Loewenthal v. People ex rel. Raymond

Mr. Justice Boggs delivered the opinion of the court: This was an application by the appellee county collector of Cook county; to the county court of said county, for a judgment and order of sale against lands and lots delinquent for the taxes levied thereon for the year 1899. The delinquent list contained four lots in the city of Chicago of which the appellant was the owner. The appellant appeared and filed objections to the rendition of judgment against each and all of the said lots. The objections were heard upon a stipulation setting forth the testimony of the witnesses, and also certain facts; were overruled, and an order and judgmént for the sale of tie lots granted as prayed by the collector. This is an appeal to reverse the judgment and order of sale. It appeared from the stipulation the appellant was the owner of the lots on the first day of April, 1899; that their total fair cash value did not then exceed the sum of $153,000; that the valuation of the lots as returned by the board of assessors to the board of review was $206,575; that George C. Fry, a duly authorized agent of the appellant, “at various times called at the office of the assessors for the purpose of ascertaining the value at which said property had been assessed; that as soon as he was able to learn from said board of assessors the valuation fixed by said board of assessors, said Fry called at the office of the board of review and filed a complaint, in writing, objecting to the amount at which said property had been assessed; that said complaint was filed during the latter part of August, 1899, and not on or before the first Monday in August, but that said complaint was filed as soon as said Fry, representing the owner of said property, and as soon as B. Loewenthal, the owner of said property, could learn the amount at which said property had been assessed, and that the reason the said written complaint was not filed with the board of review on or before the first Monday in August, was because it was impossible, on or before the first day of August, to learn the value at which said property had been assessed; that when he went to the office of said board of review to make said complaint he was unable to see any member of the board of review in person, but was referred to a clerk standing at a desk in the front part of the office; that when he handed the complaint to said clerk, said clerk informed said Fry that the said objection would be called up before the board of review in its due course and would be considered by the board of review, and that he, Fry, as agent of said objector, would receive due notice by mail when such objection would be taken up for-hearing by said board of review; that he did not, nor did the said B. Loewenthal, nor any person acting on his behalf, receive any notice of any hearing of said objection before said board of review, but that said Fry on several subsequent occasions called at the office of said board of review and inquired of the clerks placed in charge of said office by said board of review as to when said objection would come up for hearing, and was each time informed that said objection had not yet been reached in its order but it would be taken up in due course, and that prior to said hearing said Fry and the said objector would receive notice in writing of the time of said hearing; that the said Fry and the said B. Loewenthal depended upon the statements made by said clerk in the office of the board of review and expected such notice of a hearing upon said objections, but that no such notice was ever received by said Fry or by said Loewenthal, and while said Fry and said Loewenthal were still waiting in expectation of receiving notice of such hearing, the tax books were closed and delivered by the board of review to the county clerk; that no hearing was ever given by said board of review upon the objections filed against the assessment on said property, so far as is known to the said Loewenthal or said Fry, or any person for said Loewenthal or said Fry.” The statute secures to every person whose property is assessed for taxes the right to a hearing before the board of review on a complaint in writing that the property has been assessed too high. The board are required to review the assessment upon such complaint and correct the same as shall appear to be just. This provision is of vital importance to the tax-payer, and it is against every principle of right and justice that he should be deprived of all opportunity to contest the fairness of the assessment. The constitution authorized the General Assembly to provide such revenue as shall be needful by levying a tax by valuation, so that every person and cor-' poration shall pay a tax in proportion to the value of his or her property, and the provisions of the statute are designed to accomplish that purpose. The requirement of the statute for a hearing of the complaint is mandatory, and no person ought to be required to pay a tax without a compliance with the law which entitles him to such hearing. Section 1 of article 9 of the constitution of 1870, except so much thereof as relates to the imposition of taxes upon certain specified occupations, is as follows: “The General Assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property—such valuation to be ascertained by some person or persons, to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise.” In obedience to this constitutional requirement that the value of property assessable for taxation shall be ascertained by some person or persons elected or appointed