Appeal from the Circuit Court of Kane County; the Hon. John A.
Krause, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 10, 1982.
This case is a follow-up of Ciacco v. City of Elgin (1980), 85 Ill. App.3d 507. In that case, Ciacco, a resident of Elgin, sought an injunction against the city of Elgin to restrain the city from proceeding with the establishment of a special taxing district designated by city ordinance as "Elgin Special Service Area" and the spending of public monies pursuant to such ordinance, on the ground that the ordinance was void for failure to comply with the provisions of the enabling legislation authorizing the creation of such special taxing district. (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.) The complaint for injunction also attacked the ordinance creating the special taxing district as being arbitrary and irrational in its boundaries and because of its exemption of certain properties and its disregard of the difference in benefits that might be derived from the district as between one taxpayer and another.
We held in Ciacco v. City of Elgin (1980), 85 Ill. App.3d 507, that the Elgin ordinance was not void for procedural defects and that the legislation had been legally enacted. It is noted in that opinion that the contention had been raised that the ordinance creating the special taxing district was invalid because of certain exemptions from the tax for churches, charitable institutions and municipal buildings within the district. We rejected the contention that the ordinance itself was rendered invalid by this announced policy since the ordinance itself specified no such exemptions and deliberate gerrymandering of the district to include traditionally exempt properties such as was said to be questionable in Coryn v. City of Moline (1978), 71 Ill.2d 194, 202, had not been established as a fact by the record in Ciacco.
We said in Ciacco that while we agreed with the plaintiffs "* * * that the State exemption from general taxes for the religious and charitable institutions in question did not dispense them from the special service area tax, we think the neglect of the city taxing authorities to levy on these institutions would not have the effect of rendering the special service area ordinances invalid. In any event, however, we do not consider this contention in this appeal for the reason that it was not alleged in the complaint nor in the plaintiffs' brief that such exemptions constituted a denial of equal protection and due process." Ciacco v. City of Elgin (1980), 85 Ill. App.3d 507, 517.
The present appeal narrows the focus to the question of exemption of properties within a special service area and raises three issues: (1) whether those parcels of realty in a special service area which are exempt by statute from general real estate taxes are liable for a special service area tax; (2) whether there exists an administrative remedy for property owners being taxed in a special service area whereby they can complain to an administrative body that taxing officials have omitted or failed to subject certain parcels in the special service area to the tax; (3) whether, if such administrative remedy exists, it must first be exhausted before seeking judicial relief, even though the taxing officials have already refused to perform their official duty to tax such omitted parcels within the district.
The petitioners, taxpayers within the special service area, allege injury by reason of being assessed a disproportionate amount of tax due to the exemptions and seek a writ of mandamus to force the taxing authorities to list for taxation and assess a tax against the property heretofore omitted from the tax rolls as being exempt.
The trial judge, after a hearing, dismissed the petition for the writ of mandamus on the ground that the petitioners had not exhausted their administrative remedies. Inasmuch as the trial court dismissed the petition for failure to exhaust administrative remedies, we will comment on that issue first. We believe the trial court erred in resting its decision on the petitioners' failure to exhaust their administrative remedies, specifically referring to the failure to first file a complaint. This refers to section 108(4) of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 589(4)), which states:
"On complaint in writing that any property described in such complaint is incorrectly assessed, the board shall review the assessment, and correct it, as shall appear to be just, but in no case shall such property be assessed at a higher percentage of fair cash value than the assessed valuation of other property in the assessment district prior to equalization by the board or the Department. * * *."
The petitioners here contend that the quoted reference to filing a complaint — which appears to be the basis of the trial court's conclusion that an administrative remedy existed which had not been exhausted by the petitioners — is irrelevant under the circumstances of this case. Petitioners contend that the quoted language has nothing to do with a situation in which the authorities deliberately omit the property from the assessment rolls. In the case before us, petitioners point out, there was not either an excessive nor an inadequate assessment, either of which could be reviewed by the board of review and corrected. Rather, there was no assessment at all; therefore, the words of section 108(4) "[o]n complaint in writing that any property described in such complaint is incorrectly assessed * * *" do not apply to the situation which obtains in this case — there is nothing for the phrase to operate on because the property has not been assessed at all. As the appellants' brief says, "[t]hat statutory provision was meant to correct the wrong number and not to supply a number." Since there never has been an assessment of the property in question (due to the exemption granted it), the petitioners contend the situation is not covered by section 108(4). Thus, the petitioners contend, there is no administrative remedy available to them and therefore mandamus is the proper remedy. Petitioners cite the leading case of People ex rel. Jones v. Webb (1912), 256 Ill. 364, which held that mandamus was the proper remedy to compel the board of review to perform its duty to list and assess omitted property. In that case, a writ of mandamus was sought by a taxpayer to compel the board of review to list certain property for taxation which had not been assessed for the years 1907 through 1910. The defendants demurred to the petition and the trial court sustained the demurrer. Upon appeal to the supreme court, that court reversed the trial court and overruled the demurrer to the petition, saying:
"If the allegations in this petition are true, — and for the purposes of the decision of the questions now before us they are admitted to be true, — we are at a loss to find any possible excuse for the refusal of appellees to proceed to an investigation and to determine whether the facts stated in the petition are true, and if they be found to be true, in whole or in part, to assess the persons named in the petition upon the fair cash value of their property." 256 Ill. 364, 377.)
This decision was reaffirmed in People ex rel. Village of Park Forest v. Cullerton (1958), 13 Ill.2d 575, as to the use of mandamus against the taxing authorities.
The defendants point out that in the Cullerton case the court said:
"We have held that mandamus is the proper remedy to enforce the performance of statutory duties with respect to the assessment and collection of taxes, where such omission has been specifically directed to the attention of the authorities and a demand for affirmative action has been ignored." (13 Ill.2d 575, 580.)
From this statement the defendants argue that the supreme court found that the petitioners had exhausted their administrative remedies and by inference that the court had held that a petition for mandamus to compel the taxing authorities to list and assess deliberately omitted property would not be issued unless the petitioners had exhausted their administrative remedies. Moreover, they argue, based on this wording in the Cullerton opinion, and several other opinions where mention was made of previous attempts to compel the authorities to act, that the reference to such ...