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In Re Application of Rosewell

OPINION FILED JULY 6, 1983.

IN RE APPLICATION OF EDWARD J. ROSEWELL, COUNTY TREASURER, APPELLANT (HAROLD S. LEVIN ET AL., APPELLEES).


Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Joseph Schneider, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 30, 1983.

This appeal presents the question of the authority of the circuit court to withhold property that has been tax delinquent for five years or more from a sale under section 235a of the Revenue Act of 1939, which section is commonly known as the Scavenger Act (Ill. Rev. Stat. 1979, ch. 120, par. 716a). The circuit court of Cook County, upon the motion of the county treasurer and collector, Edward J. Rosewell, removed certain tax-delinquent parcels from a judgment and order of sale that had been applied for by him under the Scavenger Act. The ground for the motion was that civil actions for delinquent taxes had already been brought by the board of commissioners of Cook County against the owners of these parcels pursuant to section 275 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 756), and were pending. The appellate court, on an appeal filed by certain of the owners (the objectors), reversed the order removing the parcels from sale, holding that the Scavenger Act's provisions for sale of property that has been tax delinquent for five years are mandatory. (101 Ill. App.3d 498.) The collector petitioned for leave to appeal under Rule 315 and alternatively under Rule 317 on the ground that the appellate court's decision raised for the first time a constitutional question regarding the separation of powers. The collector's petition was allowed. 73 Ill.2d Rules 315, 317.

The collector filed the application for judgment and order of sale under the Scavenger Act on July 21, 1980. The application included all parcels upon which real estate taxes remained unpaid for each of five or more years. On August 8, 1980, the circuit court entered a judgment and order of sale.

On August 27, 1980, the collector, at the request of his legal counsel, the State's Attorney of Cook County, moved the court to amend its judgment so as to exclude from it the parcels whose owners had already been named in suits to collect delinquent real estate taxes. The objectors opposed the motion, but the court on September 24, 1980, amended its judgment and deleted the parcels. The court subsequently confirmed the sale of the remaining parcels. It denied objections to the confirmation of sale filed by the objectors, who argued that their parcels should have been included in the sale.

The Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) provides for proceedings against the delinquent taxpayer personally and also against the real property on which taxes are overdue. Section 27a (Ill. Rev. Stat. 1979, ch. 120, par. 508a) provides for personal liability for taxes, stating that an owner of real property on January 1 "shall be liable for the taxes of that year." Section 216 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 697), on the other hand, provides for an in rem claim. It declares that real property taxes shall be "a prior and first lien" on the property, "superior to all other liens and encumbrances," from January 1 in the year in which the taxes are levied until they are paid or until the property is sold under the Revenue Act.

Statutory means of enforcing these tax obligations have been enacted. Section 235 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 716) provides for an annual sale for the full amount of taxes owed on tracts on which taxes have not been paid in any one year. Tracts offered for sale under this but not sold are "forfeited" to the State. (Ill. Rev. Stat. 1979, ch. 120, par. 727.) (The statutory "forfeiture" does not, however, involve any claim by the State to title or possession. See 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 DePaul L. Rev. 1, 5 (1976).) Section 275 of the Revenue Act provides that the county may at any time bring a civil action in the name of the State against the property owner personally for taxes on property that has been "forfeited." (Ill. Rev. Stat. 1979, ch. 120, par. 756.) Too, should the property remain tax delinquent for five years or more, the Revenue Act provides for a so-called scavenger sale, which is involved here.

At the time of the sale here, the relevant section of the Scavenger Act provided:

"[T]he County Collector annually * * * 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, * * * 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. * * * The term delinquent also includes forfeitures. * * * The County Collector shall make application for judgment for sale as provided in this Section and the Court shall give judgment for such general taxes, special taxes, special assessments, interest, penalties and costs as are included in the advertisement and appear to be due thereon after allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of this Act, that such lands and lots be sold by the County Collector at public sale to the highest bidder for cash, notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered. Upon confirmation, a sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture. * * *

* * *

* * * The remedy herein provided is in addition to other remedies for the collection of delinquent taxes. This Section shall be liberally construed so that the deeds herein provided for shall convey merchantable title." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 716a.

The collector contends that the appellate court erred in holding that under the provisions of the Scavenger Act the court must enter an unalterable judgment for the sale of every parcel that has been declared tax delinquent for five years or more. The collector points out that, apart from a court's inherent judicial powers, a court, under the Act's explicit provisions, has authority to consider objections to a judgment and sale and to conduct hearings, and, of course, there is authority to enter appropriate orders. He says that for good cause, such as for fraud or irregularity, the trial court is not compelled to order a sale. Nor is a court, where prior suits against delinquent taxpayers to collect overdue taxes in full are pending, required to order a sale which predictably will bring only a small fraction of the tax indebtedness and may also require dismissal of the pending suits. The construction of the Scavenger Act that the objectors seek, the collector argues, would contradict the language and purpose of the statute and would sanction an unconstitutional interference by the legislature with the judiciary's authority to decide cases.

