People Ex Rel. Brecheisen v. Board of Review of Lake County ( 1936 )

In my opinion the decision of the majority of this court is based upon cases which are not in point. In Barkley v. Dale,213 Ill. 614, the board of review attempted to act upon its own motion after it had completed its work for the year, attached the affidavit to the books and delivered them to the county clerk. No question of a fraudulent omission to act was involved. The same is true of Kimball Co. v. O'Connell,263 Ill. 232, where the board of assessors made its assessment of the tangible property of the appellant and returned the assessment to the board of review on July 1, 1912, with the affidavit attached, as required by section 23 of the Revenue act of 1898. The board of review made a review of the assessment and on September 12, 1912, made its affidavit and attached it to the books. On October 12, 1912, the board of assessors of its own motion attempted to make an assessment on the capital stock of the appellant, which the board of review confirmed on october 23, 1912. We held that no assessment could be made by voluntary action of the taxing bodies after the time for such assessment had expired by law. That case, also, did not involve a fraudulent omission to perform a duty.

In Carney v. People, 210 Ill. 434, we held that even in counties of 250,000 inhabitants, where the then board of review (now board of appeals) was authorized to meet from time to time to make assessments, the board must act of its own motion while it has control of the books, and that it can consider the complaints of property owners only during such time. But this was in connection with the holding that where the board makes an original assessment, notice must be given the property owner, who otherwise would be deprived of a hearing. We also held that the property owner need not follow the board of review's proceedings by constant attendance on its meetings, but is entitled to a notice and a hearing if an original assessment was to be made. That case did not involve a fraudulent assessment or a fraudulent omission to assess.

In People v. Mottinger, 212 Ill. 530, we refused to mandamus an election canvassing board to re-assemble and make a new canvass. That board had acted, performed its duties and had gone out of existence. It was not a continuing body, and, whether it had acted well or ill, it could not be compelled to re-assemble or to act again. An election contest was held to be the proper remedy. There was no charge of fraudulent action or failure to perform a duty.

As the case now stands, no tax-payer can challenge the action of a board of review after adjournment, and these boards cannot be compelled to re-assemble. If the board of review refuses to act, or acts fraudulently, as charged here, only the State Tax Commission can order the board of review to meet in extraordinary session, and in view of this decision even that power is doubtful. It is even doubtful if our decision inLambrecht v. Wilson, 290 Ill. 547, will avail to permit the board of review in a succeeding year to make the assessment, on the theory that because the assessment was so grossly inadequate it amounts in law to no assessment and to a fraud upon the State.

I admit that a board of review cannot re-convene and act on its own motion, as shown by the Barkley and Kimball cases, but if a court cannot by mandamus compel the performance of an admitted statutory duty, I can see no reason why the State Tax Commission should have the power to call back into life and being the board of review after its final adjournment and delivery of its books to the county clerk. Let us assume that a tax-payer filed his complaint because his property, the fair cash market value of which is $500, was assessed at $100,000, and the board of review neglected, failed and refused to act and denied this tax-payer a hearing on his complaint and immediately adjourned. We said in People v. Beemsterboer, 356 Ill. 432: "Plaintiff in error made no attempt to compel the board of review to give him a hearing upon his complaint. Under the repeated decisions of this court he thereby waived his right to raise the question of over-assessment in the county court upon application of the county collector for judgment. If the board neglected or refused to act and review an alleged fraudulent assessment his remedy was by mandamus. Having failed to pursue his remedy to compel a hearing by the board of review the county court properly overruled his objections to the assessment. — People v. Cesar, supra; People v. Goldberg, 354 Ill. 423;Loewenthal v. People, 192 id. 222." In the Beemsterboer case the objection to the application for judgment and order of sale was one filed in the county court of Cook county, but there ought not be a right to mandamus in Cook and St. Clair counties alone, yet this seems to be the inescapable result of the majority opinion.

