author: JUSTICE "WARD JUSTICE SIMON,

text:
    (No. 55907.

      In re APPLICATION OF EDWARD J. ROSEWELL, County Treasurer, Appellant (Harold S. Levin et al., Appellees).

      Opinion filed July 6, 1983.

    Rehearing denied September 30, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Thomas J. McNulty, Assistant State’s Attorney, of counsel), for appellant.
    Arvey, Hodes, Costello & Burman, of Chicago (Nathan M. Cohen, Eugene L. Griffin, Robert M. Samoff, Jeffrey I. Langer, of counsel, and Clifford E. Vickrey, law student), for appellees Harold S. Levin et al.

    Bernard Allen Fried, of Chicago, for appellee Aaron Szydlowicz et al.

    James A. Rooney, of Chicago, for appellee Iver Johnson.
   JUSTICE "WARD

delivered the opinion of the court:

This appeal presents the question of the authority of the circuit court to withhold property that has been tax delinquent for five years or more from a sale under section 235a of the Revenue Act of 1939, which section is commonly known as the Scavenger Act (Ill. Rev. Stat. 1979, ch. 120, par. 716a). The circuit court of Cook County, upon the motion of the county treasurer and collector, Edward J. Rosewell, removed certain tax-delinquent parcels from a judgment and order of sale that had been applied for by him under the Scavenger Act. The ground for the motion was that civil actions for delinquent taxes had already been brought by the board of commissioners of Cook County against the owners of these parcels pursuant to section 275 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 756), and were pending. The appellate court, on an appeal filed by certain of the owners (the objectors), reversed the order removing the parcels from sale, holding that the Scavenger Act’s provisions for sale of property that has been tax delinquent for five years are mandatory. (101 Ill. App. 3d 498.) The collector petitioned for leave to appeal under Rule 315 and alternatively under Rule 317 on the ground that the appellate court’s decision raised for the first time a constitutional question regarding the separation of powers. The collector’s petition was allowed. 73 Ill. 2d Rules 315, 317.

The collector filed the application for judgment and order of sale under the Scavenger Act on July 21, 1980. The application included all parcels upon which real estate taxes remained unpaid for each of five or more years. On August 8, 1980, the circuit court entered a judgment and order of sale.

On August 27, 1980, the collector, at the request of his legal counsel, the State’s Attorney of Cook County, moved the court to amend its judgment so as to exclude from it the parcels whose owners had already been named in suits to collect delinquent real estate taxes. The objectors opposed the motion, but the court on September 24, 1980, amended its judgment and deleted the parcels. The court subsequently confirmed the sale of the remaining parcels. It denied objections to the confirmation of sale filed by the objectors, who argued that their parcels should have been included in the sale.

The Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) provides for proceedings against the delinquent taxpayer personally and also against the real property on which taxes are overdue. Section 27a (Ill. Rev. Stat. 1979, ch. 120, par. 508a) provides for personal liability for taxes, stating that an owner of real properly on January 1 “shall be liable for the taxes of that year.” Section 216 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 697), on the other hand, provides for an in rem claim. It declares that real property taxes shall be “a prior and first lien” on the property, “superior to all other liens and encumbrances,” from January 1 in the year in which the taxes are levied until they are paid or until the property is sold under the Revenue Act.

Statutory means of enforcing these tax obligations have been enacted. Section 235 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 716) provides for an annual sale for the full amount of taxes owed on tracts on which taxes have not been paid in any one year. Tracts offered for sale under this but not sold are “forfeited” to the State. (Ill. Rev. Stat. 1979, ch. 120, par. 727.) (The statutory “forfeiture” does not, however, involve any claim by the State to title or possession. See Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Elinois Revenue Act, 26 DePaul L. Rev. 1, 5 (1976).) Section 275 of the Revenue Act provides that the county may at any time bring a civil action in the name of the State against the property owner personally for taxes on property that has been “forfeited.” (Ill. Rev. Stat. 1979, ch. 120, par. 756.) Tbo, should the property remain tax delinquent for five years or more, the Revenue Act provides for a so-called scavenger sale, which is involved here.

At the time of the sale here, the relevant section of the Scavenger Act provided:

“[T]he County Collector annually *** shall in counties with a population of 2,000,000 or more, and shall in other counties if the county board by resolution so orders, *** publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or a part of the general taxes for each of 5 or more years are delinquent as of the date of the advertisement. *** The term delinquent also includes forfeitures. *** The County Collector shall make application for judgment for sale as provided in this Section and the Court shall give judgment for such general taxes, special taxes, special assessments, interest, penalties and costs as aré included in the advertisement and appear to be due thereon after allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of this Act, that such lands and lots be sold by the County Collector at public sale to the highest bidder for cash, notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered. Upon confirmation, a sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture. ***
*** The remedy herein provided is in addition to other remedies for the collection of delinquent taxes. This Section shall be liberally construed so that the deeds herein provided for shall convey merchantable title.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 716a.

