The People v. Nixon

There has been filed in this court, upon leave granted, a petition in the name of the People, on the relation of Kilner Fox Thomas, a resident and tax-payer of Cook county, for a writ of mandamus commanding George F. Nixon and Fred W. Brummel, as members of the board of appeals of Cook county, to convene as such board and to vacate and expunge an order entered by that board on March 22, 1933, ordering a reduction of the assessment on certain classes of buildings in Cook county. The relator and respondents have entered into a stipulation that the sole question to be determined is whether or not the board of appeals had jurisdiction and power to enter the order which relator seeks to have vacated. The cause is submitted on the petition and stipulation.

On March 22, 1933, Thomas Harvatt filed with the board of appeals of Cook county a verified complaint alleging that he is the owner of a certain described lot in Chicago which is improved with a five-room brick bungalow; that the assessment on his bungalow for the year 1931 was excessive; that there was a lack of uniformity in the assessment for the year 1931 on income-producing and commercial property on the one hand, and on cottages, homes, bungalows and two-flat and three-flat buildings on the other hand; that the base price used by the assessor in making the assessment on the latter class of property was excessive and all of such property was assessed too high, and that a revision of the entire assessment of all real estate in Cook county was necessary. The complaint purported to be filed under the provisions of section 34 of the Revenue act of 1898 as amended, and the prayer was "for a revision of the entire assessment, or a part thereof, of the 1931 real estate assessment." Without giving notice to the assessor and without a hearing on the complaint the board of appeals on March 22, 1933, entered the order complained of, by which it directed the assessor of Cook county to revise the assessment on all cottages, bungalows, residences, homes and two-flat and three-flat buildings by reducing the base price on which all assessments of such property was made by fifteen per cent. The relator contends that the board of appeals was without jurisdiction or power to enter the order of March 22, 1933, and that that order is therefore void. On the other hand, the respondents contend that by section 34 of the Revenue act of 1898 as amended, the board of appeals was invested with jurisdiction and power to make the order.

The question presented in this case requires a consideration of the provisions of the Revenue act of 1898 as amended by an act of the General Assembly approved and in force February 13, 1932. (Laws of 1931-32, Special Sess. p. 65.) By this amendatory law the board of assessors of Cook county was abolished and the powers theretofore exercised by such board were vested in the county assessor. Likewise the board of review of Cook county was abolished and the board of appeals became the successor of the board of review, but all of the powers theretofore conferred upon the board of review were not vested in the board of appeals. Section 34 as amended by the amendatory act reads as follows:

"Sec. 34. The board of review or in counties containing two hundred fifty thousand or more inhabitants the board of appeals shall meet on or before the third Monday in June in each year for the purpose of revising the assessment of property. At such meeting the board of review, or board of appeals, upon application of any tax-payer or, in counties of less than two hundred fifty thousand inhabitants, upon their own motion, may revise the entire assessment or any part thereof of any tax-payer and correct the same, as shall appear to them to be just, but in none of the cases provided for in this act shall the assessment of the property of any person be increased unless such person or his agent, if either be a resident or has a place of business in the county, shall first have been notified in writing and been given an opportunity to be heard. Such meeting may be adjourned from day to day as may be necessary: Provided, that the final adjournment of said board of review or board of appeals shall be on or before the seventh day of September except as hereinafter provided in counties containing two hundred fifty thousand or more inhabitants and that no per diem compensation shall be paid any member of said board for services rendered after the date fixed for the final adjournment: Provided further, that in the five years next following the completion of a general re-assessment of real property in any county containing two hundred and fifty thousand or more inhabitants, made pursuant to an order of the State Tax Commission such meeting for the purpose of revising the assessment of property shall be held on the Monday following the seventy-fourth day after the assessment books are required to be called for under section II of this act, and the final adjournment of such board of appeals shall be on or before the one hundred and fiftieth day after the, assessment books are required to be called for under section II of this act: Provided further, that in such five years the board of appeals at the time and place fixed and upon notice given as in this section provided, may hear complaints and review and correct any such assessments by towns or taxing districts, as the assessment for such towns and taxing district is completed and the books certified to the board of appeals by the assessor without waiting for the completion of the entire assessment of the county. The notice required by this section may provide for a revision and correction at the specified time of one or two or more towns or taxing districts. The board of appeals at least one week before the meeting of such board of appeals to revise and correct the whole or any part of such assessment shall publish a notice of the time and place of its meeting for such purpose in at least one newspaper of general circulation published in the county, said notice to specify the date and place at which complaints may be filed and the towns or taxing districts the assessments of which will be considered for revision and correction at such time."