in such manner as the General Assembly shall elect for that purpose, and not by other persons or other manner, the General Assembly, by an act entitled “An act for the assessment of property,” etc., approved February 25, 1898, (Hurd’s Stat. 1899, p. 1444,) provided that the value of real property situate in Cook county, as is the property in question, Should be ascertained by a board ■of assessors, consisting of five persons, to be elected in the manner as prescribed in section 3 of the act. The act further provided the board of assessors shall have authority to designate and appoint deputy assessors to perform such duties connected with the assessment of property as may be assigned to them. Section 32 of the •act authorizes the selection of three persons, by election, to constitute a board of review, and section 35 empowers the persons composing such board of review, among other duties, on complaint that any property has been assessed too high by the board of assessors, to ascertain the true assessable value of such property and approve or correct ■ the assessment of such property as made- by the board of assessors. Under the said provision of the constitution herein- • before referred to, and of the said act of February 25, 1898, made in pursuance thereof, the valuation of property for the purposes of taxation in said city of Chicago and county of Cook is committed to the persons composing said board of assessors, in the first instance, and the persons composing the board of review, when sitting in review of the action of said board of assessors. The power does not reside in the courts to revise the assessments made by these bodies, on the ground, alone, they fell into an error of judgment in estimating the value of the property. This principle was declared in People ex rel. v. Lots in Ashley, 122 Ill. 297, and many decisions of this court declaring or illustrating it are there collected. In later cases, notably Keokuk Bridge Co. v. People, 145 Ill. 596, Spring Valley Coal Co. v. People, 157 id. 543, Clement v. People, 177 id. 144, and Keokuk Bridge Co. v. People, 161 id. 514, the doctrine has been re-affirmed. In Clement v. People, supra, 'we said: “We have repeatedly held that the courts have no power to revise an assessment merely because of a difference of opinion as to the reasonableness of the valuation placed upon the property. On an application for judgment against lands for delinquent taxes it may. be objected that the tax is not authorized by law, or is assessed upon property not subject to taxation, or that the property has been fraudulently assessed at too high a rate.” The contention, here, on the part of the appellant is, the county court of Cook county became vested with authority and jurisdiction to ascertain the true valuation of his property for the purposes of taxation, for the reason that the board of review had failed or refused to review the assessment of his property made by the board of assessors, as required of them by the provisions of the second paragraph of section 35 of the said act of February 25, 1898, though he had complained, in writing, to said board of review that the estimate of the value of his said property made by the board of assessors was too high. Conceding that the board of review refused to perform a plain duty imposed upon it by law, to ascertain the fair cash value of his lots and review and correct the estimate of such value made by the board of assessors, could the appellant lawfully take no further steps to procure an estimate to be made by the tribunal empowered to perform such duty, refuse to pay the taxes levied on the estimated values as made by the board of assessors and standing approved by the non-action of the board of review, and demand that the county court, when asked to enter judgment against his lots as delinquent for such taxes, should take upon itself the duty of estimating the true fair cash value of his property? We think not. His duty was to employ the ample remedy provided by the law to compel the board of review to discharge the duties imposed upon them by law, and ascertain the true fair cash value of his property and revise the action of the board of assessors accordingly. The board of review, and not the courts, are invested with the power to estimate the value of assessable property, and he should have sought the aid. of the courts, not to estimate the value of his property, but to command the board of review to perform that duty. In the case of Beidler v. Kochersperger, 171 Ill. 563, which was an appeal from the decree of the circuit court dismissing, for want of equity, a bill in chancery which sought to enjoin the collection of a tax, because, as alleged, the property had been over-assessed, and that appellant filed his complaint with the board of supervisors sitting as a board of review, and while said complaint was pending before a committee of that board to whom it had been referred the board adopted a general resolution confirming the assessment returned by the assessors, without notice to appellant or an opportunity to be heard before the board and without considering his complaint, and thus disposed of and completed its work as a board of review, we said (p. 566): “The statute imposed upon the board of supervisors, as an absolute duty-, to entertain, consider and determine the application of appellant for relief with respect of the alleged over-valuation of his property. Courts of law possessed ample power to enforce the performance of this duty by the board. Appellant could have applied to such courts for a writ of mandamus to compel