The collector contends that the appellate court erred in holding that under the provisions of the Scavenger Act the court must enter an unalterable judgment for the sale of every parcel that has been declared tax delinquent for five years or more. The collector points out that, apart from a court’s inherent judicial powers, a court, under the Act’s explicit provisions, has authority to consider objections to a judgment and sale and to conduct hearings, and, of course, there is authority to enter appropriate orders. He says that for good cause, such as for fraud or irregularity, the trial court is not compelled to order a sale. Nor is a court, where prior suits against delinquent taxpayers to collect overdue taxes in full are pending, required to order a sale which predictably will bring only a small fraction of the tax indebtedness and may also require dismissal of the pending suits. The construction of the Scavenger Act that the objectors seek, the collector argues, would contradict the language and purpose of the statute and would sanction an unconstitutional interference by the legislature with the judiciary’s authority to decide cases.

The objectors, on the other hand, stress the legislature’s use of “shall” in providing that “the [c]ourt shall give judgment” for the taxes due and order a sale. They say that a mandatory construction is more in keeping with the apparent purpose of the Scavenger Act, to return tax-delinquent property to a status where it will generate revenue.

The collector is correct in his contention that under the legislative intendment the circuit court had discretionary authority to withhold the parcels of the objectors from the sale. It will not be necessary to consider the collector’s additional contention that the appellate court’s holding has presented a constitutional question. “It is the established rule of this court that a constitutional question 'will not be considered if the case can be decided without doing so. [Citations.]” In re Estate of Ersch (1963), 29 Ill. 2d 572, 576-77.

The fundamental of statutory construction is to ascertain and then give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 475; Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203.) Regarding the construction of provisions in statutes as being mandatory or directory, Sutherland on Statutory Construction states:

“There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. The intention of the legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent. In the words of a court: ‘Consideration must be given to the legislative history, the language of the statute, its subject matter, the importance of its provisions, their relation to the general object intended to be accomplished by the act, and, finally, whether or not there is a public or private right involved.’ ” 1A A. Sutherland, Statutory Construction sec. 25.03 (4th ed. 1972), quoting from Wilcox v. Billings (1968), 200 Kan. 654, 657, 438 P.2d 108, 111.

Sutherland also observes that “shall,” except when expressing futurity, indicates a mandatory intent. The intent, however, it is stated, is not to be understood as mandatory if “the context otherwise indicates.” (1A A. Sutherland, Statutory Construction sec. 25.04 (4th ed. 1972).) This court has recognized that while “shall” ordinarily suggests the mandatory, it may properly be construed in a directory sense to carry out what appears to be the intent of the legislature. In re Armour (1974), 59 Ill. 2d 102, 104 (the word “shall” does not have an exclusive, fixed or inviolate meaning); Cooper v. Hinrichs (1957), 10 Ill. 2d 269, 272 (the word “shall” can be construed as meaning “must” and “may” depending upon the legislative intent).

The language of the provision in the Scavenger Act for the entry of a judgment and order of sale shows a legislative intent that the court was not to be without discretion and without the capacity to act judiciously. It provides for the entry of a judgment “after [the court’s] allowing an opportunity to object and a hearing upon the objections as provided in Section 235 of [the Revenue] Act ***.” Section 235 provides that the court shall consider the defenses of those against whom judgment may be entered and in a summary manner “pronounce judgment as the right of the case may be.” (Ill. Rev. Stat. 1979, ch. 120, par. 716.) The court was not to be required to enter judgment and an order of sale regardless of circumstances and regardless of whether the public interest would be served. The mandatory construction urged by the objectors is not reasonable.

The civil actions against the property owners personally to satisfy the indebtedness for taxes are premised upon a “forfeiture.” As we have seen above, parcels offered at the annual sale but not sold are “forfeited” to the State, and section 275 of the Revenue Act authorizes a civil action against the owner of property that has been “forfeited.” (Ill. Rev. Stat. 1979, ch. 120, par. 756.) On confirmation of the sale following a scavenger sale, all tax liens and “forfeitures” are extinguished, notwithstanding the fact that the sale has been for less than the full amount of back taxes and notwithstanding that the sale may have been for a nominal amount. As quoted earlier in this opinion the statute reads:

“[A] sale pursuant to this Section shall extinguish the lien of the general taxes, special taxes and special assessments for which judgment has been entered and shall extinguish all forfeitures therefor, and a redemption shall not revive the lien or the forfeiture. ” (Emphasis added.)