The powers and duties of the board of appeals of Cook county are set forth in section 35a, which was added to the Revenue act by the amendatory act. That section reads as follows:

"Sec. 35a. In counties containing two hundred fifty thousand or more inhabitants the board of appeals in any year shall

"(a) On complaint that any property is over-assessed or under-assessed, or is exempt, review and order such assessment corrected;

"(b) Order the county assessor to correct any mistake or error (other than mistakes or errors of judgment as to the valuation of any real or personal property) in the manner provided in section 35c of this act; and

"(c) Direct the county assessor to assess all property subject to assessment which he has not assessed, for any reason and enter the same upon the assessment books and to list and assess all property, real or personal, that has been omitted in the assessment of any year, or number of years, or if the tax thereon, for which such property was liable from any cause, has not been paid or if any such property, by reason of defective description or assessment thereof, fails to pay taxes for any year or years, in either case the same, when discovered by the board shall be listed and assessed by the county assessor and the board may order the county assessor to make such alterations in the description of real or peronal property as it deems necessary."

The method of procedure and the manner in which the board of appeals shall exercise the power conferred upon it by paragraph (a) of section 35a are set forth in section 35b, which was also added by the amendatory act. Section 35b reads as follows:

"Sec. 35b. In counties containing two hundred fifty thousand or more inhabitants, complaints that any particular property, real or personal, described therein is over-assessed or under-assessed or is exempt may be made by any tax-payer. All such complaints shall be in writing, shall be verified under the oath of the complaining party and shall be filed with the board of appeals in duplicate. The board of appeals shall forward one copy of each such complaint to the county assessor. In order to affect the assessment for the current year such complaints shall be filed on or before the first day of August, but if the assessment books containing the assessment complained of are not filed with the board of appeals by the twentieth of July, then such complaint shall be filed within ten days after such books are so filed with such board: Provided, that in the five years next following the completion of a general re-assessment of real property in any county containing two hundred and fifty thousand or more inhabitants, made pursuant to an order of the State Tax Commission, complaints of assessment of real property for any town or taxing district may be made at the time specified in the notice or notices published by the board of appeals in compliance with section 34 of this act, subject to the conditions that every complaining tax-payer shall have at least seven days after the publication of such notice within which to file such complaint. Complaints relating to real property shall be classified by towns and complaints relating to personal property shall be classified in such manner as the board of appeals, by order duty entered of record, may determine. All classes of complaints shall be docketed numerically, each in its own class, in the order in which they are presented, as near as may be, in books kept for that purpose, which books shall be open to public inspection. Complaints relating to real property shall be considered by towns and complaints relating to personal property shall be heard in their order by classes, in pursuance of the order of the board, heretofore mentioned, until all complaints have been heard and passed upon by the board.

"No hearing upon any complaint shall be held until the person or corporation affected and the assessor who certified the assessment have each been notified and given an opportunity to be heard thereon. The hearing upon any such complaint shall be open to the public and the board of appeals shall sit together and hear the representations of the parties interested or their representatives and no order for a correction of any assessment shall be made unless both members of said board concur therein and, in such case, an order therefor shall be made in open session and entered of record on the books of the board. In each instance in which an assessment is ordered corrected the board of appeals shall make and sign a brief written statement of the reason for such change and of the manner in which the method used by the assessor in making such assessment was erroneous and shall deliver a copy of such statement to the assessor who certified such assessment. Upon request the board shall hear any tax-payer in opposition to a proposed reduction in any assessment."

