Petition — Hutter v. Korzen

* i 2 ’ —

n FILED

JAN 14 1978

| MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

775957

In the matter of the application of Bernard Korzen as

County Treasurer and Ex- officio county collector

of Cook County Illinois for Judgement and order

of sale against lands and lots upon which the

General Taxes remain Due and Unpaid for the

year 1973 and for Judgement fixing the correct

amount of any Tax 1 9 protest forthe year

1973. Re DONT APPELLEE

A. ut? nem

J N dN BOP Ea AAT

Appeal from the 88 ourt of Illinois,

First Judicial District ana the Supreme Court of

Illinois. —

John A. Hutter

Attorney for Appellant pro se

Rte. 1, Sturgeon Bay, WI 54235

414-743-5774

and

3526 N. Marshfield Ave.

Chicago, IL 60657

312-GR7-2259

, IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

In the matter of the application of the County

Collector for Judgement for Delinquent Taxes for the

year 1973.

Appeal from the judgement of the Appellate Court

of Illinois, First District and the Supreme Court of

Illinois.

JURISDICTION STATEMENT

A. The Illinois Appellate Court in its order dated

May 26, 1977 as set forth in appendice quotes Treasurer

Guaranty Bank & Trust Co. (1976) 43 III App 3d 566,

570, 357 N.E. 2 d 601; Treasurer V Commercial Stamp-

ing and Forging, Inc. (1976) 42 Ill App 3 d 895, 897, 356

N.E. 2 d 844; Treasurer V Jackson Enterprises, Inc. V

Roseville (1976) 65 III. 2 d 420, 422.358 NE 2 d 1139.

The Court also refers to Treasurer V Hutter

(1975) 27 Ill. App 3 d 634,327 N. E. 2 d 138 (abst.) - 423

U.S. 807.

B. The jurisdiction of this court is involved because

Appellant believes that the Illinois Statute requiring

payment of taxes assessed in full under protest is re-

pugnant to the constitution of the United States amend-

ment 14 because it denies him his day in court and con-

fiscates his property without due course.

(i) The Appellant filed objection No. 502 for 1973

taxes Miscl. No. 74-75 in the Circuit Court of Cook

County County Department. The Circuit Court dis-

missed the objection because the Appellant had not

paid the taxes in question in full under protest as re-

quired by section 194 of the Revenue Act. (IIl Rev. Stat

1973 Ch. 120 Par. 675).

Section 194 provides that if any person desires

to object pursuant to Section 235 of this Act to all or

any part of a real property tax for any year. xxx he

shall first pay all of the tax installments due” under

protest.

(ii) The Appellant seeks this court to review the

order of the Appellate Court of Illinois, First Judicial

District dated May 26, 1977 and the denial of his peti-

tion for leave to appeal to the Supreme Court of Illinois

dated September 30, 1977.

Appellants Notice of Appeal was filed in the

above Appellate and Supreme Courts of Illinois an

Novembef by mail copy thereof was served on the

States Attorney of Cook County Illinois’ attorney for

the State and opposing counsel.

(iii) It is the duty of this court to determine whether

a statute of a State is repugnant to the Constitution of

the United States and its amendments.

(iv) In Zucht V King 260 U.S. 174, 176-177 the court

stated as follows: “Provides that the court may review

by a writ of error or appeal where the validity of a law

is sustained by the highest court of the state in whicha

decision in the suit could be had --- Atlantic Coast Line

R Co. V Goldsboro - pages 175-177 -

(v) Section 194 of the Illinois Revenue Act pro-

vides that “If any person desires to object pursuant to

Section 235 of this act to all or any part of a real pro-

perty tax for any year, --- he shall first pay all of the

tax installments due’. Illinois Revenue Statute 1973,

Ch. 120 par. 675.

C. The questions presented by this appeal is whether

any state, may, as set forth in the statute outlined in

pp V above, deny any person due process and his day

in court as provided in amendment 14.

(The effect of this case is to deprive and take

from the Appellant, his property without compen-

sation and due process).

D. In 1967 the assessor doubled the assessed valua-

tion of the real estate located at 3526-28 North Marsh-

field Avenue, Chicago, Illinois (Lake View Township).

The County Court (Judge McGillicuddy), with

the approval of the States Attorney, reduced the val-

uation back to what it was the four preceeding years.

In subsequent years the Assessor and the Board

of Appeals ignored the decision of the County Court

and placed an assessed valuation so high that it

exceeded the gross income of the property.

The Board of Appeals granted no relief.

In the year 1973 taxes, the objector Hutter, listed

in a brief presented to the Circuit Court (Judge

Dempsey) the gross income of the property for the

following years: 1971 - $14,159.00; 1972 - $3,888.00;

1973 - $6,021.00; 1974 - $8,717.00.

It is obvious that the objector could not pay the

taxes assessed ($7,594.00) for 1973 in full under pro-

test.

The Appellant raised the federal constitutional

questions before Judge Dempsey in the Circuit Court

as he had in previous years, where the case was dis-

missed upon motion by the States Attorney that the

Appellant had not paid the taxes in full under protest.

