Petition — Fulton Market Cold Storage Co. v. Korzen

_— .

Susreme Court, U. &

ae |

k

D

JUN 23 1988

No. v4 5-4 8 54 SHAEL ROOAK. JR. Ctemy

Jn the

Supreme Court of the Anited States

Ocroser Term, 1976

PEOPLE OF THE STATE OF ILLINOIS, EX-REL.

BERNARD KORZEN, COUNTY TREASURER AND

EX-OFFICIO COUNTY COLLECTOR OF COOK

COUNTY, ILLINOIS,

Respondent,

vs.

FULTON MARKET COLD STORAGE COMPANY,

an Illinois corporation,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

James L. Fox

Donap P. CoLteTon

33 N. Dearborn Street

Chicago, Illinois 60602

Attorneys for Petitioner

Mosss, Grssons, Asramson & Fox

33 North Dearborn Street

Chicago, Illinois 60602

312-346-8370

Of Counsel

The Scheffer Press, Inc.— (312) 263-6850

all

INDEX

Citations of Opinions Below ........... ecisiesineshdaiasiianianianienss

IE Sh CIID CRIN iicciccscsersnnncsinstccintieicieitnitiitieateeiaaanate

NONE I a incealieindntienpesetisbiniietsinie

Constitutional and Statutory Provisions Involved ....

ny TE IS a. ss sccesiceeisistbentenionoouniatniancibenes

Reasons for Granting the Wit ...........ccccccccccessseseeseeees

I. The decision below denies equal protection and

due process by enforcing an admittedly dis-

PIT TIED inci isciicticnsdchlecacnattiesessassittnidadnelldnniabinnioni

II. The exhaustion doctrine was unconstitutionallv

applied by the Court below ............ isidiaditlaiiaiiaiis

III. Exhaustion of administrative remedies is not

a condition precedent to assertion, in this case,

of federal constitutional rights «0.0.00...

ii a

Appendix

Opinion of the Cireuit Court of Cook County,

April 27, 1973

Opinion of the Appellate Court of Illinois, First

District, September 27, 1974

Opinion of the Supreme Court of Tllinois, January

OP eee eee eee ee eee eee eee Pe Tee eee eee Tee eee ee ee ere ee)

OPP eee ee eee eee eee eee eee eee eee)

UE TUNE sinicsceiecapidiemntinpiapiaanediidialikialenstasteibiipadaiaindatidie

Order denying petition for rehearing, March 25,

1976

COREE EEE EEE EEE EERE EEE EEE EEE EEE EEE EEE HEHE EEE EERE EEE EEE HERE H EEE EE

CPP eee ee eee

il

PAGE

Cases CITED

American Federation of Labor v. Swing, 312 U.S.

ee, SUINNE wexssselasisacniiceneciesitenidbcaaiilcteenstsinasipipiadaaeaimtaabiiaids 13

Apex Motor Fuel Co. v. Barrett, 20 Ill. 21 395, 401

SEUETEITTY ~. cccsnsceuspactneupnnnnaniansiniedinssnantininisbambideandibahisaiabeanie: 15

Barrows vy. Jackson, 346 U.S. 249 (1953) .........eeee 13

Brinkerhoff-Faris Trust and Savings Co. v. Hill, 281

TPA TENEE MITE - Uistipiiciepsebiaciemiacninaeantinisieidindialaccusres 17, 20

Burton v. Wilmington Parking Authority, 365 U.S.

Ta CED ‘sohinanecena endenesionatnintaiebbiieimisiiniuiniiiiniimel 13

Cantwell v. Connec cient, 310 U.S. 296 (1940) oo. 13

Carter v. Stanton, 405 U.S. 669 (1972) woe 20

Chicago, Burlington and Quiney Ry. Co. v. Depart-

ment of Revenue, i7 Ill. 2d 376 (1959) wo. 15

Chicago Welfare Rights Organization v. Weaver, 56

Ill. 2d 33 (1973), appeal dismissed, 417 U.S. 962

TUPTTEDesdismiehdaciemiudeasasepnesianesantantuaiassesanddaaiddiselainiisaniiadlid 20

Chickering v. Faile, 38 Ill. 342 (1865) oo... eeee 14

Conway v. Cable, 37 Ill. 82, 89 (1865) oo... eee 20

County Collector v. Bostwick, 33 Ill. 2d 74 (1965) .... 6

Damico v. California, 389 U.S. 416 (1967)

Evans v. Newton, 382 U.S. 296 (1966) ..............c0. 13

Ex Parte Virginia, 100 U.S. 339 (1879)

Fuentes v. Shevin, 407 U.S. 67 (1972)

Iowa-DesMoines National Bank v. Bennett, 284 U.S.

Cn BES Tiron AT NE Sng a ey 12

Lynch v. Household Finance Corp., 405 U.S. 538

(1972)

Marsh vy. Chestnut, 14 Ill. 223, 227-228 (1852) .000000..... 20

McNeese v. Board of Education, 373 U.S. 668 (1963) .. 20

ill

PAGE

Metealf v. Swank, 444 F. 2d 1353 (7th Cir. 1971)

vacated and remanded, 406 U.S. 914 (1972) ........0.. 20

Montana National Bank v. Yellowstone County, 276

ty Ge CRED tities

19

N.A.A.C.P. v. Alabama, 357 U.S. 449, 457-458 (1958) 20

Nordlund v. Lans, 31 Ill. 2d 477 (1964) oc eeeeeees 6

The ‘People v. Union Station Co., 388 Ill. 153, 163

FITEED <evsiseninecuscovnsisenssasesnneesitdicsemseansenenisiindiaislticusiatieeninnneets 12

People ex rel. Baird and Warner, Inc. v. Lindheimer,

Fe 8 eee 14

People ex rel. Cain v. Illinois Central Ry. Co., 33

Be Se I CN oewtiteritcrstinrnetsienssnrressesnnntinnsintnnviotrennita 15

People ex rel. Collector v. Redeo, 3 Ill. App. 3d

ee Cee BRR, TRIED centcentsnertseencisninindsentsineneenidingnen 14

People ex rel. Endicott v. Prother, 343 Ill. 437, 448-

Ge CED -kxcininnetentictsnceiinitiacsiiiemiateneadiiansimapusiaasinnidigeibediniass 20

People ex rel. Hillison v. Chicago Burlington and

Quincy Ry. Co., 22 Tl. 2d 88 (1961) ..........cecssseseees 15

Peo. ex rel. Kohorst v. G.M. & O R.R. Co., 22 Til. 2d

SURE TUTE siacinieniissiviicntnittnndesaniensisentianatieiatmnaientaiieninets 4,6

Peo. ex rel. Korzen v. Fulton Market Cold Storage

Company, 22 Ill. App. 3d 1088, 1091 (1st Dist.

STUD -denstasiieiineinitiigeaaainbeneaidaisseandiheanniiisliandlisiaestsivniodeamaninajbsiiinien 8

Peo. ex rel. Kutner v. Cullerton, 58 Ill. 2d 266

TERETE sscssinsiiisesistiahigeisehiseidibieideiediiiaiadaibaattakiemiaaitia 9, 10, 15, 16

People ex rel. Lord v. Wabash Ry. Co., 311 Ill. 579,

Ey CRIED siiivsstajeiteiaeiaisnabbauhdaibibasiadaidanneiniedinniianielinliaacan 20

People ex rel. Sanders v. Cairo, Vincennes and

Chicago Ry. Co., 249 Ill. 97 (1911) wn. ee eeeeeeeee 14

People ex rel. Schlaeger v. Ridge Country Club, 397

Bee TE UII D . cseasitunenintitsccciiecesessaniciancienincserintniiinimeneniions 14

People ex rel. Voorhees v. Chicago, Burlington and

Quincy Railroad Co., 386 Ill. 200, 202-203 (1944) .. 14

iv

PAGE

Raymond vy. Chicago Union Traction Co., 207 U.S. 20

PUTED scnesunpencscnnssinnisunienidindetiaitianminpadiniatniisaaasammanniile 12

Shelley v. Kraemer, 334 U.S. 1 (1948) ...... 10, 13, 14

Sioux City Bridge Co. v. Dakota County, 260 U.S.

SE III. Scrcsvssssibistsscvehcentetentesentniuecanadunibaiiimiaammaanie 12

Sniadach vy. Family Finance Corp., 395 U.S. 337

EEUU: secetticstisnensounbicnsiaduncdiptstistenediciamebecesteiimemmaaiaaniaanaial 13

SPOUTS WH. BUUIO, GIR TIE ccsctccteneecsscosessvescncssscnneses 12

Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350

CITE sadahiningninednninnienieiavetinaaeiniiaiaaanmaaal 12

Tuttle v. Bell, 377 I[ll. 510-512-513 (1941) Cert.

denied, $15 U.S. 815 (1942) ceeccssssccsseesssssssusssssssesseeeesee 15

CONSTITUTIONAL PROVISIONS

AND

STATUTES CITED

Fourteenth Amendment of the United States Con-

INTIID . -sivanisssansctnconinneuisinnnteenmmeitsiiaeansiammeniadbaamenl 2,12

Art. IX, $1 of the Illinois Constitution of 1870 ....

sshasiasehlieneeeaedenbeniaanemeniateaieiiataianniaiamitnnmandeteniidaiteiieleidtanniinal 4, 6, 9, 15

Art. IX, § 4(b) of the Illinois Constitution of 1970 ....

seiapinecetaddenteciemtaiaiesdimichdbdaieibibiinedaabinsdininn siiideanssiisaiadditein ae anne 9, 15, 17

Sections of the Illinois Revenue Act of 1939, as

amended, as codified in 120 Ill. Rev. Stat. (1939):

RE ECARD ie LEMMON TE NTT Howey” is 4

aaa a 4, 6, 7, 9, 15. 16

EINE ‘decspeuviceionenensioqrententianiniiemniedasainitiaammmainaiaeendaanaaaeD 3

ANE EDEN 4

ne ne RE ae eA PND hens TD =P +

LTT CMY HONE Mn B er nae rey nSST SF 4

I” slic baillasteidenidensaneteisaeatendsiantisemstiensnidiaiiddinea niente 4

EP sisisidhaeuntiaaiaiiatinimupiipamstitiianaieadddiaieadihiente toa eae 4

SE Maniaidensdinioiiensaimdginntisiendanitatienantiaanticn cena 3, 4, 5, 13

SPIE sadbhadcelniatiipilandasbiosiastedindiatdhienidenceiendieacan tin cee 5, 13, 14

In THE

SUPREME COURT OF THE UNITED STATES

OctToser Term, 1976

No.