Section 34 of the act is general in its terms and its provisions apply to boards of review in counties other than Cook as well as to the board of appeals of Cook county. That section specifies the time that boards of review and the board of appeals shall meet for the purpose of revising the assessment and the time and manner of giving notice of the meetings. It does not purport to detail the powers and duties of boards of review or of the board of appeals in revising the assessment. It simply declares, in general terms, that at the meeting "the board of review, or board of appeals, upon application of any tax-payer or, in counties of less than two hundred fifty thousand inhabitants, upon their own motion, may revise the entire assessment or any part thereof of any tax-payer and correct the same, as shall appear to them to be just." This clause has the effect of limiting the board of appeals, in revising the assessment, to action taken on the complaint of a tax-payer. Section 35 of the act details the powers and duties of boards of review in revising the assessment, and sections 35a, 35b, 35c, 35d, 35e, 35f, 35g and 35h detail the powers and duties of the board of appeals in performing that function. Section 34 of the act does not set out the nature of the complaint which may be filed before the board of appeals and on which it may act, and does not set out the procedure to be followed by the board and its power in acting upon such complaint, other than in very general terms. To ascertain the powers and duties of boards of review in revising an assessment it is necessary to read sections 34 and 35 of the act together; and to ascertain the powers and duties of the board of appeals in performing such function it is necessary to read section 34 and sections 35a to 35h, inclusive, of the act together. In construing statutes the intention of the legislature must be determined from a consideration of the whole and every part of the act under consideration taken and read together. Crozer v.People, 206 Ill. 464; Uphoff v. Industrial Board, 271 id. 312.

It is necessary to refer to section 35b to ascertain the nature of the complaint that may be filed before the board of appeals and on which it may act and the procedure to be followed by the board in acting on the complaint. Section 35b provides that complaints "that any particular property, real or personal, described therein is over-assessed or under-assessed or is exempt may be made by any tax-payer" to the board of appeals, such complaint to be in writing and verified and to be filed in duplicate; that public hearings shall be had on such complaints, but that no hearing shall be held on any complaint until the person or corporation affected, and the assessor, have been notified and given an opportunity to be heard. It is clear that by these provisions of sections 34, 35a and 35b it was the intention of the General Assembly to define and limit the power of the board of appeals in revising assessments to cases of tax-payers who have filed complaints as to particular parcels of real estate or personal property pursuant to section 35b and in no other cases. Section 35b is definite on this proposition. The provisions of this section manifest an intention upon the part of the General Assembly to limit the power of the board of appeals in acting on a complaint of a tax-payer, to a revision of the assessment on the particular property described in the complaint, because they require a complaint that "particular property * * * described therein" has been over-assessed or under-assessed or is exempt, and require persons and corporations that would be affected by a revision of the assessment to be notified and given an opportunity to be heard.

Section 34 empowers the board of appeals to revise and correct the entire assessment of any tax-payer or any part thereof. It contains no authority to revise the entire assessment in a taxing district or the assessment on a particular class or classes of property. Before the amendatory act of 1932 was passed and approved, the board of review of Cook county, and of all other counties, had by the fifth paragraph of section 35 power to increase or reduce the entire assessment of either real or personal property, or both, or of any class included therein, if the assessment was not made on the proper basis. This power is still vested in boards of review by that paragraph of section 35 but there is no similar paragraph in any of the sections prescribing the powers and duties of the board of appeals, and this leads to the conclusion that it was not the intention of the legislature to confer any such power on the board of appeals.

It is clear that in revising the assessment of any property because it is over-assessed, under-assessed or exempt, the board of appeals may act only upon the complaint of a tax-payer. Such complaint, by the provisions of section 35b, must describe the particular property the assessment of which is sought to be revised, and the hearing and action of the board must be on the complaint after notice given to the assessor and all persons and corporations that would be affected by the revision of the assessment of the particular property described in the complaint. In this case the only particular property described in the complaint filed before the board of review was the lot owned by the tax-payer. The complaint described certain classes of property the assessment on which the complainant alleged was too high, but it did not describe the particular pieces of property in those classes other than the lot owned by the tax-payer. By this complaint the board of appeals was given jurisdiction, after notice and a hearing, to revise the assessment on the property of the complaining taxpayer particularly described in the complaint and no other. On that complaint, without giving notice to the assessor and the persons and corporations to be affected, it entered an order directing the assessor to reduce the assessment on certain classes of property. It had no power or authority, under the statute, to make such order, and the purported order is wholly void.

The writ of mandamus as prayed will be awarded.

Writ awarded.