(Between 1967 and 1973 in Cook County, 6,000 items of property were sold at scavenger sales; the average bid was only $143. (26 DePaul L. Rev. 1, 8 (1976).)) As the collector points out, the objectors are urging that we view the Scavenger Act as operating to abort, in effect, the civil actions brought under section 275. The welcome consequence for the objectors of doing so would be that under the Scavenger Act the tax liens and forfeitures would be extinguished and the property of the objectors given a clean bill of tax health.

The objectors unreasonably ascribe to the legislature an intendment which would frustrate the public’s efforts to collect the full amount of taxes due and would encourage tax delinquents to stall actions against them until the time for a scavenger sale of their property is reached; i.e., after five years of nonpayment of taxes. (The relationship between tax delinquency and urban blight is discussed in J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Rlinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 DePaul L. Rev. 1 (1976).) The legislature, however, did not include in section 275 any limitation as to the time within which suit against the delinquent taxpayer must be brought. The civil action for the tax indebtedness may be brought “at any time.” (Ill. Rev. Stat. 1979, ch. 120, par. 756.) Moreover, that the Scavenger Act was not intended to frustrate the actions against the property owner is clearly expressed in the Act itself. The Act states: “The remedy herein provided is in addition to other remedies for the collection of delinquent taxes.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 716a.

The Scavenger Act is the legislature’s device of last resort. A principal object of it is to restore the property to a tax-revenue-producing status. (In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 1108.) It assumes that the other available methods of tax collection have been exhausted. The sale will be to the highest bidder, regardless of the amount of the tax delinquency. The action in debt procedure and the scavenger sale are remedial provisions. The former is intended to effect tax collections and to discourage the nonpayment of taxes. The scavenger sale is designed, as a last resort, to extinguish tax liens and forfeitures and to attempt to restore the property to a productive status. The two procedures must be read to complement and not to contradict each other. The legislature, realistically, did not intend that five or more years of overdue taxes would be satisfied by a bid of, say, $143 (26 DePaul L. Rev. 1 (1976)), if suits were pending to collect the entire amount of the overdue taxes plus interest. (The record does not disclose the tax indebtednesses of the tax objectors. It appears from the addresses that the properties, in the main, are in deteriorating areas of Chicago. Considering that the ownership is in trusts with numerous beneficiaries, it appears that the properties are multifamily houses.)

The trial court did not violate what we perceive to be the legislative intent which would permit the county to continue its attempt to compel the tax delinquents to pay their taxes in full. The elimination of their properties from the sale simply gave the county the opportunity to protect its claims for the payment in full of the overdue taxes. As we have seen, if the concerned property had been sold the hen for taxes and forfeitures would have been extinguished and the pending actions against the tax delinquents might have been subjected to dismissal on that ground. Whether that result should have followed is, of course, not before us on this appeal. It seems clear, however, that dismissal of the actions would have been sought by some objectors had the parcels been sold at the scavenger sale. The appellate court opinion notes: “The stipulation between the parties above described states that one of the owners [objectors] intends to file a motion to dismiss the action in debt against him on the ground that the debt, if any, has been ‘extinguished by the Scavenger sale.’ ”

Dismissal of the actions in debt would be another welcome consequence for the objectors. This is an additional reason for their complaint that their properties were removed from the scavenger sale.

Though enacted too late to be of effect here, we point out that the legislature has acted to correct the very deficiencies in the Scavenger Act that we have shown and discussed here. Through an amendment (Pub. Act 82 — 987, 1982 Ill. Laws 2471, 2473) which its sponsor described as “very important in [Cook County’s] attempts to collect delinquent taxes” (82nd Gen. Assem., Legislative Day 127, June 23, 1982, at 229 (remarks of Sen. Netsch)), and which became effective September 9, 1982, the legislature removed from the Scavenger Act the provision that all forfeitures shall be extinguished upon confirmation of the sale. The amendment also provides that confirmation of a sale shall not affect the personal liability of the owner or prevent the maintaining of an action under section 275 for the collection of delinquent taxes. (1982 Ill. Laws 2471, 2473.) It seems not unlikely that this action by the legislature was taken in response to the appellate court opinion here. The content of the amendment shows that the legislature entertained the same views and concerns that we have expressed here, including the effect of the provision for the extinction of all forfeitures on actions brought for the collection of taxes under section 275. Earlier, in Public Act 81 — 1076 (1979 Ill. Laws 4091, 4092), the legislature amended the Act to provide: “No certificate of purchase [at a scavenger sale] shall be issued to any person who has not executed and delivered an affidavit to the County Clerk that such person has not bid upon any lot or tract of land at such sale who is the party or the agent of the party who is responsible for the payment of the delinquent taxes.” That amendment was effective July 1,1980.