In People v. Outwater, 360 Ill. 621, we said at page 624: "Courts have no power to fix the value of property for taxation, and before a tax-payer may resort to the courts for relief he must show that he has been diligent in pursuing his remedy to have the assessment corrected by the board of review or that he was prevented from pursuing such remedy by fraud, accident or mistake. (Kinderman v. Harding, 345 Ill. 237;People v. Hart, 332 id. 467.) Appellants here made no attempt to compel the board of review to give them a hearing upon their complaint, and no showing is made that they were prevented from pursuing this remedy by fraud, accident or mistake. Under repeated decisions of this court they thereby waived their right to question the alleged over-assessment in the county court upon application of the county collector for judgment. * * * If, as is claimed here, the board has neglected or refused to act and review the alleged fraudulent assessment their remedy was by mandamus. — People v. Cesar, 349 Ill. 372; People v.Goldberg, 354 id. 423; Loewenthal v. People, 192 id. 222." Theoutwater case arose in Hardin county, which has the same kind of board of review as that in Lake county. If mandamus was the proper remedy in Hardin county, as we said it was, it should have been proper in the instant case.

The majority opinion ignores other sections than those mentioned, contained in the Revenue act of 1898, which have the effect of making boards of review continuing bodies. Section 30 of that act (Ill. State Bar Stat. 1935, chap. 120, par. 341,) provides that two of the three members of the board shall be appointed for a definite time and for the filling of vacancies. Section 35(7) of the same act empowers the board, after final adjournment and before the entry of a tax judgment, to issue certificates of errors or mistakes and their causes, which certificates are admissible in evidence in the county courts. Section 12 of the Tax Commission act (Ill. State Bar Stat. 1935, chap. 120, par. 117,) provides the State Tax Commission may at any time, and from time to time, order boards of review in counties such as Lake to convene in extraordinary session to further revise, correct and equalize the assessment of property. This is not limited to the time before final adjournment but has to do with further assessment and correction. These sections must be construed with those mentioned in the majority opinion, for all are in pari materia. (People v. Wallace, 291 Ill. 465.) The case presented is one in which a continuing body is permitted by a sine die adjournment to evade the performance of its statutory duty, for the demurrer admits that it made an assessment which was so grossly inadequate that it was fraudulent and amounted in law to no assessment whatever.

The majority opinion ignores many earlier decisions of this court which announce the wholesome principle that the performance of a duty may not be evaded by adjournment sinedie. (People v. Heckard, 341 Ill. 144, 150; People v. Lueders, 287 id. 107, 116; Board of Supervisors v. People, 226 id. 576, 580; Loewenthal v. People, 192 id. 222; People v. Board ofSupervisors, 185 id. 288, 293.) In those cases we said the adjournment was merely a subterfuge, and the writ was awarded. In the case at bar the board's adjournment was likewise a subterfuge.

The majority opinion also ignores the decision in State Boardof Equalization v. People, 191 Ill. 528, in which mandamus was awarded to coerce the respondent to value and assess, in the manner provided by law, the capital stock, including franchises, of several corporations. The suit was filed before the board of equalization adjourned, but that body ignored the pendency of the suit, failed and refused to value the capital stock of some corporations at any amount whatever, and placed values so low on the stock of the remaining corporations as to amount in law to no assessment at all. In affirming the judgment of the trial court we held that the duty of the taxing body was mandatory and that its performance could be compelled even after adjournment. We said that an administrative body could not place itself beyond the coercive power of courts by adjournment sine die, and that where the duty sought to be enforced by mandamus is of a public nature and no one is empowered to demand its performance, the law imposing the duty stands as a continuing demand and removes the necessity for a prior demand and refusal before mandamus is invoked. In People v. Webb, 256 Ill. 364, a writ of mandamus was awarded to coerce the board of review of Cook county to assess property which had been omitted from taxation during previous years. That decision was in no way limited to counties of a given population, where the board of review may adjourn from time to time, but the decision was based upon the broad proposition that mandamus will lie to compel assessing officers to discharge their duties in making a fair assessment of property.

For the reason that the majority opinion has entirely overlooked the principles above pointed out, I respectfully dissent therefrom.

Mr. JUSTICE HERRICK concurs in this dissent.