PEOPLE OF THE STATE OF ILLINOIS, EX-REL.

BERNARD KORZEN, COUNTY TREASURER AND

EX-OFFICIO COUNTY COLLECTOR OF COOK

COUNTY, ILLINOIS,

Respondent,

vs.

FULTON MARKET COLD STORAGE COMPANY,

an Illinois corporation,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

To The Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the United

States:

Petitioner respectfully prays that a Writ of Certiorari

issue to review the opinion and order of the Supreme

Court of Illinois entered January 26, 1976.

OPINIONS BELOW

The opinion of the Cireuit Court of Cook County,

Illinois, has not been officially reported. The opinions

anion

of the Appellate and Supreme Courts of Illinois are

officially reported, respectively, at 22 Ill. App. 3d 1088

(Ist Dist. 1974) and 62 Ill. 2d 435 (1976). Copies of these

opinions are set out in the Appendix hereto.

JURISDICTION

The Illinois Supreme Court rendered its judgment and

opinion on January 26, 1976, and denied a timely filed

petition for rehearing on March 25, 1976. A copy of that

order is set out in the appendix. This petition is filed

within 90 days from March 25, 1976. Jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

(1) Whether the Illinois Supreme Court abridged Peti-

tioner’s rights of due process and equal protection by

enforeing against it an admittedly discriminatory tax.

(Il) Whether that Court’s application of the doctrine

of exhaustion of administrative remedies denied Peti-

tioner’s rights of due process and equal protection.

(III) Whether exhaustion of administrative remedies

is a condition precedent to assertion of federal constitu-

tional rights in State proceedings.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States Con-

stitution provides in relevant part:

“Section 1. No State... shall... deprive any per-

son of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

_—

Article IX, § 1 of the Illinois Constitution of 1870 pro-

vides in relevant part:

“The general assembly shall provide such revenue

as may be needful by ievying a tax, by valuation,

so that every person and corporation shall pay a

tax in proportion to the value of his, her or its prop-

erty.”

Article IX, §4(b) of the Illinois Constitution of 1970

provides in relevant part:

“Subject to such limitations as to the General

Assembly may hereafter prescribe by law, counties

with a population of more than 200,000 may classify

or continue to classify real property for purposes

of taxation. . .”

Chap. 120, Lill. Rev. Stat. (1969) §501 provides, in rele-

vant part:

“Real property shall be valued as follows: (1) Each

tract or lot of real property shall be valued at its

fair cash value, estimated at the price it would bring

at a fair, voluntary sale.”

All other statutory provisions involved are set forth

in the appendix.

STATEMENT OF THE CASE

Real estate taxes in Illinois are levied and become a

lien on property as of January Ist of each year. 120 IIl.

Rev. Stat. § 508a' (1969). The tax is collected in two in-

stalments in the following year. § 675. Each of the

102 counties has its own assessment and collection offi-

cials and the procedures for assessment and collection of

‘All § references hereafter are to Chapter 120 Ill. Rev.

Stat. (1969).

=

the taxes are found in the Illinois Revenue Act of 1939,

as amended.’

Real property in Cook county is assessed by an

elected assessor. §487. In 1969, for purposes of assess-

ment real property was to be valued “at its fair cash

value, estimated at the price it would bring at a fair,

voluntary sale”. §501. In order to correct errors in as-

sessment the Board of Appeals of Cook County was

authorized “on complaint that any property is over as-

sessed or under assessed .. . (to) review and order such

assessment corrected.” §594. In order that disparities in

the levels of assessment of property between counties

might be eliminated and property throughout the state

assessed uniformly at 100% of fair cash value, the State

Department of Revenue was required each year to deter-

mine a multiplier for each county to be applied uniformly

to the assessments in such county. ,§627, 630. Taxes

were then extended on the equalized valuation of each

parcel in the county at rates certified by the County

Clerk. §§642, 648.

The full fair cash value of all property as ascertained

in accordance with the Revenue Act is the assessed valua-

tion for all purposes of taxation prescribed in the Con-

stitution. §643. The Constitution of 1870 (in force until

supplanted by the Constitution of 1970 on July 1, 1971)

required uniformity of assessments. Art. IX §1. See also

Cireuit Court’s order (App. 6a).

In 1969, an Illinois taxpayer who suffered from a dis-

eriminatory assessment could obtain judicial relief only

by paying his taxes in full under protest, 4675, and there-

*The Illinois Revenue Act of 1939, as amended, Sees.

1 through 330 are found as §§ 482-811 of Chapter 120, Ill.

Rey. Stat. (1969).

Ce ee ee mee

—

after filing objections (which serve as the taxpayer’s

initial pleading in this statutory procedure) to the County

Collector’s Annual Application to the Cireuit Court of

the County for judgment fixing the correct amount of

taxes paid under protest. §716. Section 716 requires

the Court to enter judgment for the Collector for the

correct taxes “as shall appear to it to be due” and

to enter judgment on behalf of the objector-taxpayer for

any refund to which he is entitled. Until the Court

enters judgment the taxes paid under protest are held

by the Collector “in suspense”. §675.

Petitioner paid its 1968 and 1969 real estate taxes in

the amounts of $98,290.00 and $108,128.00 respectively

under protest and filed its objections to the 1968 and

1969 Applications of the County Collector in the Cirenit

Court of Cook County. The County Collector moved to

dismiss the 1969 objections on the ground that petitioner

had not exhausted its administrative remedies by com-

plaining to the Board of Appeals for 1969. The mo-

tion was taken with the case and the objections for both

years consolidated for trial (App. 2a).

Upon trial the Court found that petitioner’s property

had been assessed and equalized for both years at 100%

of fair cash value (RI148,° App. 2a-3a), and that the

assessment “was a very accurate, a very good assess-

ment” (R150). The Court, however, also found that

property generally in Cook County was assessed and

equalized at 42% of fair cash value (R151, App. 3a), and,

accordingly, that a disparity of 240% existed between

the level of assessment of petitioner’s property and that of

*The designations R_ ........ are to the report of pro-

ceedings incorporated into the record on appeal. The

trial judge read his original findings and conclusions into

the record.

=

property generally (R151, App. 5a). The trier also

found a continuity of purpose for not less than six

years on the part of the assessor to keep certain classes

of property assessed at one level and others at a lower

level contrary to the State Constitution and Revenue Act

(requiring uniform assessment of all property at 100%

of fair cash value), and that the disparities were wide-

spread (App. 4a-6a). The trial court concluded that the

foregoing constituted a constructive fraud, and an in-

tentional, wilful and systematic discrimination against

Petitioner (App. 5a-6a) on the part of the assessing

officials ia violation of State Constitutional and statutory

requirements. Il]. Const. (1870) Art. IX 4 1; § 501 (App.

6a).

The 1968 objections resulted in judgment for Petitioner

for a refund of $56,510.00 and for the Collector for

$40,000.00. In the 1969 objections the Court held that

Petitioner would have been entitled to a refund of ap-

proximately $62,000.00‘ of the $108,000 in taxes it had

paid under protest for that year but that it had not

filed a complaint before the Board of Appeals that

year and thus had not exhausted its administrative reme-

dies. Accordingly the Court entered judgment for the

Collector in the sum of $108,128, the full amount paid by

Petitioner on the authority of Nordlund vy. Lans, 31 II.

2d 477 (1964) and County Collector v. Bostwick, 33 Tl.

2d 74 (1965). The judgment for the Collector included

the illegally exacted moiety of $62,000.00.

‘The refund was the difference between the $108,000 in

taxes extended against Petitioner’s property and what

they would have been had all property in Cook County

heen assessed and equalized at 100% of fair cash value.

a ae 3 - rel Kohorst v. G.M. & O. R.R. Co., 22 Tl. 2d

ae pee

Petitioner alleged in its Objections for 1969 that it did

not file a complaint before the Board of Appeals in 1969

for the reason that its property was then assessed at

70% of fair cash value, or at less than the 100% re. red

by statute (§501); that the customary multiplier of 1.45

of the Department of Revenue woulu raise its equalized

valuation to the 100% required by law; that the Board of

Appeals had authority only to correct an assessment and

had no authority to reduce its assessment; and that any

reduction would have been illegal.

Petitioner further alleged that it had filed a complaint

before the Board of Appeals in 1968 and had been told by

the Board it deserved no relief and the Board could give

it none.