In the same amendment, Public Act 81 — 1076, the General Assembly wisely changed the provisions governing redemption following a scavenger sale. Prior to this amendment, the Act permitted an owner whose property was sold at a scavenger sale to redeem the property by paying only the amount for which the property was sold, together with interest. At a scavenger sale properties are sold to the highest bidder, and the amount of the bid need not be in the amount of the taxes owed. As a result, properties could be sold for only a small fraction of the amount of taxes owed; the Act, however, specifically provided that a redemption did not revive the lien and forfeitures extinguished by confirmation of the sale. (1979 Ill. Laws 4091, 4092.) (At the time of this amendment, the Act still provided that confirmation of a sale extinguished all forfeitures (1979 Ill. Laws 4091, 4092).) In the amendment (the language of which was later clarified in Public Act 82— 987, discussed above), the legislature provided that, except for single-family residential units, a tax-delinquent owner seeking to redeem from a scavenger sale must pay the amount of the delinquent taxes owed at the time of the sale, that is, he must satisfy the tax delinquency. 1979 Ill. Laws 4091, 4093.

This shows a determination by the legislature to deal with the problem of the permitted evasion of taxes by owners of tax-delinquent property and of the unwitting fostering of urban blight by deficiencies in the Scavenger Act. The 1980 amendment to the Act obviously was designed by the legislature to end the incredibly permitted practice of allowing tax-delinquent owners to re-acquire their own property free of forfeitures and tax liens following a sale under the Scavenger Act without satisfying their tax indebtedness. The amendments should discourage the sacking of residential properties by owners who deliberately fail to pay taxes, make no repairs, provide only minimal maintenance, ignore building code violations, and then are allowed to re-acquire the property free from liens and maybe from personal liability for taxes.

Senator Nedza, the sponsor in the Senate of the bill that became Public Act 81 — 1076, in urging its passage, told the Senate: “Under the present scavenger sale system, there are many blatant abuses by property owners to avoid paying their taxes. Moreover, it is costing the counties millions of dollars in lost revenue, not to mention the loss in the valuable housing.” He urged the Senate to “[close] the loop hole in the tax collection system which penalizes diligent taxpayers ***.” 81st Gen. Assem., Legislative Day 74, June 27,1979, at 163.

Another senator, rising in support of the bill, stated: “[W]e were all painfully aware that this process . . . this procedure, does, in fact, exist. What happens is *** you will get a large apartment building in the ... the west side of Chicago, for instance and no taxes will have been paid year after year and after five years there is what’s called a scavenger sale and I or one of my friends can go in and buy the back taxes for a dollar or two dollars or two dollars and fifty cents when the taxes, in fact, may have been ten thousand or twelve thousand or fifteen thousand dollars and then I can absolve myself from tax liability by purchasing for two dollars and fifty cents plus interest the amount of that bid.” 81st Gen. Assem., 74th Legislative Day, June 27, 1979, at 163-64 (remarks of Sen. Rock).

We observe, too, that Public Act 82 — 987 (which removed the provision that confirmation of a sale extinguishes all forfeitures) not only confirms our apprehension of the possible effect of confirmation of a sale on the actions for debt, but supports, too, our understanding of the duties of the court under the Act. As we have stated, the objectors stress the use by the legislature of “shall” in describing the court’s duty to order a sale, and stress that “shall” has also been used in describing the function of the collector to give notice of his intended application for judgment of sale, a duty held to be mandatory in People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272. Public Act 82 — 987 changed the Act, which provided that the collector “shall” give notice of the application, to provide that “it shall be mandatory for him” to do so. (1982 Ill. Laws 2471, 2472.) This supports our interpretation here of “shall.” By adding that “it shall be mandatory for him” (the collector), the legislature showed its recognition that “shall” is not always to be equated with “mandatory.” If this were not so, the legislature would have had no reason to change its language, especially after it had been judicially construed to be mandatory language in the case of collectors. Also, and very significantly, while the legislature added mandatory language in describing the duties of the collector, it did not do so in regard to the description of the function of the court. It left unchanged the provision that the court “shall” order a sale, retaining the language it considered required change in the case of collectors to show that their duties were mandatory.

The objectors note that section 1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 1) provides that the Act applies to all civil proceedings except “other proceedings in which the procedure is regulated by separate statutes.” They say that here the procedure is regulated by the Scavenger Act and therefore the Civil Practice Act was not applicable. We need not decide this question because, in any event, the court here can be said to have acted within its inherent authority. The General Assembly can enact laws governing judicial practice only when it does not unduly infringe upon the inherent powers of the judiciary. Agran v. Checker Taxi Co. (1952), 412 Ill. 145.

The objectors argue that there is no showing that any judgments obtained through the pending suits will be collectible. The argument is unconvincing. One may assume that the State’s Attorney, as any other prudent attorney, would have investigated prior to the institution of suit and have been satisfied that the filing of suit would be productive. It should be noted, too, that the objectors are only a very small fraction of those owners whose property was designated for the scavenger sale. The State’s Attorney, prior to the institution of the Scavenger Act proceedings, must have been satisfied that the actions in debt against the objectors involved here would be productive.

