Cox v. Hawkins

Mr. Justice Hand delivered the opinion of the court:

This is a bill in chancery filed by appellant against appellee, the county clerk of Douglas county, in the circuit court of said county, to enjoin the extension of the taxes upon an increased assessment made against the appellant by the board of review of said county. A demurrer was interposed to the bill and sustained, and a decree entered dismissing the same for want of equity, and an appeal has been prosecuted to this court.

The bill alleges that the assessor of the township in which the complainant resided called upon him for the purpose of assessing his property; that the complainant made out, subscribed and swore to a schedule of all his personal property subject to assessment and taxation and delivered the same to said assessor; that the assessor determined and fixed the fair cash value of said personal property and assessed the same as provided by law; that the board of review of said county, at a meeting held on the fifth day of September, 1901, fraudulently, arbitrarily and without any authority of law, and without notice to the complainant, raised said assessment in the sum of $7900; that the complainant was not the owner of said $7900, or any part thereof, on the first day of April, 1901; that complainant is willing the county clerk should extend the taxes upon the original assessment as made by said assessor; that said county clerk is about to extend and enter upon the tax books of said county, against the complainant, the taxes for the year 1901 upon the basis of said increased assessment, and prays that he be enjoined from so doing.

The demurrer admitted all the allegations of the bill, which were well pleaded, one of which was, that said increased assessment was made without notice to the complainant. Section 34 of.the Revenue act, approved February 25, 1898, (Hurd’s Stat. 1899, p. 1452,) provides that the board of review shall meet on or before the second Monday in July in each year; that at such meeting, upon its own motion or upon the application of any taxpayer, it may revise the entire assessment, or any part thereof, of any tax-payer, and correct the same as shall appear to them to be just; but in no case “shall the assessment of the property of any person be increased unless such person or his agent, if either be resident or has a place of business in the county, shall first have been notified in writing and been given an opportunity to be heard.” In Tolman v. Salomon, 191 Ill. 202 , on page 204 it is said: “It has constantly been held that where a property owner so makes out and delivers to the assessor a list of his taxable property with the valuation thereof, and the schedule and valuation are accepted by the assessor as correct, they cannot afterward be altered or changed without first giving notice to the party assessed. (Cleghorn v. Postelwaite, 43 Ill. 428 ; McConkey v. Smith, 73 id. 313; First Nat. Bank of Shawneetown v. Cook, 77 id. 622; Camp v. Simpson, 118 id. 224; Hiding v. Ehrich, 183 id. 315; Ayers v.Widmayer, 188 id. 121.) There can be nothing in the nature of a re-assessment without notice to the party affected.” Before the board of review has the right to increase the assessment of a property owner he must have notice and be given an opportunity to be heard, otherwise such increased assessment is made without authority of law and is absolutely void, and the assessment will stand as originally made by the township assessor.

It is, however, said, “a court of equity will never restrain the extension of a tax unless it is wholly unauthorized and void in all its parts.” (Ottawa Glass Co. v. McCaleb, 81 Ill. 556 .) That is true; but here the increased assessment, for want of notice to appellant, was “wholly unauthorized and void in all its parts.” We see no difficulty in separating-the increased assessment from the original assessment and extending the taxes upon the original assessment. This case would therefore seem to fall squarely within the rule as announced by this court in that case.

It is further urged that the complainant has not paid the taxes upon the original assessment. The amount of the taxes upon the original assessment was not'known at the time the suit was begun, and as the bill shows the amount of the increased assessment and only asks to have the extension of the taxes upon that amount restrained, we think the objection is without force. Clement v. Everest, 29 Mich. 19 .

The decree of the circuit court will be reversed and the cause remanded to that court, with directions to proceed in accordance with the views herein expressed.

Reversed and remanded.