The same question was raised in the Appellate

Court and Illinois Supreme Court, (page 2 of Appel-

lants Brief and argument).

D. During the depression years in the thirties, hun-

dreds of thousands of tax payers could not pay the

confiscatory taxes assessed against them, soin class

actions before the Illinois Courts, they sought relief.

The illinois legislature fixed them; it passed a

law stating they could not have court relief unless

they paid their taxes first under protest. This subtle

move eliminated the provisions of Amendment 14.

Now, even if a tax payer does pay the assessed

taxes under protest and goes the expensive way of the

courts; the courts decision is ignored by the assessor

the next year as happened in this case.

The assessor does not have any problem secur-

ing political contributions or favors.

While he was assessing Hutters income? pro-

perty at more than the gross income he assessed the

100 million dollar John Hancock building at one (1)%

of its value.

In this 1977 year of recovery ? tax payers cannot

pay the huge increase in assessments against them

and once again are threatening class action and tax

strikes.

This unconstitutional law prevents them from

having a court hearing.

This appeal is in a very true sense - a class

action for constitutional protection.

The City of Chicago, like most cities will not or

cannot protect the lives and property of its inhabitants

from crime and vandalism which has destroyed the

possibility of people living in peace without threats

to their lives and property by street gangs and

criminals.

This appeal is so substantial and affects the

lives and property of so many people as to require

plenary consideration with briefs on the merits and

vrai argument for their resolution.

The statute in question can only be interpreted

as a means of deny people protection of our consti-

tution.

In Wisconsin, a sister state, anyone can appeal

his taxes through the Supreme Court without paying

the taxes.

In the meantime the statute runs and if taxes are

not paid within a few years with interest, the property

is deeded to the County. Our Constitution is meaning-

less if this court does not protc<t its citizens from the

tyranny of local governments.

Respectfully submitted,

John A. Hutter

Attorney at Law (Illinois)

appearing pro se

76-884

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

IN THE MATTER OF THE APPLICATION OF

BERNARD KORZEN AS COUNTY TREASURER

AND EX-OFFICIO COUNTY COLLECTOR OF

COOK COUNTY, ILLINOIS, FOR JUDGEMENT

AND ORDER OF SALE AGAINST LANDS AND

LOTS UPON WHICH THE GENERAL TAXES

REMAIN DUE AND UNPAID FOR THE YEAR

1973 AND FOR JUDGEMENT FIXING THE COR-

RECT AMOUNT OF ANY TAX PAID UNDER

PROTEST FOR THE YEAR 1973,

Respondent- Appellee,

vs.

JOHN A. HUTTER,

Objector-Appellant.

Appeal from the

Circuit Court of

Cook County.

Honorable

Robert J. Dempsey,

Judge Presiding.

ORDER DISPOSING OF APPEAL

UNDER SUPREME COURT RULE 23

John A. Hutter (hereinafter objector) did not pay

general taxes for the year 1973 on certain property in

the City of Chicago. The Cook County Treasurer as ex-

officio County Collector sought entry of a judgement

and order of sale for delinquent taxes. An objection

was filed claiming that the assessed valuation of the

property was excessive and it requested the modifica-

tion of said valuation. The objection was dismissed

because the objector failed to pay the full taxes on the

property under protest for the year in question, as set

forth in section 194 of the Revenue Act. (Ill. Rev. Stat.

1973, ch. 120, par. 675.) The sole contention advanced

by the objector on appeal is that the statutory mandate

of section 194 requiring full payment of taxes, before

challenge can be made to the taxes owed, deprives

objector of due process of law.

Section 194 of the Revenue Act provides that “[i] f

any person desires to object pursuant to Section 235 of

this Act to all or any part of a real property tax for any

year, * * * he shall first pay all of the tax installments

due“ under protest. (III. Rev. Stat. 1973, ch. 120, par.

675.) The legislative history of section 194 of the Re-

venue Act has been interpreted in numerous decisions

to require that the full amount of the tax installments

for the year must be paid in order to permit the court to

consider any tax objection. In re Application of

County Treasurer v. Milstine (ist Dist.),

Ill. App. 3d : , Cf os

(No. 62700, filed March 2, 1977); In re Application of

County Treasurer v. Guaranty Bank & Trust Co.

(1976), 43 Ill. App. 3d 566, 570, 357 N.E. 2d 601; In re

Application of County Treasurer v. Commercial

Stamping & Forging, Inc.(1976), 42 III. App. 3d 895.

wo

—

897, 356 N. F. 2d 844; see also 28 E. Jackson Enterprises,

inc. v. Rosewell (1976), 65 III. 24 420, 422, 358 N. E. 2d

1139.

Objector, without citation of authority, contends

that full payment of taxes as a condition precedent is

violative of due process. Such contention has been

previously rejected by this court. (In re Application of

County Treasurer v. Hutter (1975), 27 III. App. 3d 634,

327 N. E. 2d 138 (abst.), appeal dismissed for want of

jurisdiction, 423 U.S.807.) However, we need notapply

this decision to the present case.