the board to perform the duty so charged upon it by the statute,—that is, to hear, consider and decide as to the alleged grievance. * * * It is the policy of our law the whole matter of the valuation of property for taxation shall be committed to the control of the assessor, the board of review and the board of supervisors of the respective counties. (People ex rel. v. Lots in Ashley, 122 Ill. 297.) It was therefore incumbent f upon the appellant to have availed himself of the ample and adequate remedy of the writ of mandamus to secure action on the part of the board of supervisors, in order that his grievances, if any he justly had, should be heard and determined. The law gave him his day in court. Neither fraud, accident nor mistake of fact intervened to prevent or excuse him from availing himself of his legal right. He did not seek his legal remedy, and whether he misconceived the law or was simply negligent, it is well settled he cannot invoke the aid of a court of chancery to relieve him.” In Kochersperger v. Larned, 172 Ill. 86, and Kinley Manf. Co. v. Kochersperger, 174 id. 379, the same doctrine was announced and applied as in the Beidler case. Appellant urges that it appears from the stipulated facts that the board of review did not refuse to grant him a hearing; on the contrary, they constantly expressed a willingness and intention to do so, and that the first intimation he had that he would not be afforded a hearing by the board of review was, that said board had delivered the books containing the assessment of real property to the county clerk. He contends, therefore, that he could not have maintained mandamus in anticipation of a supposed evasion or omission of duty on the part of the board; that mandamus will not lie to compel an officer to do an act which he expresses a willingness to do, and that the board were without power to make any changes or revision of the assessments after they had transferred the books of assessment to the county clerk; that therefore mandamus would not lie, either while the books were in the hands of the board of review or after such books had been transferred to the county clerk. Any evasion of a positive duty by an officer or a legal tribunal, amounting to a virtual refusal to perform the duty, is all that is needed to maintain a writ of mandamus. (Illinois State Board of Dental Examiners v. People, 123 Ill. 227.) Conduct from which a refusal can be conclusively implied is equivalent to a positive refusal. (People ex rel. v. Town of Mt. Morris, 137 Ill. 576; 14 Am. & Eng. Ency. of Law,—1st ed.—107.) The evasions of duty shown by the stipulation and the transfer of the books of assessment to the county clerk constituted a refusal to act by conclusive implication, and the appellant could have applied for a writ of mandamus at once upon being advised that the board of review had delivered the books of assessment to the county clerk without acting on his complaint. Counsel for appellant are in error in the view that mandamus would be unavailing after the board of review had delivered the books of assessment to the county clerk. Section 38 of the act of 1898 (Hurd’s Stat. 1899, p. 1453,) provides that the board of review in the county of Cook shall, on or before the 7th day of September, annually, complete its work and make the necessary entries in the assessment books to make the assessments conform to the changes made therein by said board, and shall attach to said books of assessment an affidavit, after a form prescribed in the section; and section 43 of the same act requires the board of review to deliver the assessment books, when so completed, to the county clerk. But a proviso added to said section 38 of said act provides “that in counties containing 125,000 or more inhabitants the board of review shall also meet from time to time and whenever necessary to consider and act upon complaints and to further revise the assessment of real property as may be just and necessary.” Without assuming to declare that this proviso has further or other effect, it is clear, under the provisions thereof, the courts, by means of a writ of mandamus, could compel the board of review to convene after the said 7th day of September for the purpose of performing a duty which rested upon them when the books were declared to be completed, as did, in this instance, the duty to consider and act upon the complaint of the appellant. An inferior tribunal which has omitted, and by evasion refused, to perform an official duty while officially convened, cannot, by adjourning its meeting sine die, place itself beyond the coercive power of the courts to compel the performance of a duty enjoined by law. It may be required to re-convene and perform its legal functions. If, as was remarked in People v. Board of Supervisors, 185 Ill. 288, it is the general rule mandamus will not be granted in anticipation of a default or failure of official duty, it must be that the writ can be availed of after the omission or failure has occurred, otherwise the observance or, non-observance of the statutory duty would become a matter wholly resting in the uncontrollable discretion of the public officer or official tribunal charged with the duty. The appellant should have availed himself of this writ, and thereby obtained the revision of the estimate of the value of his property as made by the board of assessors. The county court correctly overruled his objections to the application for judgment against his lots. The judgment appealed from is affirmed. Judgment affirmed. Mr. Justice Magruder: I do not concur in this decision.