Petitioner expressly asserted its federal constitutional

rights in its 1969 Objections by alleging that:

“12, * * * * Such action or failure to act on the part

of these public officials and bodies constituted a wilful

and intentional fraud upon Objector by requiring it to

pay approximately 2.4 times the taxes it would have

been required to pay had all property in Cook County

been assessed pursuant to the provisions of Section 20

and other applicable provisions of the Revenue Act.

The improper execution of the statutes by the Asses-

sor, the Board of Appeals and the Department of

Revenue defrauded Objector as a matter of law

and deprived it of its property, to wit: approximately

$60,000.00, without due process of law contrary to

the provisions of Article II and the 14th Amend-

ment of the State and Federal Constitutions, respec-

tively; denied Objector equal protection of the laws

contrary to the provisions of said 14th Amendment;

and further deprived Objector of the uniformity pro-

tection afforded it by Sec. 1 of Article 9 of the State

Constitution.

a * >.

— =

15. Such failure of the Board of Appeals of Cook

County and of the Department of Revenue lawfully

to assess or to cause the lawful assessment of prop-

erty generally in Cook County further evidences

a wilful and intentional violation on their part of the

Revenue Act, the uniformity provision of the Consti-

tution of Illinois and the due process and equal pro-

tection clauses of the State and Federal Constitu-

tions, statutes and constitutions which the said public

Officials and the Department head officials swore to

uphold.”

The trial Court failed to address these federal] issues.

Instead, notwithstanding its own finding that $62,000.00

of Petitioner’s total tax of $108,000.00 was illegal and

unconstitutional under State statutes and the Constitu-

tion of 1870, the trier entered judgment in the full amount

for the Collector.

The Illinois Appellate Court reversed on the grounds

that Petitioner was not required to exhaust its adminis-

trative remedy before the Board of Appeals since that

Board had no authority to reduce Petitioner’s assessment

below the statutory level of 100% of fair cash value.

Peo. ex rel Korzen vy. Fulton Market Cold Storage Com-

pany, 22 Ill. App. 3d 1088, 1091 (1st Dist. 1974). Having

decided the appeal on these grounds, the Appellate Court

was not required to and did not reach the federal con-

stitutional questions raised below nor Petitioner’s claim

on appeal that entry of judgment by the trier for the

Collector in an amount which included the illegal moiety

of the 1969 taxes constituted forbidden state action in

violation of Petitioner’s rights under the Fourteenth

Amendment. Petitioner, however, briefed and argued these

points in the Appellate Court (See Points II, IIT and IV

of Petitioner’s brief to the Appellate Court).

po ewe

The Illinois Supreme Court reversed the Appellate

Court and affirmed the trial Court’s judgment for the

Collector. 62 Ill. 2d 443 (1976). Without reaching the

federal constitutional issues, the Illinois Court held that

in Peo. ex rel Kutner vy. Cullerton, 58 Ill. 2d 266 (1974)

it had ruled that Article IX, §4(b) of the 1970 Con-

stitution (effective July 1, 1971) ratified the de facto

classification scheme of assessment which existed in Cook

County prior to 1970, and accordingly the Board of

Appeals had authority to consider whether Petitioner’s

property was correctly classified and whether its 1969

assessment was at the same percentage of fair cash value

as other property in its classification. Hence, the Court

concluded, the Board of Appeals might have reduced Pe-

titioner’s assessment to less than the 100% level man-

dated by § 501 and to a level different from that of other

classes of property, contrary to the State Constitutional

requirement of uniformity. Ill. Const. (1870) Art. IX

§1. Judgment was therefore properly entered by the

trial Court for the full amount of the tax paid (ine!uding

the illegal moiety) on the grounds that Petitioner had

thus failed to exhaust the administrative remedy.

Although Petitioner again raised and briefed its federal

constitutional claims (See Points VI and VII of Pe-

titioner’s brief to the Illinois Supreme Court), the Illinois

Supreme Court failed to reach them.

In its petition for rehearing, Petitioner contended that

the decision of the Illinois Supreme Court worked a fur-

ther and separate deprivation of procedural and _ sub-

stantive due process by denying its right to be assessed

and taxed under the laws and constitution as they existed

in 1969 (See Point II of Petitioner’s petition for rehear-

ing). The petition was denied without opinion or comment

on March 25, 1976.

— —

Reasons for Granting the Writ

By rendering judgment for the collector exacting a

tax in its major portion illegal and unconstitutiona!, the

[Illinois Supreme Court has refused to follow this Court’s

decision in Shelley v. Kraemer, 334 U.S. 1 (1948), has au-

thorized the use of the State’s judicial power to deprive

its citizens of federal constitutional rights; and, if its

decision is permitted to stand, has established a pre-

cedent for use of a state’s judicial power to enforce an

unjust system of taxation upon its citizenry.

In addition, by applying People ex rel. Kutner v.

Cullerton, 58 Ill. 2d 266 (1974) to this case, the Illinois

Court has, contrary to decisions of this Court, abridged

Petitioner’s rights to equal protection and substantive due

process by denying Petitioner the right to be assessed

and taxed in 1969 under the laws and State constitution

in effect at that time.

I.

THE DECISION BELOW DENIES DUE PROCESS AND

EQUAL PROTECTION BY ENFORCING AN ADMIT-

TEDLY DISCRIMINATORY TAX.

The following findings of the trial Court form the basis

upon which Petitioner’s constitutional claims must be con-

sidered: (App. la-6a)

(1) Petitioner’s property was assessed and equalized

in 1969 at 100% while property generally in Cook

County was assessed and equalized at 40% of fair

cash value.

. rt’ ° . .

(2) The evidence showed a continuity of purpcse on

the part of the assessing officials to assess property

—

of different classes at different percentages of fair

cash value, in violation of Art. [X §1 of the State

Constitution, and to assess property generally at

a level far below 100% of fair cash value in vio-

lation of §501 of Chap. 120, Ill. Rev. Stats.

(3) There is an intentional, willful and systematie dis-

crimination against Petitioner on the part of the

assessing officials in permitting the level of assess-

ment in Cook County to be and remain substan-

tially below the 100% level required by the Revenue

Act while Petitioner’s property is at 100%; and in

permitting the assessment of several classes of

property and individual properties within the classes

at different levels in disregard of the (State) con-

stitutional and statutory requirements.

(4) Objector filed a complaint before the Cook County

Board of Appeals in 1968. No change in assessment

was made. It did not file a complaint in 1969. Its

assessed valuation in 1969 was at 65% and after

equalization at 100% of its fair cash value.

(5) But for the fact it failed to exhaust its administra-

tive remedy, Petitioner would be entitled to a refund

of the illegal moiety of $62,000.00 of the $108,000.00

in taxes it paid under protest.

On their face the Findings, Conclusions and Order of

the trial Court present two of the three basic federal issues

at stake in this petition. The first is the violation of Peti-

tioner’s federal rights by an intentional, willful and sys-

tematic discrimination against Petitioner on the part of

the assessing officials whereby its property, though as-

sessed and equalized de jure at 100% of fair cash value,

—

was nonetheless assessed at 2.4 times the level of assess-

ment of property generally. (App. 5a-6a)

Inequities in real estate tax assessments, the Llinois

Court holds, deny Fourteenth Amendment rights of due

process and equal protection. The People v. Union Sta-

tion Co., 383 Ill. 153, 163 (1943). And this Court has held

that the state in the exercise of its taxing power is sub-

ject to the requirements of the equal protection and due

process clauses of the Fourteenth Amendment, and may

not through its taxing officials intentionally, invidiously

or systematically single out a tax payer for discriminatory

treatment. Raymond v. Chicago Union Traction Co., 207

U.S. 20 (1907); Sunday Lake lron Co. vy. Wakefield, 247

U.S. 350 (1918); Zowa-DesMoines National Bank vy. Ben-

nett, 284 U.S. 239 (1931); Sioux City Bridge Co. vy. Dakota

County, 260 U.S. 441 (1923).

Although the trial court made no particular findings

with respect to Petitioner’s federal rights, timely asserted

in its objections, violations of federal equal protection and

due process are patent in the findings as made. Indeed,

the language used by the trier in these findings tracks that

of this court in Snowden v. Hughes, 321 U.S. 1, where it

said:

“Another familiar example [of a denial of equal pro-

tection] is the failure of state taxing officials to assess

property for taxation on a uniform standard of valua-

tion as required by the assessment laws. It is not

enough to establish a denial of equal protection that

some are assessed at a higher valuation than others.

The difference must be due to a purposeful discrimi-

nation, which may be evideneed, for example, by a

systematic under-valuation of the property of some

taxpayers and a systematic over-valuation of the prop-

erty of others, so that the practical effect of the official

=— =

breach of law is the same as though the discrimination

were incorporated in and proclaimed by the statute.”

321 U.S. at 9.

The second federal issue apparent on the face of the

trial court’s order is the use of state judicial power to

enter judgment for the Collector for the entire tax after

the court’s finding that almost 60% of the tax paid by

Petitioner was illegally, fraudulently and unconstitutionally

(State) exacted.

It is well settled that the proseriptions of the Four-

teenth Amendment, applicable only to so-called state action,

Burton v. Wilmington Parking Authority, 365 U.S. 715

(1961), reach activities of state courts. American Federa-

tion of Labor v. Swing, 312 U.S. 321 (1941); Cantwell v.

