People Ex Rel. Brecheisen v. Board of Review of Lake County

1 N.E.2d 402, 363 Ill. 106

• Court: Illinois Supreme Court
• Decided: February 14, 1936
• Docket: No. 22426. Reversed and remanded.
• Status: Published

Opinions

Mr. Justice Orr

delivered the opinion of the court:

A petition for a writ of mandamus was filed in the circuit court of Lake county against the board of review of that county, and the members thereof, to coerce it forthwith to value and assess the personal property of the Waukegan Generating Company and to correct its books to conform to such assessment. The petition was later amended, and respondents filed a general and special demurrer to the second amended petition. The demurrer was overruled and the writ of mandamus was awarded. Respondents, who abided their demurrer, have brought the case here by direct appeal, the revenue being involved.

In the view we take of this case, it will not be necessary for us to consider the merits of the petition or the alleged abuse of discretion on the part of the board of review in making an assessment termed by the petition as arbitrary and fraudulent. The original petition was filed on December 13, 1933, forty-one days after the board of review of Lake county had completed its duties,. closed its books and adjourned. The second amended petition was filed on January 18, 1934. The general and special demurrers were filed on January 23, 1934, attacking the petition on the ground that there was no duty or authority on the part of respondents to do the acts sought to be coerced. It is this point, and the alleged error of the trial court’s ruling thereon, which we shall consider.

We have often held that boards of review have only such authority as is expressly given them by statute. (People v. Sheridan-Brompton Building Corp. 331 Ill. 495; People v. Keogh, 306 id. 323.) Section 30 of the Revenue act of 1898 (Cahill’s Stat. 1933, p. 2363; Smith’s Stat. 1933, p. 2416,) provides for a board of review of three members in counties under township organization and having less than 150,000 inhabitants. Lake county is in this classification. Section 34 of the Revenue act of 1898 provides that the final adjournment of the board shall be on or before the 7th of September, except as is provided in counties containing 250,000 or more inhabitants. Section 38 provides that on or before the 7th day of September, annually, the board shall complete its work and shall make entries in the assessment books required to make the assessment conform to the changes made by the board, and shall attach to the books an affidavit as prescribed in the section. Section 38 further provides that in counties of 250,000 or more inhabitants the board of appeals (formerly 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.” There is no such provision with respect to boards of review in counties such as Lake, which have less than 150,000 inhabitants. Section 43 of the Revenue act of 1898 provides that when the books are so completed, the board of review shall deliver one set of the books to the county clerk, who shall file it in his office, and one set to the supervisor of assessments and that the assessments so completed and certified to the county clerk, and as equalized by law “shall be the assessment upon which the taxes of that year shall be extended by the county clerk.”

The statutory provisions, supplemented by our own decisions, disclose that the board of review lacked power after its final adjournment to re-convene and re-assess the property of the Waukegan Generating Company. The case of Barkley v. Dale, 213 Ill. 614, is squarely in point and decisive of this question. In the Barkley case, the board of review met on July 8, 1903. On the 28th day of the following September, it returned to the county clerk the assessment books, with the necessary affidavits attached thereto, showing it had completed its work for the year 1903. Prior to September 28, 1903, it had notified Barkley to appear on October 7, 1903, before the board for examination as to his property, for the purposes of assessment. The taxpayer appeared on October 8, and on subsequent days, and was examined by the board. It did not make a report to the county clerk of the amount of omitted credits asssessed against Barkley until December 4, 1903. On these facts the tax-payer made the contention that the board of review, after September 28, 1903, was without jurisdiction to make the assessments for omitted credits against him. This contention was sustained. In construing the various statutory provisions, we there said (p. 618) : “Section 34 of the act of 1898, by which boards of review were created, provides that such boards shall meet on or before the second Monday of July in each year for the purpose of revising the assessments of property in their county. Paragraph 1 of section 35 of said act defines the duties of said board, and among other things provides the board shall assess all property subject to assessment which shall not have been assessed by the assessors • * * * and by section 38 of the former act it is provided that the board of review shall, on or before the 7th day of September, annually, complete its work, and make, or cause to be made, the entries in the assessment books required to make the assessment conform to the changes made therein by the board of review, and shall attach to each of said books an affidavit signed by at least two members of said board, a form of which affidavit is given, and which states that the books returned contain a full and complete list of the real and personal property in said county subject to taxation for said year; and section 40 provides that a failure to complete an assessment in the time provided by law shall not vitiate the assessment; and a proviso -to section 38 is to the effect that in counties containing 125,000 or more inhabitants, within which class Vermilion county does not fall, the board of review shall 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; and section 43 provides, when the books are completed, for the return of those containing the assessment of personal property to the county cleric, who shall file the same in his office, and that the assessment so completed by the board of review, and as equalized by the State Board of Equalization, as provided by law, shall be the assessment upon which the taxes for the year shall be extended by the county clerk.

