Sanderson v. City of LaSalle , 57 Ill. 441 ( 1870 )

Mr. Justice Breese

delivered the opinion of the Court:

The appellee, the city of LaSalle, applied to the county court of LaSalle county for a judgment against certain delinquent lots in that city, for the general and special taxes assessed for the city thereon, for the year 1869, and for the taxes of the previous year.

Judgment was rendered against appellant’s lot, against his objections then and there made, from which he appeals. We deem it necessary to consider only the 12th objection, as, disposing of that, disposes of the whole case.

The objection is, that the assessor’s book was not returned to the clerk of the city on or before the 15th day of July, as provided by the ordinance of the city.

By sec. 8 of an ordinance, prescribing the manner of assessing property for taxation in the city of LaSalle, it is provided, the assessor shall finish and complete the assessment on or before the 15th day of July in each year, and shall add up, extend, certify and sign the same, and make return thereof to the clerk of the city on or before the day above named, in each year; and the city clerk shall, thereupon, immediately give notice by two publications in a weekly newspaper published in the city of LaSalle, that the assessment list for the year therein stated has been returned to him by the assessor, and is subject to the inspection of any person interested; and that, on the first Tuesday of the montli of August following, at two o’clock P. m., the city council will sit as a court of appeal from said assessment, when all persons will be heard who feel themselves aggrieved by the assessment of their property ; and the city council may approve, reduce, increase, alter, correct or amend such assessment, as in their opinion shall be proper and just.

It is not contended by appellee, that this ordinance is not within the chartered powers of the city. It is conceded to be, and as such, it is the law of the case, to the same extent that an act of the legislature would be, on a subject within their constitutional powers.

Appellee, hoAvever, insists that under the authority of the case of the City of Ottawa v. Macy et al. 20 Ill. 413, this provision being a part of an ordinance only, and not of the charter, that it is simply directory, and consequently not fatal. That case has no resemblance to the one before us. Here, the complaint is, that the assessment was not returned at the time required bylaw; there, the objection was, that the collector had not returned his warrant in thirty days as required by the ordinance. By sec. 9 of that ordinance, it was the duty of the commissioners, Avhen they had completed the assessment, to file the same in the office of the city clerk within forty days after their appraisement, unless further time should be given them for the purpose; and the clerk Avas required to give notice of such return, for six days, in the corporation paper, requiring persons wishing to appeal from the assessment, to file their objections by a certain day, at which time the city council would hear all objections to the assessment, and revise and confirm, or amend the same.

This was designed for the protection of property owners, and if omitted, would doubtless have invalidated the proceedings ; but the requirement of the collector to return the warrant in thirty days, was for the benefit of the city council, and not necessarily mandatory, as no property owner could be injuriously affected by a failure of the collector to comply strictly with the requirement.'

This case is very different, and is strongly put by this court in Marsh v. Chesnut, 14 Ill. 223, where the legislature makes it the imperative duty of an assessor to complete an assessment, and return the same to a particular place on or before a certain day, as in this case. It was there held, that the duty can not be dispensed with, without the consent of the party taxed, and the assessment is thereby invalid as against the owner of the land. The object of this provision in the revenue law, is identical with that of the ordinance, to afford the owner ample time and opportunity to ascertain the valuation put upon his property by the assessor, and if deemed excessive, that he may make application to the proper authority for a correction of the error. It was the intention of the law, in both cases, that some time should intervene the return of the assessment and the sitting of the tribunal having the power to revise the doings of the assessor. This interval of time is allowed the owner, the court say, to inspect the return, and prepare for the hearing of his objections to the assessment. This requisition of the statute is clearly imperative; it is made for the benefit of the owner, and can not be dispensed with without his consent. A failure to observe it may seriously injure him. The courts have no power to declare it directory merely; such a decision would virtually deprive a party of the protection the legislature designed to afford him. The court further say, “We have no doubt, this direction to the assessor was intended to be compulsory, and that a failure by him to comply Avith it, renders the assessment invalid as against the owner of the land.”

In conclusion, it is further said: It is a sound and inflexible rule of laAV, that Avhen special proceedings are authorized by statute, by Avhich the estate of one man may be divested and transferred to another, every material provision of the statute must be complied Avith. The owner has the right to insist upon a strict performance of all the material requirements, and especially of those designed for his security, and the nonobservance of which may operate to his prejudice. On this jirinciple alone, the direction to the assessor to make his return by a given day, is compulsory, and its performance is indispensable to the validity of the assessment. Without a valid assessment, the subsequent proceedings necessarily fall, for the Avant of a basis on Avhich to rest.

With equal force and propriety, may these views be urged in this case ; no difference in principle is perceived in the cases.

But it is contended by appellee, this omission is cured by the act of 1853, amending the general revenue law of the State, providing as it does, that the failure to return the assessment in time, shall not \dtiate.

It Avill be observed, the act cited relates in no manner to assessments for corporate purposes ; they are regulated by the revenue law of the municipality. ISTo provision like this, in the general law, has been incorporated into the ordinance, nor is it to be found in the charter of the city. The case, then, stands upon the 8th section of the ordinance cited aboAre, and the provision therein, requiring the return of the assessment to be made on or befóle the day named therein, is, for the reasons given in Marsh v. Chesnut, supra, of an imperative and mandatory character, and not having been complied Avith, the assessment is necessarily im-alidated.

For the reasons given, the judgment is reversed and the cause remanded. Judgment reversed.