The State’s Attorney’s brief says that the appellate court ruling exposes over 290 actions in debt to possible dismissal. These 290 cases seek to recover over $7 million in delinquent real estate taxes. The State’s Attorney also says that in 1981 over 400 more actions in debt which seek collections of almost $8 million in delinquent taxes were filed. Obviously the question presented is not an isolated one.

Incongruously, considering that they have avoided for five years or more the responsibility of paying taxes, the objectors say that, unless the provisions of the Scavenger Act are held to be mandatory, there will be no assurance that the provisions of the Act will be carried out and the property restored to a tax-revenue-producing status. We need only observe that in instance after instance the legislature imposes duties upon public officials which typically are performed without default. The entire structure of government functions on the assumption that persons charged with public responsibilities will discharge those responsibilities.

It should be observed that simply because a parcel is not ordered to be sold in a given scavenger sale does not mean that its future sale is precluded. Property withheld from a sale may be included in a subsequent scavenger sale. The statute provides for the advertisement of the application for judgment and order of sale for tracts upon which taxes “for each of 5 or more years are delinquent.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 120, par. 716a.

The two decisions principally relied upon by the objectors, and cited by the appellate court in its opinion, are simply not in point. Both consider the duties of the collector and not the powers of the court.

The appellate court’s opinion states that it considered it unnecessary to consider in detail the points raised by counsel. The court simply said that stare decisis required that it reverse the orders appealed from. The court cited In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, and People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272. The appellate court, however, seriously misapprehended what those decisions involved. In People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, the court held that the collector was without discretion to omit tracts from his advertisement under the Scavenger Act of tax-delinquent property. The court said that because the purpose of the provision for notice of the collector’s intention to seek judgment against the property was to inform owners of the delinquency and give them an opportunity to object to the judgment, and was not simply being a rule for the guidance of public officials, the county officers must strictly comply with the requirement for publication. The collector had omitted certain parcels from publication because there were pending actions against owners of those parcels. The court fully perceived, however, that the issue before it was not the question here. The court stressed:

“We are not suggesting, however, that an action for unpaid taxes once instituted cannot be pursued to final judgment if during the pendency of the action the taxes become delinquent for five years. That issue is not before us. Nor are we suggesting that our interpretation should jeopardize an action for unpaid taxes and frustrate attempts to collect the full amount of unpaid taxes. That issue is likewise not before us. We hold only that the county collector is mandated by the Scavenger Act to ‘publish an advertisement giving notice of the intended application for judgment for sale of all tracts of lands and lots upon which all or part of the general taxes for each of 5 or more years are delinquent.’ We express no opinion as to whether every parcel included in such advertisement must be the subject of a judgment for sale; the Scavenger Act provides that ‘[n]o sale of lands or lots pursuant to this Section shall be final until confirmed by the Court *•*.’ Ill. Rev. Stat. 1977, ch. 120, par. 735a.” 88 Ill. App. 3d 272, 278.

The citation of In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, by the objectors is somewhat remarkable, for there the court observed that under the Scavenger Act the scope of judicial discretion regarding a sale is broad. In that case the county collector had received the highest bid at a scavenger sale, had struck off the property as sold, and had received tender of payment. The court said that the collector may not reoffer the property for sale. The court held that under such circumstances the collector was without discretion whether to report to the court for confirmation of the sale. The court contrasted the collector’s responsibility in that respect under the Scavenger Act with that of the court. The circuit court, said the appellate court, has broad discretion during review of a sale. The appellate court cited People v. Anderson (1942), 380 Ill. 158, which involved the sale of real estate for delinquent and forfeited general taxes. This court observed in Anderson: “The rule is firmly established that the chancellor possesses a broad discretion in approving or disapproving a report of sale, and that his decision will not be disturbed unless there is a clear abuse of discretion.” (380 Ill. 158, 163.) It also cited Evans v. Hunold (1946), 393 Ill. 195, where this court stated: “In cases of sales requiring the approval of the court, the chancellor has a broad discretion to confirm or disapprove such sales.” 393 Ill. 195, 200.