“We think, from a consideration of all of said sections, that the provision in section 38 that boards of review shall complete their work on or before the 7th day of September, annually, in view of section 40, is so far directory that the board may continue its sessions until it has completed the work then pending before it, and is prepared to return the assessment books to the county clerk. It is clear, however, when a board of review has completed its work and attached the necessary affidavit to the assessment books and returned said books to the county clerk, that the jurisdiction to act as said board of review for that year, except in counties of 125,000 or more inhabitants, which is covered by the proviso to section 38, has ceased, and that an assessment of omitted credits made by the board of review after the assessment books have been returned by the board to the county clerk is void.”

Similarly, in a later case, Kimball & Co. v. O’Connell, 263 Ill. 232, the language above quoted in the Barkley case was approved and adopted in a situation almost identical with the one we are now considering. There again this court quoted with approval the construction of sections 38, 40 and 43 considered in the Barkley case, and in addition, said: “In Carney v. People, 210 Ill. 434, this court had under consideration the proviso contained in the latter part of section 38, with reference to the board of review in counties with over 125,000 inhabitants, and on page 441, we said: ‘The latter provision must necessarily be limited to the time that the board of review has control of the assessment books. When the books are completed and delivered to the county clerk, the assessment as completed and as equalized by the State Board of Equalization is the assessment upon which the taxes are to be extended and upon which the rate per cent of the taxes is to be computed. An original assessment may therefore be made by the board of review up to the moment the books are returned.’ * * * On July 1, the board of assessors, having completed the revision of their assessment and having appended to the assessment books the required affidavit signed by them, had no further power, by the express provisions of section 23, to change the assessment or' alter the assessment books so as to change or affect the taxes of that year.”

In People v. Mottinger, 212 Ill. 530, a motion was made to file a petition for mandamus, directed to the county clerk of Will county and to two justices of the peace who had served with the clerk as canvassers of certain election returns. The board had acted and the relief sought was for it to meet again and make another canvass. This court denied the motion, saying at page 531: “It may be said with reference to this motion and petition, that this canvassing board which we are asked to control by mandamus is not one of any permanent duration. * * * When the board has performed its duties, whether well or otherwise, its official existence as a canvassing board is gone. The members of it have resumed their ordinary stations in life as individuals. They cannot any longer be said to be a canvassing board after the time that their duties have been performed. It is well recognized that a writ of mandamus will not issue against individuals as such, but must be against some person or persons clothed with authority to do the act sought to be compelled. These persons are no longer in authority, and on this phase of the petition the court has very great doubt of its power to issue an order to these individuals to re-assemble and re-organize and then do some act differently from what they have already done. * * * If this canvassing board were now in existence and in session and were refusing to do its duty, — refusing to act, — the court might be asked to require it to act. But it has, in fact, acted. The petitioner says it has acted improperly. If that be true it is not a ground for a writ of mandamus to make it now act properly.” This same construction was adopted later in a similar case, Donahoe v. Owens, 277 Ill. 318.

The legislature, in fixing the time for final adjournment of boards of review, must have recognized that there must be finality at some reasonably certain time each year in the process of assessing property for taxation, in order that the State Board of Equalization might function, the rates be determined, and the taxes extended and collected annually with some degree of regularity and dispatch. In view of the foregoing authorities, we are satisfied that when the board of review of Lake county finally adjourned according to law on November 2, 1933, it was without power to reconvene in connection with any re-assessment or new assessment of taxes for that year. The writ of mandamus confers no new authority upon the person or body against whom it is issued — it creates no duty, but will issue only where the duty and authority to act already exist without the writ. People v. Dunne, 258 Ill. 441; Hooper v. Snow, 325 id. 53.

The judgment of the circuit court of Lake county is reversed and the cause is remanded with directions to sustain the demurrer and deny the writ.

.Reversed and remanded, with directions.