Connecticut, 310 U.S. 296 (1940). Thus, judicial enforce-

ment of constitutionally deficient statutes is forbidden,

Fuentes v. Shevin, 407 U.S. 67 (1972), Sniadach v. Family

Finance Corp., 395 U.S. 337 (1969); Cf. Lynch v. House-

hold Finance Corp., 405 U.S. 538 (1972), as is enforce-

ment of impermissible common law rules, Ex Parte Vir-

gina, 100 U.S. 339 (1879) and agreements and practices

which, if required by statute or ordinance, would offend —

constitutional requirements. Shelley v. Kraemer, 334 U.S.

1 (1949); Barrows vy. Jackson, 346 U.S. 249 (1953); Cf.

Evans v. Newton, 382 U.S. 296 (1966). Such judicial aetiv-

ity is no less forbidden because it affects property rights

as opposed to personal rights. Lynch v. Household Finance

Corp., supra.

Under Illinois law the only method of obtaining judicial

relief from illegal and fraudulent action on the part of

assessment officials is by payment of the tax in full, $675,

and by filing objections in the special statutory proceeding

established by $716. This latter section requires the court

to enter judgment for the taxpayer for the amount of any

a won

refund and for the Collector for the balance of the tax

paid under protest. The tax paid under protest is in

“limbo” pending judgment of the court in favor of the

parties (the taxpayer and the Collector) in accordance with

the right of the case as it may be. §716. Cf. People ex rel.

Schlaeger v. Ridge Country Club, 397 Ill. 127 (1947);

People ex rel. Collector v. Redco, 3 Ul. App. 3d 917 (3d

Dist. 1972). Judgment cannot be entered until the exact

amount due the county is fixed, Chickering v. Fate, 38

Il]. 342 (1865); such amount may extend only to the legal

moiety, People ex rel. Sanders v. Cairo, Vincennes and

Chicago Ry. Co., 249 Til. 97 (1911): and, until judgment,

the funds paid under protest are held for the protection

of the taxpayer. People ex rel. Voorhees v. Chicago, Bur-

lington and Quincy Railroad Co., 386 Til. 200, 202-203

(1944); People ex rel. Baird and Warner, Inc. vy. Lind-

heimer, 370 Ill. 424, 429-430 (1939).

It follows that until judgment was entered by the trial

court against Fulton in an amount which included the

illegal moiety, the Assessor’s fraud was not perfected, the

taking of Fulton’s property without due process was not

completed and denial of equal protection of the laws was

not finalized. In short, “but for the active intervention of

the state courts, supported by the full panoply of state

power”, Shelley v. Kraemer, 334 U.S. at 19, the Assessor’s

unconstitutional discrimination against Fulton would not

have been possible. Because the order of the Illinois

Supreme Court thus makes the court the very instrument

by which Fulton’s rights are denied, it follows that the

order is constitutionally impermissible and must be

vacated :

State action, as that phrase is understood for the pur-

poses of the Fourteenth Amendment, refers to exer-

tions of state power in all forms. And when the effect

=

of that action is to deny rights subject to the protec-

tion of the Fourteenth Amendment, it is the obligation

of this Court to enforce the constitutional commands.”

334 U.S. at 20.

II.

THE EXHAUSTION DOCTRINE WAS UNCONSTITU-

TIONALLY APPLIED BY THE COURT BELOW.

Notwithstanding the decision in People ex rel Kutner

v. Cullerton, 58 Ill. 2d 266 (1974) and the retroactive ap-

plication of Article IX, § 4(b) of the 1970 Illinois Con-

stitution ordered in that case, there can be no doubt

whatever what the law was in 1969 relevant to Petitioner’s

rights in this case. In 1969 the State Constitution re-

quired that all taxes be uniformly levied, Til. Const. (1870),

Article IX, § 1; Tuttle v. Bell, 377 IM. 510, 512-513 (1941),

cert. denied, 315 U.S. 815 (1942); Apex Motor Fuel Co.

v. Barrett, 20 Ill. 2d 395, 401 (1960); the Illinois statutes

required that all real estate be valued at “fair cash

value”, § 501, and made it a crime punishable by imprison-

ment of up to one year for a member of the Board of Ap-

peals to set a valuation at less than the 100% of fair

cash value required by §§ 501, 803; and the Illinois

Supreme Court consistently and without exception re-

quired that the 100% provision of § 501 be observed

literally. People ex rel. Cain vy. Illinois Central Ry Co.,

33 Tll. 2d 232 (1965): People ex rel Hillison v. Chicago

Burlington and Quincy Ry Co., 22 Ill. 2d 88 (1961);

Chicago, Burlington and Quincy Ry. Co. v. Department

of Revenue, 17 Ill. 2d 376 (1959). Hence the Constitu-

tion and law of Illinois in 1969 as definitively interpreted

by the highest state court unequivocally required that

assessments be made at 100% of fair cash value and,

conversely, forbade the establishment of assessments un-

der 100% of fair cash value.

— 16—

In view of the foregoing, and the universal rule that

exhaustion is not required where the administrative agency

is powerless to grant the relief required, it is clear that

Petitioner was not obligated to ask the Board of Appeals

for relief from the Assessor’s discrimination. Although

manifestly discriminatory, Petitioner’s assessed valna-

tion in 1969 (i.e. 70% of fair cash value (App. 2a.) )

was nonetheless well below the 100% level mandated

by § 501 and application of the customary multiplier would

not have raised that assessment to more than 100% of

fair cash value. Hence while it was and s*ill is true that

Petitioner needed redress from the Assessor’s unconsti-

tutional practices in 1969, it was and is also true that

the Board of Appeals’ authority in 1969 under § 594 to

“correct” Petitioner’s assessment was limited to the power

to set Petitioner’s assessment at 100% of fair cash value

and thus, under the circumstances, it lacked authority to

aid Petitioner. As the Illinois Appellate Court observed:

“(T|jhe Board upon complaint had no authority to

reduce objector’s assessment to anything less than

fair cash value ... Indeed, had objector filed a com-

plaint, the Board, pursuant to .. . [4501] may have

been obligated to raise objector’s assessment to fair

cash value. Such action, together with the applica-

tion of the equalizing multiplier, would only have

aggravated objector’s plight since its property was

already assessed at a value above that of the other

property in the county and would not have resulted

in raising the assessments on those properties which

are underassessed.” 22 Ill. App. 3d at 1091.

Indeed, inasmuch as it was a crime in 1969 to set a real

property valuation at less than 100%, §§ 501, 803, Peti-

tioner, had it sought relief from the Board of Appeals in

1969, would have been suborning a crime.

The court below, however, argues that its ruling in

People ex rel Kutner v. Cullerton, supra, has “changed”

= =

the law as it was in 1969 and that Petitioner’s conduct in

1969 should be governed by this retroactive change. In

effect the Court reasons that both Petitioner and the

Board of Appeals in 1969 should have anticipated that

a new Constitution would be adopted in Illinois in 1971,

that it would contain a provision (i.e. Article LX, § 4(b) )

permitting certain tax practices (i.e. classification of

property for purposes of taxation) theretofore forbidden

by settled law, and that the State Supreme Court would

apply that provision retroactively. Thus the Court be-

low held:

“There is no question that prior to the adoption of

the 1970 Constitution there had been de facto classi.

fication of real property in Cook County for pur-

poses of taxation ... and that the practice was rati-

fied by the provisions of section 4(b) of article LX of

the Constitution. In determining whether objector’s

property was overassessed the Board of Appeals was

not restricted to consideration of the sole question

whether the assessed valuation exceeded the fair

eash value. It could also have considered whether

the real estate was correctly classified and whether

the assessment was at the same percentage of fair

cash value as was appled to other property within

the appropriate classification.” 62 Ill. 2d at 447-448

Manifestly the unavoidable effect of this “reasoning”

is to deny Petitioner equal protection of the tax laws as

they existed in Illinois in 1969 and to take Petitioner’s

property without fair notice of the substantive and pro-

cedural rules to be applied against it contrary to the

requirements of due process. In Brinkerhoff-Faris Trust

and Savings Co. v. Hil, 281 U.S. 673 (1929) this court

considered a situation virtually identical to that at bar.

There taxpayer asked the State Court to enjoin collection

of an allegedly discriminatory tax without first seeking

—_—

relief from the County or State board of equalization,

the State Supreme court having previously ruled that

such relief was not available therefrom. The authority

of that earlier ruling had not been doubted until over-

ruled by the State Supreme Court in Brimkerhoff-Faris

but by then it was too late for the taxpayer to avail

itself of the newly found remedy. There, as in the present

case, the taxpayer, when confronted with the surprise

decision of the state court, urged on petition for re-

hearing that the retroactive application of the new deci-

sion transgressed the commands of the Fourteenth Amend-

ment. This court reversed because the decision below

“denied to the plaintiff due process of law—using that

term in its primary sense of an opportunity to be heard

and to defend its substantive rights”. 281 U.S. at 678.

Speaking for the unanimous court, Mr. Justice Brandeis

said:

“If the judgment is permitted to stand, deprivation

of plaintiff's property is accomplished without its

ever having had an opportunity to defend against

the exaction. The state court refused to hear the

plaintiff’s complaint and denied it relief, not be-

cause of lack of power or because of any demerit

in the complaint, but because, assuming power and

merit, the plaintiff did not first seek an administra-

tive remedy which is now open to it. Thus, by

denying to it the only remedy ever available for

the enforcement of its right to prevent the seizure

of its property, the judgment deprives the plain-

tiff of its property.