For the reasons given, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

An underpinning of the majority opinion is its conjecture that an action to collect unpaid taxes “might have” to be dismissed once a scavenger sale of the taxpayer’s property occurs (97 Ill. 2d at 443), thereby relieving the property-owner of personal liability for those taxes. This issue was not briefed by the parties either in this court or in the appellate court. The majority concludes, on the basis of the uncertainty it perceives, that the legislature could not have meant to require the county collector to include in a scavenger sale properties against whose owner an action to collect back taxes is pending. This possibility, however, is foreclosed by the clear statement in the Scavenger Act itself that “[confirmation of the sale shall in no event affect the owner’s personal liability to pay the taxes, interest and penalties as provided in this Act; nor shall confirmation prevent institution of a proceeding under Section 275 of this Act to collect the amount remaining due after the sale.” (Ill. Rev. Stat., 1981 Supp., ch. 120, par. 716a.) This sentence was made a part of the Act by Public Act 82 — 987, paragraph 1, which became effective during the pendency of this appeal but was not brought to the attention of this court by either party. (See Ill. Ann. Stat., ch. 120, par. 716a, at 28 (Smith-Hurd Supp. 1982).) This provision would apply to the parcels and liabilities at issue in this case, as no scavenger sale involving them has yet been held and there has been no confirmation of any sale with respect to them.

Under the current and relevant version of the Scavenger Act the law is clear: A taxpayer who is delinquent in paying his property taxes is liable at all times for the amount of the arrearage (see Ill. Rev. Stat. 1981, ch. 120, par. 508a (“[t]he owner of real property on January 1 *** in any year shall be liable for the taxes of that year”)), and if he allows five years to go by without paying it he stands to lose his property too, provided that the property has been “forfeited” prior to that time under section 275 of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 756) and provided that the various requirements of the Scavenger Act itself are fully complied with. This arrangement has the salutary effect of encouraging payment within the five years as well as of placing property on which taxes have been unpaid for more than five years in more responsible hands. Schreiber v. County of Cook (1944), 388 Ill. 297, 305; In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 1108.

I believe that the 1982 amendment which I have quoted was declaratory of existing law (see Biggins v. People (1880), 96 Ill. 381, 384 (strong dictum)). In any event five or more years of overdue taxes would never be “satisfied by a bid of *** $143” (97 Ill. 2d at 443) because the county itself is free to bid at such a sale for purposes of driving the price upward or of purchasing the property to offer at the next scavenger sale if the bids it receives are not to its liking, as well as because of important statutory safeguards incorporated in the 1978 amendments to the Act. These amendments require, except in the case of single-family residential units, that the amount to be paid for redemption be at least equal to all delinquent taxes on the property at the time of the sale. (Ill. Rev. Stat. 1979, ch. 120, par. 716a.) The amendments also provide that no certificate of purchase shall be issued to any person unless he executes and delivers to the county clerk an affidavit that he is not the party responsible for the payment of the delinquent taxes and is not bidding on the property as the agent for the party who is responsible.

However, the question of what the earlier law was can have no bearing on this case. It is now moot. That law obviously no longer applies to the parcels which are the subject of this appeal. (See People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231.) This court’s interpretation of what the earlier law was with regard to abatement can shed no light on the question this case poses, which is whether the Scavenger Act as it currently reads is mandatory or directory for purposes of a scavenger sale which has yet to occur.

The majority opinion comes to the conclusion that the Act was directory prior to the amendment stating that the collector’s duty was mandatory largely as the result of its concern that to do otherwise might jeopardize the collection of the full or a substantial amount of tax debts that are overdue for more than five years. As there are no grounds for this fear under the present version of the Scavenger Act, which guards against such a possibility in so many words, there is no reason for saying, as the majority does, that the provision in the Act that the county collector “shall” apply for judgment for sale and that the circuit court “shall” give judgment after allowing a hearing on objections has other than a mandatory effect. I believe it would defeat the purpose of the Scavenger Act to hold it directory merely because the delinquencies in the instant case arose prior to the amendment of the Act. This is especially the case in view of the clear language of the amendment stating that the owner’s personal liability is not affected by confirmation of a sale. This language supports the conclusion that actions in debt filed before the effective date of the amendment would not abate in the event of a scavenger sale which occurs after the effective date, as the scavenger sale in this case must.

I believe that this appeal has been rendered moot for another reason — the amendment to the Scavenger Act which the majority emphasizes in concluding that the Act is currently mandatory and not directory. Regardless of the wording of the Act at the time the parcels in question were permitted to be withdrawn from the scavenger sale, the amendment which the majority emphasizes explicitly states that it is the mandatory duty of the collector to include in the application for the scavenger sale all properties on which taxes have gone unpaid for five or more years. Because the parcels which are the subject matter of this proceeding and which were removed from a scavenger sale several years ago on the application of the collector and have remained in status quo pending the resolution of this case fall into that category, it will be mandatory, in view of the amendment, for the collector to include them in the next scavenger sale. I do not, therefore, understand how anything worthwhile is accomplished by quarreling over whether the Scavenger Act was mandatory or directory at the time the parcels in question were withdrawn from the previous sale when they clearly must be included in a future sale. The sensible thing to do, as I see it, is to dismiss this appeal as moot and permit the current law to operate on the parcels in question, as it was intended to do. People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231.

