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People Ex Rel. Hawthorne v. Bartlow

OPINION FILED JANUARY 6, 1983.

THE PEOPLE EX REL. DONALD L. HAWTHORNE, COUNTY TREASURER AND EX OFFICIO COLLECTOR OF TAXES OF WOODFORD COUNTY, PLAINTIFF-APPELLEE,

v.

VERNON BARTLOW ET AL., OBJECTORS-APPELLANTS. — PEOPLE EX REL. DONALD L. HAWTHORNE, COUNTY TREASURER AND EX OFFICIO COLLECTOR OF TAXES OF WOODFORD COUNTY, PLAINTIFF-APPELLEE,

v.

RONALD J. BARTEL ET AL., OBJECTORS-APPELLANTS.



Appeal from the Circuit Court of Woodford County; the Hon. Richard Baner, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff, the county collector of Woodford County, Illinois, filed an application for a judgment for delinquent taxes in the circuit court of Woodford County. Defendants, certain Woodford County taxpayers, filed objections to the real estate taxes in response to the application alleging actual and constructive fraud in failing to equalize township assessments. The trial court overruled the objections. We affirm.

Defendants, taxpayers in Spring Bay and Worth Townships in Woodford County, paid their 1980 real estate taxes under protest pursuant to section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 675). The county collector filed his application for judgment for delinquent taxes in accord with section 225 of the Act (Ill. Rev. Stat. 1979, ch. 120, par. 706).

Pursuant to section 194 defendants filed their objections to the taxes and a motion to dismiss the objections was filed, but later withdrawn.

The trial court held a conference between the parties as provided in section 194(a) (Ill. Rev. Stat. 1979, ch. 120, par. 675(a)). However, no demand having been made for a hearing within 90 days, the hearing was set for May 1982.

The causes were consolidated and the objections were heard on stipulated facts, with the parties submitting lengthy trial briefs; the facts may be summarized as follows.

The Woodford County Board of Review (Board) determined the level of assessments applicable to the 1980 real estate taxes for the various townships below 33 1/3% of fair market value, resulting in a weighted urban value for the county of less than 33 1/3%. The Board was informed by the Department of Revenue (Department) that unless it acted to equalize, the Department would apply a county-wide multiplier.

The Board met in February 1981 and unanimously decided to accept the Department's multiplier because of insufficient sales in 12 of 17 townships to equalize according to section 108(a) of the Revenue Act of 1939. (Ill. Rev. Stat. 1979, ch. 120, par. 589.1.) It was stipulated that at the time of the Board's decision its members were aware of the provisions of section 108(a).

Section 108(a) requires boards to equalize to 33 1/3% in assessment districts by analyzing 25 property transfers in each district. If there are insufficient sales, a board of review is to use a random sample of sales and appraisals. The equalization process is to be completed by the date specified by law for adjournment of the Board with a report submitted to the Department. If a Board fails to make the report, or a proper equalization, the Department is authorized to supervise assessment "* * * to the end that all assessments of property be made relatively just and equal * * *." Ill. Rev. Stat. 1979, ch. 120, par. 589.1.

Under the authority granted in section 108(a) the Department applied the county-wide multiplier which raised the weighted urban value to 33 1/3%. However, this did not cure the disparity of assessments between townships and resulted in some townships being assessed at greater than 33 1/3%.

Taxpayers in Spring Bay and Worth Townships had their property assessed above 33 1/3%. This resulted in their paying more taxes than they would have paid had appropriate township multipliers been used.

The gist of defendants' position, in the trial court, and here, is that the Board had a duty to equalize; the Board failed to equalize; this failure resulted in excessive overvaluation, and amounted to constructive fraud.

The trial court found that there was a variance between the average township levels of assessment among the several townships but that this did not, in itself, demonstrate that any property, or group of properties, had been grossly overvalued as that term had been previously accepted as the sole basis for a finding of constructive fraud.

The court further found that there existed substantial practical difficulties in February 1981 in providing the proper basis for equalization. Moreover, the court held that in February 1981 there was no binding authority in existence which defined the term "shall" as used in section 108(a) except for dictum in Hamer v. Lehnhausen (1975), 60 Ill.2d 400, 328 N.E.2d 11, and ...


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