“If the result above stated were attained by an

exercise of the state’s legislative power, the trans-

gression of the due process clause of the 14th Amend-

ment would be obvious. ... The violation is none the

less clear when the result is accomplished by the

state judiciary in the course of construing an other-

wise valid . . . state statute. The federal guaranty

—

of due process extends to state action through its

legislative, executive, or administrative, branch of

government.

. . i

We are not now concerned with the rights of the

plaintiff on the merits . . . Our present concern is

solely with the question whether the plaintiff has

been accorded due process in the primary sense,—

whether it has had an opportunity to present its

ease and be heard in its support. Undoubtedly, the

state court had the power to construe the statute

dealing with the state tax commission; and to re-

examine and overrule [its earlier decision]. Neither

of these matters raises a federal question; neither

is subject to our review. But, while it is for the

state courts to determine the adjective as well as

the substantive law of the state, they must, in so

doing, accord the parties due process of law. Whether

acting through its judiciary or through its legisla-

ture, a state may not deprive a person of all existing

remedies for the enforcement of a right, which the

state has no power to destroy, unless there is, or was,

afforded to him some real opportunity to protect it.”

281 U.S. 679-682

In Montana National Bank v. Yellowstone County, 276

U.S. 499 (1928) this court was equally firm in refusing

to recognize the exhaustion doctrine as a valid defense

to constitutional claims when administrative relief was

not available at the time resort to the administrative

agency was indicated:

“It is urged that plaintiff in error may not maintain

this action because of its failure to apply to the

county board of equalization for an administrative

remedy. We do not stop to inquire whether under any

circumstances such remedy was open to the taxpayer,

for the short answer is that the decision of the

Supreme Court of Montana in the Rogers Case would

have rendered any such application utterly futile since

— 99 —

the county board of equalization was powerless to

grant any appropriate relief in the face of that con-

clusive decision. 276 U.S. at 505.

Cf. N.A.A.C.P. v. Alabama, 357 US 449, 457-458 (1958).

“xcepting the decision below, the Lllinois Supreme Court,

too, has from its earliest years insisted upon procedural

fairness in tax matters when new legislation or rulings

affect pre-existing rights. Cf. Marsh v. Chesnut, 14 UL

223, 227-228 (1852); Conway v. Cable, 37 Ul. 82, 89

(1865); People ex rel. Endicott y. Prather, 343 Ill. 4387,

448-449 (19351); People ex rel. Lord y. Wabash Ry. Co.,

311 Ill. 579, 583-584 (1924). It is therefore clear that

the court below, in refusing Petitioner relief for a sup-

posed failure to exhaust an administrative remedy added

a procedural deficiency to the substantive deprivation re-

sulting from the Assessor’s discriminatory assessment

and for this reason must be reversed. Brinkerhoff-Faris

Trust and Savings Co, vy. Hill, supra.

ITI.

THE EXHAUSTION DOCTRINE DOES NOT BAR EN-

FORCEMENT OF THE RIGHTS HERE IN ISSUE.

Even if considerations of Federal due process did not

preclude use of a State’s common law exhaustion doctrine

to frustrate enforcement of Petitioner’s [Fourteenth

Amendment rights, this Court’s rulings in Carter v. Stan-

ton, 405 U.S. 669 (1972); Damico vy. California, 389 U.S.

416 (1967); McNeese v. Board of Education, 373 U.S. 668

(1963); and Metcalf v. Swank, 444 F 2d 1353 (7th Cir.

1971) vacated and remanded, 406 U.S. 914 (1972) would.

And unless this Court is prepared to hold that State

Courts may be less zealous than Federal Courts in pro-

tecting Federal constitutional claims, contra, Chicago Wel-

fare Rights Organization v. Weaver, 56 Ill. 2d 33 (1973),

—-

~~

_— Po

appeal dismissed, 417 U.S. 962 (1974),° the decision be-

low should be summarily set aside on authority of these

cases.

CONCLUSION

As was Dean Pound 70 years ago, our profession is

today much concerned with popular dissatisfaction with

the administration of justice. Consider, then, the dis-

satisfaction, the disbelief of Petitioner when it learned

in 1976 that in 1969 its attorney should have violated

his own oath to uphold the Constitution and laws of

Illinois and used his skills to persuade the Board of

Appeals to violate their similar oaths by subverting the

statutes and state constitutional provisions governing

assessments; when told that a constitutional convention

as yet uncalled would in a later year, with the assistance

of the highest court of the state, decree that what was

unlawful had been, in fact, lawful and that one who

abided by the laws as then written would, because it so

abided, be severely penalized and its attorney rebuffed

by the same court which licensed him because in honor

he would not suborn a violation of the law.

Wherefore, Petitioner respectfully prays that a Writ

issue,

Respectfully submitted,

James L. Fox anp

DonaLp P. CoLLETon

33 North Dearborn Street

Chicago, Llinois 60602

Counsel for Petitioners

*This case of course is distinguishable in that admini-

strative relief there was easily and frequently had whereas

here the relief required by Petitioner was forbidden by law.

—

APPENDIX

IN THE CIRCUIT COURT OF COOK COUNTY,

LLLINOIS

COUNTY DEPARTMENT — COUNTY DIVISION

IN THE MATTER OF THE APPLICATION OF

BERNARD KORZEN AS COUNTY TREASURER AN?

EX-OFFICIO COUNTY COLLECTOR OF COOK

COUNTY, ILLINOIS, FOR JUDGMENT AND ORDER

OF SALE AGAINST LANDS AND LOTS UPON

WHICH THE TAXES REMAIN DUE AND UNPAID

FOR THE YEAR 1969 AND FOR JUDGMENT FIXING

THE CORRECT AMOUNT OF ANY TAX PAID UN-

DER PROTEST FOR THE YEAR 1969.

PEOPLE OF THE STATE OF ILLINOIS, EX-REL.

BERNARD KORZEN, COUNTY TREASURER AND

EX-OFFICIO COUNTY COLLECTOR OF COOK

COUNTY, ILLINOIS,

RELATOR

VS.

FULTON MARKET COLD STORAGE COMPANY,

an [llinois corporation,

OBJECTOR

1969 Objection No. 61

FINDINGS OF FACT, CONCLUSIONS OF LAW

AND ORDER

After trial of the issues raised by Objections of Fulton

Market Cold Storage Company, the court, having econ-

sidered the evidence and the arguments of counsel and

the motion to dismiss filed by the Relator, makes findings

of fact and reaches conclusions of law as follows:

—

FINDINGS OF FACT

(1) Fulton Market Cold Storage Company, the Objec-

tor, is an Illinois corporation which on January 1, 1969

owned an improved parcel of real estate known as 1000

West Fulton Market in Chicago, Illinois. The property

is in West Township, assessment district No. 3, and the

last quadrennial vear for this district was 1966.

(2) The subject property has Permanent Index No.

17-08-411-001. In the quadrennial year, the Assessor of

Cook County fixed the assessed valuation at $1,080,785,

and the same assessed valuation obtained for 1969. In

1969, the Department of Revenue certified an equalization

factor of 65.79% for Cook County and a multiplier of

1.52. The equalized valuation for 1969 for the subject

property was $1,642,795.

(3) Objector filed its Complaint before the Board of

Appeals of Cook County for 1968. No change in assess-

ment was made by the Board. It did not file a Complaint

before said Board for 1969. The assessed valuation of

Objector’s property for 1969, viz., $1,080,785, was sub-

stantially below its fair cash value, viz., approximately

65% thereof. The multiplier for 1969 was determined

by the Department of Revenue after the Board had

adjourned. Application of the 1969 multiplier for Cook

County of 1.52 resulted in an equalized valuation of

$1,642,793 for Objector’s property, approximately equal

to its then fair cash value.

(4) Pursuant to Section 716 of Chapter 120, Lllinois

Revised Statutes, the Objector paid its 1969 real estate

tax of $108,128.64 in full and under protest. The protest

related to 100% of the valuation and/or equalization

factor. Thereafter the corporation filed the within objec-

tion to the application of the County Treasurer for

judgment and order of sale of 1969 general taxes.

(5) The 1968 Objection proceedings by this taxpayer

were tried with the 1969 proceedings. By stipulation of

the parties, it has been agreed that the evidence intro-

duced by Objector would apply to both vears.

So a tne

—_—

(6) From the testimony of and other evidence pre-

sented by Objector’s appraiser, the Court finds a tentative

fair market value of $1,451,000 for Objector’s property

on January 1, 1969. Since the equalized assessed valuation

is $1,642,793, the Court finds that the difference in value

or in opinions of value is insufficient to justify the sub-

stitution of this Court’s opinion for the judgment of the

administrative authority. Accordingly, this Court finds

that the fair cash value of the premises for the year

1969 was $1,642,793; and that Objector’s property was

assessed and equalized at 100% of its full fair eash

market value.

(7) The median assessment ratio for all real estate

in Cook County for the five vears preceding the year

in question was 27% for 1964; 26% for 1965; 25% for

1966; 26% for 1967; and 22% for 1968. For 1969 it was

22%. The weighted average assessment ratio for the

year 1969 was 27.38%. After equalization, this is 41.62%.

The weighted average assessment ratio is the percentage

of fair cash value at which property generally in Cook

County is assessed.

(8) The median assessment ratios for the County for

the six vears including 1969 are at or below 27%. These

ratios show that real property generally in Cook County

is and has been assessed at a level far below the 100%

of full fair cash value required by Section 20 of the

Revenue Act. The ratio figures further establish a con-

tinuity of purpose on the part of the assessment officials

of the County to keep the overall assessment level below

that prescribed by the Aet.

