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06/29/87 In Re Application of Edward J. Rosewell Et Al. (La Salle

June 29, 1987



National Bank, as Trustee, Appellee, v.

Cook County Treasurer, Appellant)

512 N.E.2d 1256, 117 Ill. 2d 479, 111 Ill. Dec. 619 1987.IL.908

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 GOLDENHERSH took no part in the consideration or decision of this case.


This case comes before the court on appeal from the Cook County circuit court's default judgment of sale of certain properties held in trust by the La Salle National Bank for the benefit of Barry Dunne, the taxpayer. That judgment of sale was entered pursuant to section 235a of the Revenue Act (Ill. Rev. Stat. 1983, ch. 120, par. 716a), commonly known as the Scavenger Act. According to the taxpayer, the circuit court was not properly vested with jurisdiction to enter that judgment because of the county treasurer's failure, acting ex officio as county collector, to mail notice of the Scavenger Act proceeding to the taxpayer in compliance with the Revenue Act (Ill. Rev. Stat. 1983, ch. 120, par. 711) and the dictates of due process (U.S. Const., amend. XIV). The taxpayer petitioned the circuit court to vacate its judgment

and order of sale of the taxpayer's property. The circuit court refused, and on appeal the appellate court reversed, concluding that notice by mail was required by both the statute and the Constitution. (139 Ill. App. 3d 482.) We allowed the county collector's petition for leave to appeal (103 Ill. 2d R. 315(a)) on his representation that Cook County scavenger sales have been put "on hold" pending a final resolution of the notice by mail issue. Since there was nothing that prevented the county collector from sending notice of scavenger sale by registered or certified mail, the county collector could have given such notice and conducted a scavenger sale without waiting upon this court's decision as to whether such a notice was required by statute or by constitutional provisions.

In 1980 the Cook County assessor mailed notice to Barry's Metal, Ltd., the assessee of record for the parcels at issue, that all of the property had not been assessed for the years 1965 through 1978. The notice stated that a hearing on the back taxes for those years would be held, giving the assessee an opportunity to contest those back taxes. Although Barry's Metal, Ltd., received that notice, the record does not indicate whether it attended the hearing. A bill for 1965-78 back taxes was subsequently issued. Payment on that bill was not made, however, and on the collector's application a judgment and order of sale was entered against the property in 1981. It appears that the tax certificate for the properties was not sold during the 1981 annual sale, for the collector published notice in 1983 stating his intention to apply for judgment and order of sale pursuant to the Scavenger Act. Judgment and an order of sale were entered on May 6, 1983.

A month later, the taxpayer filed a petition to vacate the court's judgment and order of May 6, alleging, inter alia, that the court's jurisdiction was not properly invoked because there had been no notice by mail of the proceeding. As noted above, that petition was denied. Thereafter, the taxpayer sought a temporary restraining order against the sale of his properties, but that, too, was denied. Eventually, the taxpayer paid the amount of tax sought by the county, although the county had refused to accept the taxpayer's accompanying protest because it was untimely. It appears that the amount settled on by the county and taxpayer was substantially less than the sum of the judgments entered against the properties on May 6; accordingly, on August 1, 1983, the circuit court sua sponte amended its judgment of May 6 to conform with the amount paid and accepted by the collector.

It is not apparent what relief either party to this litigation is entitled to at this late date. Doubtless, the scavenger sale, which was ordered to begin on May 9, 1983, has since been completed, and there is nothing in the record to suggest that these properties were sold or even offered. Section 233 (Ill. Rev. Stat. 1983, ch. 120, par. 714) allows the adjudicated delinquency to be paid at any time prior to sale of that property, as did the order here appealed from. Sale of the property notwithstanding payment of the delinquency would be a useless act, as redemption would not occur and no tax deed could issue because the tax had been paid (see Ill. Rev. Stat. 1983, ch. 120, par. 751 (right to challenge tax deed on ground tax was paid)). Insofar as the taxpayer appeals from the circuit court's order of sale, therefore, the appeal is plainly moot since the May 6, 1983, order of sale no longer applies to these properties. To the extent that the taxpayer contests the propriety of the circuit court's judgment against the properties, the appeal is also moot: the judgment having been paid in the scavenger sale proceeding, there is no longer any delinquency for the taxpayer to challenge. (See Ill. Rev. Stat. 1983, ch. 120, pars. 675, 716 (challenge is made by timely payment under protest).) In Massell v. Daley (1949), 404 Ill. 479, an injunction was sought barring imposition of the Retailer's Occupation Tax Act against dinner theatres and night clubs, and the State refunded tax payments in accordance with the trial court's decree. When the State then appealed the rulings, this court dismissed the appeal, observing "that where a judgment has been voluntarily paid the question becomes moot." 404 Ill. 2d 479, 483.

Given the court's inability to award any relief or decide any questions which will affect the parties' rights as against the other on any issue involved in the Scavenger Act proceedings appealed from, the case is moot under our law. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76-77; First National Bank v. Kusper (1983), 98 Ill. 2d 226, 233-35; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235.) That determination does not, however, necessitate dismissal of the appeal. The parties have briefed the case and addressed themselves to issues which now present a matter of urgent importance. The court is aware that a staggering amount of property within Cook County sits idle, under the weight of delinquent taxes, and that a scavenger sale would help return many of those properties to the tax rolls. (See In re Application of Rosewell (1983), 97 Ill. 2d 434, 442-43.) Apparently apprehensive that a sale conducted with improper notice might prejudice developers and community groups bidding for those tax delinquent properties, and throw a cloud over hundreds or perhaps thousands of land titles, the county assessor has not held a scavenger sale since 1983 (notwithstanding the statutory mandate). The public importance in renewing the scavenger sale process and the county officials' apparent need for definitive resolution and guidance bring this case within a narrow exception to the mootness doctrine, which generally counsels against the pronouncement of purely advisory legal opinions by this court. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 11.) Although the parties have argued a number of questions, such as whether the taxpayer waived any right to notice by mail or whether such notice is jurisdictional, only two questions merit review given the absence of an actual controversy: whether the Scavenger Act requires notice by mail and whether due process demands such notice.

The Scavenger Act requires the county collector to "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." Section 225 of the Revenue Act (Ill. Rev. Stat. 1983, ch. 120, par. 706), which provides for the annual sale of tax delinquent properties, states in part that "the Collector shall publish an advertisement, giving notice of the intended application for judgment for sale of such delinquent lands and lots." The parties agree that assessees of lands and lots subject to annual sale must be sent mailed notice pursuant to section 230 (Ill. Rev. Stat. 1983, ch. 120, par. 711), but the taxpayer says that because the Scavenger Act requires that the "advertisement and application" for scavenger sales "shall be in the manner prescribed by the provisions of ...

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