, * * *."

On April 11, 1979, the Collector filed a motion to dismiss the petition for supplemental injunction, alleging that the Association's taxes for the years 1975 and 1976 had been refunded, that at the time of the decree on December 1, 1977, the taxes for the year 1978 had not been assessed or billed to the Association, that the trial court had no jurisdiction to enjoin the collection of taxes which had not been the subject of objections and pleadings, and that the injunction had no force and effect as to the 1978 taxes payable in 1979.

On August 21, 1979, the Collector filed a petition to vacate and to set aside the injunction order of December 1, 1977, alleging that the trial court lacked jurisdiction to permanently enjoin the assessment and collection of taxes for years subsequent to 1975 and 1976, and that such subsequent taxes were not before the court and that, as a matter of law, that order should be vacated.

The Collector's notice of appeal alleges error in the denial of the Collector's motion to dismiss the petition for supplemental injunction, in striking his petition to vacate and set aside the permanent injunction against collecting real estate taxes subsequent to the year 1976, and the denial of his motion for rehearing.

The judgment dated August 29, 1979, and termed a supplemental injunction, contained provisions not included in the notice of appeal. It ordered the Collector "to comply with said writ of injunction," and further decreed that "Said pretended assessment for 1978 and pretended real estate taxes for 1978 are hereby declared null and void."

The issues framed by the parties are whether the circuit court can properly enjoin the collection of taxes for future years and whether the trial court erred in denying his motion to vacate the injunction when an adequate remedy at law was available. While agreeing that the Department of Local Government Affairs had moved to dismiss the Association's initial complaint for administrative review by reason of the opinion in American College of Surgeons v. Korzen (1967), 36 Ill.2d 340, 224 N.E.2d 7, which had held that the matter of exemption of real estate was not the subject of administrative review, he urges, however, that the opinion in Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill.2d 51, 383 N.E.2d 958, had overruled American College of Surgeons and effectively eliminated injunctive relief as a remedy, and that the effect of the latter opinion was to require relief by administrative review of final orders of the Department concerning exemption.

The Association argues that the Collector concedes that the trial court had jurisdiction to enjoin the collection of the real estate taxes for the years 1975, 1976, and for as long as property of the Association remained exempt. It urges that it should not be required to relitigate the issue of exemption each year unless the substantive law pertaining to a qualified exemption use was changed or the use constituting an exempt status no longer prevailed. It also argues that the trial court's judgment order of August 29, 1979, found that the real estate remained exempt as a charitable use within the statute and that the "pretended assessment for 1978 and the pretended real estate taxes for 1978 are hereby declared to be null and void."

Section 19 of the Revenue Act of 1939 creates the status of exemption, and section 19.7 defines the requirements to qualify as a charitable institution. (Ill. Rev. Stat. 1977, ch. 120, pars. 500, 500.7.) Section 108(6) of the Act (Ill. Rev. Stat. 1977, ch. 120, par. 589(6)) provides that the board of review ...


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