(9) The sales ratio data of the Department of Reve-

nue show wide variations in the assessment levels, both

among the 17 classes into which the Department groups

the 44 classifications into which the Assessor assigns

real property in the County and within those classifica-

tions. Such variations over what is not less than a six-

year period establish a continuity of purpose on the

—

part of the assessment officials to assess property of

different classes at different percentages of fair cash

value. Such variations between the said several classes

of real property violate the provisions of Section 20 of

the Revenue Act and the uniformity provision of the State

Constitution.

(10) For six vears, the Assessor of Cook County

has had available to him the aforesaid statistical informa-

tion provided by the Department of Revenue. Despite the

availability of such information, he has made no effective

change or correction in either the overall level of assess-

ment, the disparate levels at which various classes of

property are assessed, or in the inequalities which exist

within the several classes. Such failure to use fhis readily

available data to correct the overall assessment level

and the class disparities establishes an intention on the

part of the Assessor to continue the violations of the

State Constitution and the Revenue Act, and work a

constructive fraud upon Objector.

(11) The Deartment of Revenue is charged with the

responsibility of making the assessment ratio studies and

thus has knowledge of the constitutional and statutory

violations inherent in the assessment procedures of the

local assessment officials. Further, said Denartment has

certified multipliers to Cook County for the six-year

period which fall far short of bringing the assessment

level up to 100% of fair cash value. The Department

has not used its powers under Sections 130, 131 and 140

of the Revenue Act to direct and supervise the assess-

ment for taxation of all real property in this State to

the end that all assessments be made relatively just and

equal; to order a reassessment of property and to cause

such reassessment to be made by lecal assessment officers

and eause the same to be substituted for the original

assessment; and, further, to order a reassessment when-

ever it shall appear to the Department that real property

in any county has not been assessed in substantial com-

pliance with law or has been unequally or improperly

assessed.

—_—

(12) The continuing noncompliance by the Department

of Revenue with the requirements of the Revenue Act

during the aforesaid period establishes an intention on

its part to permit the overall assessment ratio in Cook

County to remain substantially below 100% and te con-

tinue the disparities existing between and within the

various classes of property.

(13) There is an intentional, wilful and systematic

discrimination against Objector on the part of the Asses-

sor and the Department of Revenue in: (a) permitting

the level of assessment in Cook County, both before

and after equalization, to be and remain substantially

below the 100% level required by the Revenne Act while

Objector’s property is assessed and equalized at 100%

of fair cash value; and (b) permitting the assessment of

several classes of property and individual properties

within the classes at different levels in disregard of the

constitutional and statutory requirements.

(14) The level at which Objector’s property is assessed

is approximately 240% of the level at which property

generally in Cook County is assessed.

(15) Personal property, generally, in Cook County

is assessed and equalized at the same level as real

property.

CONCLUSIONS OF LAW

(1) The action of the Assessor of Cook County in

assessing property generally in Cook County for the

year 1969 at 27.38% of fair cash value and of the Depart-

ment of Revenue in equalizing property generally in

Cook County for that year at 41.62% of fair cash value

while assessing and equalizing Objector’s property at

100% of fair cash value constitutes a constructive fraud

upon Objector.

(2) The action of the Assessor and Department of

Revenue in assessing and equalizing property in Cook

—ba —

County so that the general levels of assessment, i.c., at

27.38% and 41.62% of fair cash value, respectively, and

in such manner that substantial disparities exist between

the assessment levels of the various classes of property

and between individual properties within these classes,

constitutes a violation of Sections 20, 130, 131 and 140

of the Revenue Act, Sections 501, 611, 612 and 621 of

Chapter 120, Illinois Revised Statutes: and deprives Ob-

jector of its rights under the uniformity provisions of

Section 1 of Article IX of the State Constitution. (1870)

(3) Had Objector filed its Complaint before the Board

of Appeals of Cook County for 1969, it would be entitled

to a refund of approximately $62,000 of the $108,128

in taxes it paid for said year, said refund being the

difference between its taxes as extended and what they

would have been had all property in Cook County been

assessed and equalized at 100% of fair cash value. Since it

did not do so, this Court is compelled to follow the rules

of the Supreme Court in Nordlund v. Lans, 31 [12d 477,

and in County Collector v. Bostwick, 33 Ul.2d 74, and deny

relief.

ORDER

It Is Therefore Ordered that judgment be entered in

favor of the Relator and against Objector in the sum

of $108,128.64. Since Objector has paid said amount under

protest, said judgment is hereby ordered satisfied in full

and the Relator shall take nothing further in these pro-

ceedings.

ENTER:

/s/ Mlegible

Judge

—

—

In re Appuication or County Treasurer or Cook County

—(THe Propte ex rel. Bernarp Korzen, County

Treasurer, Relator-Appellee, v. Fuuron Marker Cop

Storace Company, Objector-Appellant. )

(No. 59447; Reversed and remanded.)

First District (5th Division)—September 27, 1974.

1. TAXES (§ 216.10)—Roard of Appeals lacks authority

to reduce assessment to anything less than fair cash

value.

In view of Revenue Code provision establishing fair

cash value as standard of real property valuation for tax

purposes, County Board of Appeals, on owner’s complaint

that owner’s property, was assessed at higher level than

was other property in county, would lack authority to

reduce owner’s assessment to anything less than fair

eash value notwithstanding provision of Code authorizing

Board of Appeals in counties of 500,000 or more in-

habitants to order assessment corrected on complaint that

property was overassessed or underassessed (Tll. Rev.

Stat. 1969, ch. 120, pars. 501(1), 594).

2. TAXES (§ 481)—tar objection procedure is proper

remedy to pursue when assessment is contested.

When taxpayer properly complains that he is bearing

a disproportionate share of tax burden heeause of under-

valuation of other property in county, Illinois Supreme

Court has indicated that tax objection procedure is proper

remedy to pursue.

3. TAXES (§ 495)—measure of recovery when wnder-

valuation of other property is alleqed.

When taxpayer properly complains that he is bearing

a disproportionate share of tax burden beeanse of under-

valuation of other property in county, measure of re-

covery is difference between amount of taxes extended

against objector and amount which would have been

extended had locally assessed property been equalized

at 100% of full, fair cash value, and proper measure

=

of damages is not the amout of tax the objector would

have paid had its property been valued at same level

as other property in county.

4. TAXES (4 241)—when property owner need not file

complaint with Board of Appeals before seeking relief

in circuit court.

Realty owner which complained that its property was

assessed at a higher level than was other property in

county was not required to file complaint with County

Board of Appeals before seeking relief in cireuit court

by filing objections to county collector’s application for

judgment and sale of real property taxes.

Appeal from the Cirenit Court of Cook County; the

Hon. Robert J. Dempsey, Judge, presiding.

Moses, Gibbons, Abramson & Fox, of Chicago (James

L. Fox, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Sheldon

Gardner, Henry A. Hauser, Donald P. Smith and Alan

L. Fulkerson, Assistant State’s Attorneys, of counsel),

for appellee.

Mr. Justice Lorenz delivered the opinion of the court:

Upon application of the Cook County collector, the eir-

cuit court of Cook County, basing its decision on objec-

tor’s failure to exhaust its administrative remedies,

entered judgment against objector for 1969 real property

taxes. On appeal objector contends: (1) that it was not

required to exhaust its administrative remedies; (2) that

the judgment resulted in a deprivation of due process

of law; (3) that the Federal civil rights act is applicable;

and (4) that the civil rights act is not affected by the

exhaustion of administrative remedies doctrine.

Objector, after paying its taxes under protest as re-

quired by sections 194 and 235 of the Revenne Act of

1939 (Ill. Rev. Stat. 1969, ch. 120, pars. 675 and 716),

filed lengthy objections to the Cook County collector’s

a ee ee

te dat se ww

as ee

application for judgment and sale of its 1969 real property

taxes. The thrust of the objections was that because of

the improper assessment procedures utilized in Cook

County it was required to bear a disproportionate part

of the tax burden.

The Cook County collector filed a motion to dismiss

the objections for failure to exhaust administrative reme-

dies pointing out that the objector had not filed a com-

plaint regarding its 1969 assessment with the Cook

County Board of Appeals. Objector filed an answer to

the motion to dismiss alleging that the statute does not

require it to appear before the Board of Appeals; that

an appearance before the Board would be a useless act;

that the Board had adjourned prior to the determination

of the 1969 multiplier; and that the value of the property

is not at issue.

After an evidentiary hearing, the trial court made the

following determinations substantially in accord with the

allegations in the objections: (1) that the objector owns

improved property at 1000 West Fulton Market in Chica-

go; (2) that the fair market value of the property in

1969 was $1,451,000; (3) that for 1969 the property was

assessed at $1,080,785, or at about 65% of the fair eash

value, and was equalized at $1,642,793, which is within

the realm of reasonable differences of opinion regarding

fair cash value; (4) that objector did not file a complaint

for 1969 with the Cook County Board of Appeals; (5)

that median assessment for real property in Cook County

for 1969 and the five preceding years are less than or

equal to 27% of fair cash value indicating a continuity

of purpose on the part of assessment officials to keep

the assessment levels below the level of fair cash value

preseribed by the Revenue Act; (6) that wide variations

exist in the assessment levels of the different classes of

property in Cook County and among the properties in

each class indicating a continuity of purpose on the

part of the assessing officials to assess property at differ-

ent percentages of fair cash value; (7) that both county

=

and state officials have taken no steps to correct the

situation; and (8) that there is an intentional, wilful and

systematic discrimination against the objector as a result

of which objector’s property is assessed at about 240%

of the level for property generally in Cook County. The

court concluded that this situation worked a constructive

fraud on objector; that the assessing officials were vio-

lating sections 20, 130, 131, and 140 of the Revenue Act

of 1939 (Ill. Rev. Stat. 1969, ch. 120, pars. 501, 611, 612

and 621); and that those officials were depriving objector

of its rights under the uniformity provisions of the Illi-

nois Constitution of 1870. The court noted that objector

would have been entitled to a refund of approximately

$62,000 had it filed a complaint with the Board of Appeals.