The majority finds support for its position that prior to the amendment the Scavenger Act was not mandatory by pointing out that the amendment, although it made the duties of the collector mandatory by explicit language, did not use the same explicit language in describing the duties of the circuit court. The majority therefore postulates that since after the amendment the word “shall” is retained, unaccompanied by further mandatory language, in describing the function of the circuit court, the word “shall” wherever used in the Scavenger Act prior to its amendment was merely directory. The duty of the court, however, as set forth in the statute both prior and subsequent to the amendment, was to entertain objections of taxpayers and not objections of the collector. Once the circuit court decides that the objections of the property owner lack merit, it is and always has been the court’s obligation to follow the statute and “give judgment for *** sale” (Ill. Rev. Stat. 1979, ch. 120, par. 716a). To that extent, apart from whatever the statute might say, the circuit court judge is under a mandatory obligation to follow the law as set forth in the Act, for he is sworn to uphold the law. Further language in the statute making his duties mandatory would be surplusage and therefore unnecessary.

While perhaps the following discussion is academic in view of the amendments to the Scavenger Act discussed by the majority, as well as in this dissent, I believe that the act as it existed when the collector withdrew the parcels in question was mandatory and the collector had no authority, even at that time, to withdraw the parcels from the sale.

The scavenger sale procedure involves a six-step process. First, the collector publishes an advertisement giving notice of the intended application for judgment for sale of parcels which have been tax delinquent for the requisite time. Second, the collector applies for judgment for sale. Third, after hearing objections, the circuit court gives judgment ordering a public sale to the highest cash bidder. Fourth, the collector ' offers the property for sale. Fifth, the collector within the time prescribed by the statute files his report of the sale with the circuit court. Sixth, and last, the circuit court is requested to confirm the sale.

While the precise issue presented by this appeal— whether a parcel once included in the order of judgment and sale can later and prior to sale be deleted at the collector’s request — was not decided in either People ex rel. Larson v. Rosewell (1980), 88 Ill. App. 3d 272, or In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, the appellate court in both cases held that the particular stage of the Scavenger Act proceeding it was called upon to address was mandatory, and the majority does not appear troubled by those results. In the former case, the appellate court, dealing with the first stage in the proceeding, held that the collector did not have discretion to omit property from the advertisement prescribed by statute giving notice of the intended application for judgment for sale of parcels on which taxes were owing for five or more years. In the latter case, which involved the fifth stage of the scavenger-sale proceeding, the appellate court held that where a properly conducted scavenger sale had been held and a bid received, the collector had no discretion to withdraw the offer for sale to give the county board the opportunity to submit a bid on a reoffer of the property even though the sale had not yet been confirmed by the circuit court. In that circumstance the collector was obliged to report the sale to the circuit court and request confirmation. I agree with the appellate court conclusions in Larson and Application of Rosewell that the first and fifth steps of the scavenger sale process are mandatory.

“Generally, the use of the word ‘shall’ is regarded as indicative of a mandatory intent” (People v. Youngbey (1980), 82 Ill. 2d 556, 562; see Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21). I find persuasive the fact that the Scavenger Act employs the word “shall” at the beginning of each step in the instructions for carrying out a scavenger sale except for the final step relating to application to the court for confirmation of the sale. By prefacing its description of each of the first five procedures with the word “shall,” and in adopting the scavenger sale as a method of returning tax-delinquent property to the tax rolls so that it might become revenue producing, the legislature demonstrated its intention to adopt a mandatory procedure. Looking to the purpose of the scavenger-sale legislation, I find nothing to suggest that the word “shall,” as repeatedly employed in the statute, should be regarded as indicating other than a mandatory intent.

In one of the provisions of the Scavenger Act the word “shall” is used twice in the same sentence. The provision in question reads: “All such lands and lots shall be offered for sale in consecutive order as they appear in the delinquent list and the County Collector shall file his report of sale in the Court within 30 days of the date of sale of each tract of land or lot.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 120, par. 716a.) There appears to be no justification for offering parcels included in the scavenger sale in any order other than the one provided by the Act, that is in consecutive order as they appear in the delinquent list. In fact, orderly disposition demands such a procedure. I believe this compels us to construe the word “shall” as first used in the above-quoted provision as mandatory, and it does not make sense to interpret the word as mandatory as used in one part of a sentence or statute and directory as used in another portion. “Where a word is so used in one portion of a statute as to have a clearly defined meaning, the same word when used in another portion of the same statute” should be given the same meaning unless something in the context indicates the legislature intended the contrary. (People v. Talbot (1926), 322 Ill. 416, 422; see Moran v. Katsinas (1959), 16 Ill. 2d 169, 174; People ex rel. Lipsky v. City of Chicago (1949), 403 Ill. 134, 142; Lawton v. Sweitzer (1933), 354 Ill. 620, 625; 82 C.J.S. Statutes sec. 348, at 728-29 (1953).) As there is no indication to the contrary, I would apply a consistent interpretation. It would make little sense to construe as directory rather than mandatory the provision that the collector “shall” apply for judgment for sale and that the court “shall” give judgment after hearing objections, where the word “shall” has, as I have pointed out above, already been held by the appellate court in People ex rel. Larson and in In re Application of Rosewell to carry its ordinary mandatory meaning when' used eight sentences before and four sentences after that provision in the same statute, and nothing in the context of the Revenue Act as a whole indicates otherwise.