The objectors, on the other hand, stress the legislature's use of "shall" in providing that "the [c]court shall give judgment" for the taxes due and order a sale. They say that a mandatory construction is more in keeping with the apparent purpose of the Scavenger Act, to return tax-delinquent property to a status where it will generate revenue.

The collector is correct in his contention that under the legislative intendment the circuit court had discretionary authority to withhold the parcels of the objectors from the sale. It will not be necessary to consider the collector's additional contention that the appellate court's holding has presented a constitutional question. "It is the established rule of this court that a constitutional question will not be considered if the case can be decided without doing so. [Citations.]" In re Estate of Ersch (1963), 29 Ill.2d 572, 576-77.

The fundamental of statutory construction is to ascertain and then give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill.2d 469, 475; Town of City of Peoria v. O'Connor (1981), 85 Ill.2d 195, 203.) Regarding the construction of provisions in statutes as being mandatory or directory, Sutherland on Statutory Construction states:

"There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. The intention of the legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent. In the words of a court: `Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and, finally, whether or not there is a public or private right involved.'" 1A A. Sutherland, Statutory Construction sec. 25.03 (4th ed. 1972), quoting from Wilcox v. Billings (1968), 200 Kan. 654, 657, 438 P.2d 108, 111.

Sutherland also observes that "shall," except when expressing futurity, indicates a mandatory intent. The intent, however, it is stated, is not to be understood as mandatory if "the context otherwise indicates." (1A A. Sutherland, Statutory Construction sec. 25.04 (4th ed. 1972).) This court has recognized that while "shall" ordinarily suggests the mandatory, it may properly be construed in a directory sense to carry out what appears to be the intent of the legislature. In re Armour (1974), 59 Ill.2d 102, 104 (the word "shall" does not have an exclusive, fixed or inviolate meaning); Cooper v. Hinrichs (1957), 10 Ill.2d 269, 272 (the word "shall" can be construed as meaning "must" and "may" depending upon the legislative intent).

The language of the provision in the Scavenger Act for the entry of a judgment and order of sale shows a legislative intent that the court was not to be without discretion and without the capacity to act judiciously. It provides for the entry of a judgment "after [the court's] allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of [the Revenue] Act * * *." Section 235 provides that the court shall consider the defenses of those against whom judgment may be entered and in a summary manner "pronounce judgment as the right of the case may be." (Ill. Rev. Stat. 1979, ch. 120, par. 716.) The court was not to be required to enter judgment and an order of sale regardless of circumstances and regardless of whether the public interest would be served. The mandatory construction urged by the objectors is not reasonable.

The civil actions against the property owners personally to satisfy the indebtedness for taxes are premised upon a "forfeiture." As we have seen above, parcels offered at the annual sale but not sold are "forfeited" to the State, and section 275 of the Revenue Act authorizes a civil action against the owner of property that has been "forfeited." (Ill. Rev. Stat. 1979, ch. 120, par. 756.) On confirmation of the sale following a scavenger sale, all tax liens and "forfeitures" are extinguished, notwithstanding the fact that the sale has been for less than the full amount of back taxes and notwithstanding that the sale may have been for a nominal amount. As quoted earlier in this opinion the statute reads:

"[A] sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture." (Emphasis added.)

(Between 1967 and 1973 in Cook County, 6,000 items of property were sold at scavenger sales; the average bid was only $143. (26 DePaul L. Rev. 1, 8 (1976).)) As the collector points out, the objectors are urging that we view the Scavenger Act as operating to abort, in effect, the civil actions brought under section 275. The welcome consequence for the objectors of doing so would be that under the Scavenger Act the tax liens and forfeitures would be extinguished and the property of the objectors given a clean bill of tax health.

The objectors unreasonably ascribe to the legislature an intendment which would frustrate the public's efforts to collect the full amount of taxes due and would encourage tax delinquents to stall actions against them until the time for a scavenger sale of their property is reached; i.e., after five years of nonpayment of taxes. (The relationship between tax delinquency and urban blight is discussed in 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 DePaul L. Rev. 1 (1976).) The legislature, however, did not include in section 275 any limitation as to the time within which suit against the delinquent taxpayer must be brought. The civil action for the tax indebtedness may be brought "at any time." (Ill. Rev. Stat. 1979, ch. 120, par. 756.) Moreover, that the Scavenger Act was not intended to frustrate the actions ...


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