However, since objector did not file such a complaint,

on the strength of People er rel. Nordlund v. Lans, 31

Hl.2d 477, 202 N.F.2d 545, and People ex rel. County

Collector v. Bostwick, 33 W2d 74, 210 N.E.2d 189, the

court entered judgment for the county collector.

OPINION

Objector first contends that it was not required to

exhaust its administrative remedies. It argues that an

apperance before the Board of Appeals was a useless act

since the Board lacked authority to change the instant

assessment and because it had previously been denied

relief before the same Board; that justice requires that

an exception to the doctrine of exhaustion of administra-

tive remedies be made here; and that the cases relied

upon by the trial court are distinguishable.

Objector’s primary argument is that the Board of

Appeals lacked authority to change the 1969 assessment

on its property. The Revenue Act was specific regarding

the standard to be applied in 1969 for valuing real prop-

erty. Section 20(1) of the Code (Ill. Rev. Stat. 1969, ch.

120, par. 501(1)) provides:

“Each tract or lot of real property shall be valued

at its fair cash value, estimated at the price it would

bring at a fair, voluntary sale.”

— lla —

Objector points out that the equalized assessment of its

property for 1969 was essentially equal to the fair cash

value of its property and the trial court made a finding

to that effect. Thus, it is clear that the ultimate effect

of the process of assessment and equalization in the

instant case was in conformity with section 20(1) as it

then existed.

e 1 Objector argues that since its property was properly

valued albeit after equalization, the Board of Appeals

had no authority to act on any complaint it might have

filed even upon a showing that it was bearing a dispro-

portionate share of the tax burden as a «sult of other

property in the county. IlIlowever, in view of section

of the Revenne Act (Ill. Rev. Stat. 1969, ch. 120, par.

594) specifies the powers and duties of Boards of Appeal

in counties of 500,000 or more inhabitants. Paragraph (1)

of that section states:

“On complaint that any property is over assessed

or under assessed, or is exempt, review and order

such assessment corrected.”

The State argues that the terms “over assessed” in this

paragraph provide ample authority for the Board to act

in the instant case where objector complains that its

property was assessed at a higher level than was other

property in the county. However, in view of section

20(1) of the Revenue Act, establishing fair cash value

as the standard of real property valuation for tax pur-

poses, the Board upon complaint had not authority to

reduce objector’s assessment to anything less than fair

eash value. (See Chicago, Burlington & Quincy R.R. Co.

v. Department of Revenue, 17 T1l.2d 376, 391, 161 N.F.2d

838, 847.) Indeed, had objector filed a complaint, the Board,

pursuant to section 20(1), may have been obligated to

raise objector’s assessment to fair cash value. Such action,

together with the application of the equalizing multiplier,

would only have aggravated objector’s plight since its

property was already assessed at a value above that of

the other property in the county and would not have

resulted in raising the assessments on those properties

——ae aa

— 12a —

which are underassessed. Furthermore, objector cannot

he expected to file a complaint with the Board of Appeals

for each and every parcel of underassessed property in the

county.

e 2-4 When a taxpayer properly complains that he is

bearing a disproportionate share of the tax burden because

of the undervaluation of other property in the county, the

Illinois Supreme Court has indicated that the tax objec-

tion procedure is the proper remedy to pursue. (People

ex rel. Cain v. Illinois Central R.R. Co., 33 T1l.2d 232, 210

N.E. 516; People ex rel. Kohorst v. Gulf, Mobile & Ohio

R.R. Co., 22 Til.2d 104, 174 N.E.2d 182; People ex rel.

Hillison v. Chicago, Burlington & Quincy R.R. Co., 22 Tl.2d

88, 174 N.E.2d 175; People ex rel. Callahan vy. Gulf, Mobile

€ Ohio R.R. Co., 8 111.2d 66, 132 N.E.2d 544.) The proper

measure of damages in such cireumstances is not the

amount of tax the objector would have paid had its prop-

erty been valued at the same level as other property in

the county. Such a measure of damages would require a

departure from the statutory standard of valuation.

(People ex rel. Hillison v. Chicago, Burlington & Quincy

R.R. Co., 22 Ul.2d 88, 102, 174 N.E.2d 175, 181-182.)

Rather, as the court explains in People ex rel. Kohorst v.

Gulf, Mobile & Ohio R.R. Co., 22 Mll.2d 104, 112, 174 N.E.

2d 182, 187, “[t]he measure of recovery is the difference

between the amount of taxes extended against the objec-

tors and the amount which would have been extended

had the locally assessed property been equalized at 100%

full, fair cash value.” It is clear that the Board of Appeals

was in no position to grant this relief, the amount of

the tax bill not then being known.

In these circumstances, objector was not required .o

file a complaint with the Board of Appeals. The judgment

of the circuit court of Cook County is reversed and the

cause is remanded to that court for further proceedings

not inconsistent with this opinion.

Reversed and remanded.

Suuuivan, P.J., and Barrett, J., concur.

ee

— 13a —

(No. 47154.—Appellate court reversed; circuit court

affirmed. )

THE PEOPLE ex rel. BERNARD KORZEN, County

Collector, Appellant, v. FULTON MARKET COLD

STORAGE COMPANY, Appellee.

Opinion filed Jan, 26, 1976.—Rehearing denied March

25, 1976.

1. TAXKS—ezrhaustion of the administrative proce-

dures in the Revenue Act of 1939 is a condition precedent

to filing objections to the collector’s application for judg-

ment. Exhaustion of the administrative procedures pro-

vided in the Revenue Act of 1939 is a condition precedent

to filing objections to the collector’s application for judg-

ment, and the filing of a complaint with the Board of

Appeals is required even though the Board has denied

relief on an earlier similar complaint filed within the

quadrennium. (Pp. 446-47.)

2. SAME—/filing a complaint with the Board of

Appeals may not be necessary if there is no means by

which a reduction in the assessed valuation of the objec-

tor’s property can be effected. If there is no means by

which a reduction in the assessed valuation of an objec-

tor’s prope: .y can be effected under the statutory adminis-

trative procedure, the filing of a complaint with the Board

of Appeals may not be required. (P. 447.)

3. SAME—in considering whether an objector’s prop-

erty is overassessed, the Board of Appeals is not restricted

to considering whether the assessed valuation exceeds the

far cash value. In determining whether an objector’s prop-

erty is overassessed, the Board of Appeals is not restricted

to consideration of the sole question whether the assessed

valuation execeds the fair cash value; it ean also consider

whether the real estate is correctly classified and whether

the assessment is at the same percentage of fair cash value

as was applied to other property within the appropriate

classification, and this was true even before the de facto

classification of real property in Cook County was ratified

by the provisions of section 4(b) of article IX of the

1970 Constitution. (Pp. 447-48.)

Cress, J., took no part.

— l4a —

Appeal from the Appellate Court for the First Dis-

trict; heard in that court on appeal from the Circuit

Court of Cook County; the Hon. Robert J. Dempsey,

Judge, presiding.

Bernard Carey, State’s Attorney, of Chicago (Sheldon

Gardner, Deputy State’s Attorney, and Henry A. Hauser

and Alan L. Fulkerson, Assistant State’s Attorneys, of

counsel), for appellant.

Moses, Gibbons, Abramson & Fox, of Chicago (James

L. Fox, of counsel), for appellee.

Mr. Justice GoLpENHERSH delivered the opinion of the

court:

Fulton Market Cold Storage Company (hereafter objec-

tor) appealed from the judgment of the circuit court of

Cook County entered in favor of Bernard Korzen, county

treasurer and ex officio county collector of Cook County

(hereafter collector), upon the collector’s application for

judgment for sale of objector’s real estate for unpaid

general taxes for the vear 1969. The appellate court re-

versed (22 Ill. App. 3d 1088), and we allowed the collec-

tor’s petition for leave to appeal.

Section 113 of the Revenue Act of 1939 (Ill. Rev. Stat.

