People ex rel. Hebel v. Meacham

Mr. Justice Hand delivered the opinion of the court: This was a petition for a writ of mandamus filed by the board of assessors of Cook county against the board of review of that county to compel the board of review to remove from the assessment books of the county certain personal property assessments reviewed and corrected by said board of review in the year 1908 and to insert in the place therepf, in said books, the assessments made by said board of assessors for said year. The board of review filed an answer to said petition and the board of assessors a demurrer to said answer, which demurrer was overruled, and the board of assessors having elected to stand by its demurrer, the suit was dismissed, and the board of assessors has prosecuted an appeal to this court. The pleadings show that in 1908 the board of assessors of Cook county required every person in the county to malee, sign, swear to and file with said board thp personal property schedule provided for by the statute, and that various persons described in said petition (naming them) neglected and refused to make such schedule or to subscribe and swear to the same and file the same with the board of assessors; that the board of assessors thereupon listed the personal property of such persons, according to its best knowledge, information and judgment, at its fair cash value, and added to such valuation a penalty of fifty per cent of such valuation, and entered the aggregate of such assessment and penalty in the assessment books of the county as the assessment of said persons and thereafter returned the assessment books, as provided by law; that complaints in writing", alleging that their property had been incorrectly assessed by the board of assessors, were filed with the board of review; that said board of review thereafter reviewed and revised said assessments as 'to such persons who had neglected and refused to make, subscribe, swear to and file with the board of assessors a schedule of their personal property, and entered upon said assessment books the result of its action in reviewing and revising said assessments as the true assessment of the personal property of such persons, and that as the result of such review and revision the board of review in many instances reduced the assessments of such persons, and in some instances remitted the entire amount of the penalty imposed upon such property owners for a failure to make and file a schedule of their personal property with the board of assessors. The board of assessors contends that when an owner of personal property, upon the request of the board of assessors, has neglected or refused to make, subscribe and swear to the schedule of his personal property and file the same with the board of assessors, as provided by the statute, and the board of assessors has estimated the value of his personal property in gross, at its fair cash value, and added a penalty of fifty per cent to such valuation and set the same down in the assessor’s books as the total personal property assessment of such person, the board of review is bound by the action of the board of assessors and is without jurisdiction or authority to review said assessment or to remit any part of such penalty; while the board of review contends that it has the right to review and revise said assessment the same as any other assessment, and that it may raise or lower the assessment or remit said penalty and correct said estimate in such manner as to the board of review shall seem just. The statute (Hurd’s Stat. 1908, chap. 120, par. 313,) provides that the board of assessors shall require every person to make, subscribe, swear to and file the schedule provided for by the statute, and that if any person shall neglect or refuse to make and file such schedule or to subscribe and swear to the same, the board of assessors shall list the property of such person, according to its best knowledge, information and judgment, at its fair cash value, and shall add to such valuation an amount equal to fifty per cent of such valuation, which aggregate amount shall be the assessment of such person; and paragraph 329 of said statute provides, on complaint, in writing, that any property described in such complaint is incorrectly assessed, the board of review shall review the assessment and correct the same as shall appear to be just. The language of paragraph 329 is very broad, and, we think it clear, applies to an assessment made under the provisions of paragraph 313. It states that any property which has been incorrectly assessed may be reviewed and corrected by the board of review. We see no reason why a person who has failed to file a schedule should be required to pay taxes upon an amount which is too high or be allowed to escape taxation-by paying taxes upon an assessment which is too low. The penalty fixed by the statute for a failure to file a schedule is, that there shall be added to the “fair cash value” of such person’s property “an amount equal to fifty per cent of such valuation,” and not that a person failing to file such schedule shall be absolutely bound by the value which the board of assessors may have fixed as the “fair cash value” of his property and an amount equal to fifty per cent of such valuation. Our conclusion is, that the property owner who has failed to file a schedule has the right to have the board of review review and revise his assessment, the same as any other tax-payer. It is said, however, that the result of this holding will be to permit a tax-payer who has failed to file a schedule and who has been assessed by the board of assessors and had a penalty of fifty per cent of the fair cash value of his property as fixed by the board of assessors added to his assessment, to escape such penalty by filing a complaint with the board of review for a review of his assessment, as it is claimed the board of review has no power to impose a penalty, and if it interferes with the assessment it must necessarily remit the penalty. In other words, if the board of review raises the assessment or lowers the assessment, the assessment as corrected would be the amount of the fair cash value of the property as fixed by the board of review, exclusive of the penalty, the result of which would be to remit the penalty. It is true that the board of review is given no power to impose a penalty for a failure to file a schedule upon property originally assessed by it, such as omitted property. When, however, the board of review revises the assessment of property made by the board of assessors its jurisdiction is revisory and not original in its character, and it may affirm the action of the board of assessors,—that is, it may neither raise nor lower the assessment made by that body, or it may raise or it may lower the assessment. It is, however, required by the statute, in reviewing and revising an assessment, to correct the assessment in such manner “as shall appear to be just,”—that is, according to law,—and no arbitrary discretion is conferred upon that board by the statute, and if a tax-payer has wrongfully failed to file a schedule of his personal property and has incurred a penalty of fifty per cent upon its “fair cash value,” the board of review in that instance would not have the right to relieve him of the penalty, but under the statute the board óf review, in correcting the assessment so as to make it a just assessment,—that is, a lawful assessment,—would be required to add to whatever amount it found to be the “fair cash value” of the personal property assessed, an amount equal to fifty per cent of the amount so determined by it as the fair cash value of the property, and to extend upon the assessment books, as corrected by it, the aggregate of those two amounts as the corrected assessment. Wé think it clear from an examination of all the provisions of the act of 1898 (Hurd’s Stat. 1908, p. 1809,) that it was the intention of the General Assembly that the board of review created by that statute should have the power to review all assessments of personal property made by the board of assessors, and that an assessment made in a case where a schedule had not been filed and where a penalty of fifty per cent of the fair cash value of the property assessed had been added, is not taken out from under the jurisdiction of the board of review by the statute. The statute is general in its terms and confers upon the board of review the right to review and correct assessments in all cases, and as those cases where penalties are imposed for a failure to file a schedule are not excepted from the jurisdiction of the board of review, those cases' must be held to be included within the general terms of the statute which confers the right of review upon the board of review. The question of the right to maintain this suit upon the relation of the board of assessors has not been raised or discussed, and the fact that this case has been disposed of on its merits is not to be taken as committing this court to the view that a suit of this character will lie upon the relation of the board of" assessors. Finding no reversible error in this record the judgment of the circuit court will be affirmed. Judgment affirmed.