The record before us does not show the objector

ever asserted at trial that he could not fully pay the

taxes for the period in question. While the objector

suggests in his brief that full payment could not be

made, this factual assertion did not appear to be pre-

sented to the trial court; and such consideration is

dehors the record and not before this court. People v.

C. Betts Realtors, Inc., — III 2d 1

N. E. 2d (Nos. 48359-64, filed March 23, 1977).

In Exchange Nationa! Bank v. Cullerton (1974), 17

Ill. App. 3d 392, 308 N.E. 2d 284, the same contention

now advanced by the objector was made. This court,

however, indicated the plaintiff could not avail itself

of such constitutional claim:

“* * * (Pjlaintiff contends that this re-

quirement deprives parties unable to

pay excessive property taxes under

protest of due process of law. In view of

this contention an allegation in the

complaint that plaintiff was unable to

pay the taxes under protest was essen-

tial. If plaintiff were nota party unable

to pay its taxes under protest, it would

10

not be prejudiced by the unconstitu-

tionality of the statute on the grounds

indicated. In the instant case, plaintiff

elected to stand on its complaint. How-

ever, the complaint did not allege

plaintiff's inability to pay the taxes

under protest. The complaint was in-

sufficient in failing to make an es-

sential allegation and was properly

the subject of a motion to dismiss.” 17

Ill. App. 3d at 395(emphasisin original).

The record in this appeal presents a resembling

situation. Similarly, under the circumstances of this

case, we conclude the trial court did not err in refusing

relief sought by the objector.

We have also concluded that an opinion in this

case would have no precedential value. Accordingly,

and pursuant to Supreme Court Rule 23 (III. Rev. Stat.

1975, ch. 110A, par. 23), the judgement of the circuit

court of Cook County is affirmed.

DATED AT CHICAGO, ILLINOIS this 26th day of

May, 1977.

ENTER:

PHILIP ROMITI, Justice

GLENN T. JOHNSON, Justice

DAVID LINN, Justice

11

GILBERT S. MARCHMAN

CLERK OF THE APPELLATE COURT

FIRST DISTRICT OF ILLINOIS

CHICAGO CIVIC CENTER

CHICAGO 60602

November 14, 1977

Honorable Morgan M. Finley, Clerk

Circuit Court of Cook County

Chicago, Illinois 60602

RE: In The Matter of The Application

of Bernard Korzen, etc. v. John A.

Hutter Appellate Court Number

76-884 Trial Court Number OBJ.

No. 502

Dear Mr. Finley:

Enclosed is the mandate of the Appellate Court in the

above entitled cause.

Please acknowledge receipt of same on the copy of the

letter enclosed.

Very truly yours,

GILBERT S. MARCHMAN

Clerk of the Appellate Court

First District, Illinois

GSMirs

oc: John A. Hutter

Honorable Bernard Carey

12

IN THE APPELLATE COURT OF ILLINOIS, FIRST

DISTRICT and the SUPREME COURT OF ILLINOIS

In the matter of application of Bernard Korzen as

County Treasurer and ex officio county of Cook

County, Illinois, for Judgement and Order of Sale

against lands and lots upon which the general taxes

remain due and unpaid for the year 1973 and for judge-

ment fixing the correct amount of any tax paid under

protest for the year 1973 vs. John A. Hutter.

NOTICE OF APPEAL

The appellant, John A. Hutter, appearing pro se,

hereby appeals the Judgement of the Appellate Court

of Illinois, First District, dated May 26, 1977, case no.

76884 and the order of the Supreme Court of Illinois,

denying appellant John A. Hutter's petition for leave

to appeal in the above entitled cause dated September

30, 1977, Case no. 49735, to the United States Supreme

Court.

—— ee gg —

13

This case is appealed because federal questions

are basic and substantial. (see Zucht vs. King 260 U.S.

174, 176, 177)

John Hutter

3526 N. Marshfield Ave.

Chicago, IL 60657

GR 7-2259

In residence:

Rte. 1

Sturgeon Bay, WI 54235

414/743-5774

I hereby certify that a copy hereof was served on the

States Attorney of Cook County, the Clerk of the Ap-

pellate Court and the Clerk of the Supreme Court of

the United States by certified mail this 26 day of

November, 1977

35

STATE OF ILLINOIS

OFFICE OF

CLERK OF THE SUPREME COURT

SPRINGFIELD

62706

L. Wooos TELEPHON

— September 30, 1977 a

782-203!

Mr. John Hutter

Attorney at Law

Route 1

Sturgeon Bay, Wisconsin 54235

No. 49735 - Bernard Korzen as County Treasurer, etc., respond

ent, vs. John A. Hutter, petitioner. Leave to

appeal, Appellate Court, First District.

You are hereby notified that the Supreme Court

today denied the petition for leave to appeal in the above

entitled cause.

Very truly yours,

Yel l. Au.

Clerk of the Supreme Court