1969, ch. 120, par. 594(1)) provided in pertinent part that

in counties of 500,000 or more inhabitants, the Board of

Appeals in any year shall, “On complaint that any prop-

erty is over assessed or under assessed, or is exempt,

review and order such assessment corrected.” Section 20

of the Revenue Act provided that “real property shall be

valued at its fair cash value * * *.” (Ill. Rev. Stat. 1969,

ch. 120, par. 501(f).) Objector had filed a complaint before

the Cook County Board of Appeals contesting the assess-

ment of its real estate for 1968 but had filed no such com-

plaint for 1969. It paid the general taxes for each year

under protest, and filed objections to the collector’s appli-

cation for sale. The objections were consolidated for trial

and it was stipulated that the evidence introduced by

objector would apply to the objections for both vears.

a al i tn a a

ee a

— 15a —

The circuit court found that the equalized assessed value

of objector’s real estate was approximately the same as its

fair cash value, that the equalized assessed value of all

property in Cook County was 41.62% of its fair cash

value, that the 1968 assessment of objector’s property was,

therefore, constructively fraudulent, and ordered a refund

to objector in the amount of $56,510.99. The court found

that the 1969 assessment was also constructively fraudu-

lent. It stated that objector would have been entitled to a

refund of approximately $62,000 of the $108,128 it had

paid under protest, but because objector had not filed a

complaint before the Board of Appeals, acting under

compulsion of People ex rel. Nordlund v. Lans, 31 [l.2d

477, and People ex rel. County Collector vy. Bostwick, 33

I11.2d 74, the court allowed the collector’s motion to dis-

miss the objections and entered judgment for the collector

for the full amount of taxes assessed.

The appellate court held that although the assessment

for 1969 was constructively fraudulent the Board of

Appeals was not empowered either to grant objector relief

on the ground that its property was assessed at a higher

level than other property in Cook County or to reduce the

assessed value of its real estate to less than its fair cash

value, that under these circumstances objector was not

required to file a complaint before the Board of Appeals

precedent to seeking relief in the cireuit court, and re-

versed the judgment.

The collector contends that the appellate court erred

in holding that the Board of Appeals was not empowered

to correct the overassessment of which objector complain-

ed. Citing People ex rel. Kutner v. Cullerton, 58 T1l.2d 266,

and La Salle National Bank v. County of Cook, 57 T!.2d

318, the collector argues, that the Cook County assessor

was authorized to classify reai estate, that the fair cash

value of objector’s real estate should properly be defined

as that percentage of fair cash market value at which

other property of the same class was assessed, that under

this definition objeetor’s property may have been over-

= “oe

assessed, and that the Board of Appeals was empowered

to grant relief. The collector contends that the objector

was required to exhaust its administrative remedies and,

having failed to do so, the cireuit court judgment must

be affirmed.

Although recognizing the established rule that a tax-

payer must exhaust his administrative remedies prior to

seeking relief in the courts, objector contends that the

circumstances here rendered the rule inapplicable. It con-

tends that the Board of Appeals was not empowered to

correct the fraudulent disparity in assessment which re-

sulted from the improper underassessment of other prop-

erty in Cook County. It argues that because its property

was properly assessed at approximately its fair cash

value the assessment could be reduced only by debasing

the assessed valuation and that under People ex rel.

Hillison v. Chicago, Burlington & Quincy R.R. Co., 22 Ill.

Jd S88, and Chicago, Burlington & Quincy R.R. Co. v. De-

partment of Revenue, 17 Ul.2d 376, such debasement was

prohibited. It argues that it could not obtain relief under

the administrative procedure, and that it was therefore

not required to file a complaint before the Board of

Appeals.

This court has held that exhaustion of the administra-

tive procedures provided in the Revenue Act is a condi-

tion precedent to filing objections to the collector’s appli-

eation for judgment (People ex rel. Nordlund v. Lams, 31

Ill.2d 477), and that the filing of the complaint was re-

quired even though the reviewing board had denied relief

on an earlier complaint filed within the quadrennium

(People ex rel. County Collector v. Bostwick, 33 Ill.2d 74).

The reason for the rule is well stated in Bostwick wherein

the court said:

“In our opinion one of the purposes in providing

for consideration by the board of review of alleged

assessment errors in each year was to provide a sim-

ple, economical and expeditious method whereby a

taxpayer might secure a review thereof. While objec-

ieee oe et te

et NE ee EE ee Cam Oe a a -

kt smn a

—17a —

tor argues that since no change in assessed value

can be made without notice in years intervening be-

tween quadrennial ones, and, since no change was

made and no notice given, he should not be required

to perform a useless act and duplicate his 1958 ap-

pearance, this argument is predicated upon his as-

sumption that had he presented his complaint to

the board in 1959 and 1961 relief would have been

denied. While it is possible that this result would

have obtained, such is not a necessary conclusion,

for even though the basis for complaint was similar

in each year, different methods of proof might have

been used, personnel of the board might have been

altered, or, if the facts and personnel remained iden-

tical, the opinion of the board might have changed.

Although objector’s argument is not without force,

we believe it would be a perversion of the manifest

statutory intent were we to hold that the statute

contemplates appearance before the board of review

only in a quadrennial year or an intervening year in

which a change in valuation is made.” 33 Ll.2d 74,

77.

If it were shown that there was no means by which

the reduction in the assessed valuation of objector’s

property could be effected under the statutory administra-

tive procedure it could perhaps be argued that the filing

of the complaint was not required. (Illinois Bell Tele-

phone Co. v. Allphin, 60 Tl.2d 350, 358.) That, however,

was not the case. There is no question that prior to the

adoption of the 1970 Constitution there had been de facto

classification of real property in Cook County for pur-

poses of taxation (La Salle National Bank v. County of

Cook, 57 Ill.2d 318) and that the practice was ratified by

the provisions of section 4(b) of article [IX of the Constitu-

tion (People ex rel. Kutner vy. Cullerton, 58 U1L.2d 266).

In determining whether objector’s property was over-

assessed the Board of Appeals was not restricted to con-

sideration of the sole question whether the assessed

wii

valuation exceeded the fair cash value. It could also

have considered whether the real estate was correctly

classified and whether the assessment was at the same

percentage of fair cash value as was applied to other

property within the appropriate classification. In our

opinion the record fails to show circumstances which

invoked an exception to the rule that the statutory ad-

ministrative procedures must be followed prior to filing

objections to the collector’s application for judgment for

sale of the real estate.

For the reasons stated the judgment of the appellate

court is reversed, and the judgment of the circuit court

of Cook County is affirmed.

Appellate court reversed;

circuit court affirmed.

MR. JUSTICE CREBS took no part in the considera-

tion or decision of this case.

oiermnine A -

= “a

CLERK OF THE SUPREME COURT

March 25, 1976

Moses, Gibbons, Abramson

& Fox

Attorneys at Law

33 N. Dearborn St.

Chicago, Ill. 60602

No. 47154— Bernard Korzen as County Treasurer, etc.,

appellant, vs. Fulton Market Cold Storage

Company, an Illinois corporation, appellee.

Appeal, Appellate Court, First District.

You are hereby notified that the Supreme Court today

denied the petition for rehearing in the above entitled

cause.

Very truly vours,

Clell I.. Woods

Clerk of the Supreme Court

120 Ill. Rev. Stat. § 630 (1969) provides:

The assessments of the property, as returned by

the county clerks, shall be equalized by adding to the

aggregate assessed value thereof in every county

in which the Department may find the valuation to be

less than full, fair cash value, such rate per cent as

will raise the same to its full, fair cash value,

estimated as proviced in Section 148a of this Act,

and by deducting from the aggregate assessed value

thereof, in every county in which the Department

may find the valuation to be more than full, fair

eash value, such rate per cent as will reduce the

same to its full, fair cash value.

But no rate per cent whatever shall be certified by

the Department to raise or reduce the aggregate as-

sessed value thereof, as returned by the County Clerk

of any county in which such aggregate assessed value

shall be more than ninety-nine and less than one

— Ha —

hundred one per cent of the estimate of the full, fair

eash value of such property forwarded by the Depart-

ment to the county clerk as provided by Section

148a of this Act.

120 Ill. Rev. Stat. § 675 (1969) provides in part:

Current taxes on real property shall be payable

in 2 equal installments. The collector, when so re-

quested by the party paving the taxes, shall receive

and receipt for such taxes in installments. The col-

lector shall receive taxes on part of any lot, piece

or parcel of land charged with taxes when a particu-

lar specification of the part is furnished. If the tax

on the remainder of such lot or parcel of land re-

mains unpaid, the collector shall enter such specifica-

tion in his return, so that the part on which the tax

remains unpaid may be clearly known. The tax may be

paid on an undivided share of real estate. In such

case the collector shall designate on his record upon

whose undivided share the tax has heen paid.

If any person desires to object pursuant to Sec-

tion 235 of this Act to all or any part of a real

property tax for any vear, for any reason other

than that the real estate is not subject to taxation,

he shall first pay all of the tax installments due,

and such payment shall be accompanied by a writing,

substantially in the following form. . .

+ * >

No protest shall prevent or he a cause to delay

in the distribution of tax collections among the taxing

bodies of any taxes collecte. which were not paid

under protest. The collector may withhold from dis-

tribution the amounts paid under protest or 1%

of the total taxes collected, whichever is less. The

collector shall deduct from the taxes of any taxing

body for any year the amount of any tax for any

vear held illegal by the final order of a court, and

use the amount deducted to equalize the distribution.

eee

— 2la—

120 Ll. Rev. Stat. § 716 (1969) provides in part:

The court shall examine said list, and if defense

(specifying, in writing, the particular cause of ob-

jection) be offered by any person interested in any

of said lands or lots, to the entry of judgment against

the same, the court shall hear and determine the

matter in a summary manner, without pleadings, and

shali pronounce judgment as the right of the case

may be.

* * .

If any party objecting to any tax paid under pro-

test is entitled to a refund of the amount, or any

part thereof, so paid under protest, the court shall

enter judgment accordingly. The court shall give

judgment for such taxes and special assessments

and penalties as shall appear to be due, and such

judgment shall be considered as a several judgment

against each tract or lot or part of a tract or lot,

for each kind of tax or special assessment included

therein. . .