In view of the purpose the legislature was seeking to accomplish, there is no reason for construing the word “shall” as if it were “may.” To do so would make of the scavenger sale merely an alternative device for attacking tax delinquency instead of what I believe the legislature intended it to be — an ultimate procedure for clearing up delinquencies and restoring property to the tax rolls. The Scavenger Act provides that the remedy it affords is “in addition to other remedies for the collection of delinquent taxes.” (Ill. Rev. Stat. 1981, ch. 120, par. 716a.) As I interpret this provision it means that the collecting authorities have discretion to pursue other avenues for collection until taxes become delinquent for five years. The collector is not, of course, required to wait for five years to obtain a judgment for unpaid taxes. He can proceed at any time after forfeiture. When the five-year point is reached, however, it becomes mandatory to proceed under the Scavenger Act as the most decisive step in combating the tax delinquency. It appears to me that the intention of the legislature was to take decisive action through a scavenger sale in dealing with properties which have remained delinquent for more than five years.

If discretion were vested in the collector to decide when and what parcels should be included in the scavenger sale or if discretion could be exercised by the court other than at the time it hears objections of the property owners or at the time its confirmation is requested, the purpose the legislature had in mind would be completely contravened. The Act provides no standards for the collector to follow if his responsibilities under the Act are discretionary rather than mandatory. Allowing the collector uncontrolled discretion in deciding which tax-delinquent parcels to include and which to exclude would open the door to the possibility of discrimination among various owners, a result the legislature obviously could not have intended, and one which would not benefit the public. The collector would be free to permit property owners he preferred, many of whom might be judgment-proof, to continue to pocket the income from their properties, while they are allowed to continue to ignore their duty to pay real estate taxes by not being included in the scavenger sale. And even assuming that the State’s Attorney has prudently investigated and decided prior to instituting suit that the proposed defendant is not judgment-proof, the State’s Attorney may have reached an erroneous conclusion, and in any event this is no guarantee that the assets of the proposed defendant may not be dissipated during the pendency of the personal action. I do not regard such an arrangement as in the public interest when measured against the alternative that including the delinquent property in the scavenger sale might succeed in returning it to the tax rolls without in any way endangering any actions in debt the collecting authorities may choose to bring in view of the recent amendment referred to above. Problems with in personam actions to collect delinquent taxes were outlined in the law review article cited in the majority opinion, where the author observed:

“There are a number of unique problems with suing in personam. An obvious concern is for fairness on the part of County officials in choosing who, out of thousands of delinquents, will be sued in this way. Other difficulties involve adequate service of process and the legal ability to satisfy a judgment by reaching the personal assets of the beneficiaries of a land trust.” J. Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Rlinois: The Role of the Collection Provisions of the Rlinois Revenue Act, 26 De Paul L. Rev. 1, 12 (1976) (hereinafter cited as Lawlor, Real Property Tax Delinquency).

These observations are borne out by inspection of the files of the clerk of the circuit court of Cook County in the cases involving the property the collector seeks here to exclude from the scavenger sale because of the pendency of those cases. Those files reveal that service was not obtained on almost half of the individuals whose property was excluded because of pending suits for the collection of taxes, even though the complaints in those suits were filed and the summons issued in 1977, 1979 and 1980 with approximately three-quarters of the filings occurring in the two earlier years. By way of illustration of the kind of problems encountered, in People v. Exchange National Bank, No. 79 CO 5172, a case in which only a bank was named as defendant, the summons was directed to the bank at 6848 South Stony Island, Chicago, Illinois, an address at which the bank was never located. The summons in that case has not been served to this day. In both People v. Hutter, No. 79 CO 5035, and People v. Routt, No. 77 CO 2010, the circuit court clerk’s files reveal that the property owner had moved to another State and had never been served. And in People v. Spencer, No. 79 CO 5134, the summons was directed to a nonexistent address and no other address was provided for service.

In addition, the collector does not appear to have been consistent in his choice of defendants in cases where the property was held in trust by a bank in years in which taxes on it were unpaid: in some instances the bank alone was sued, while in others the beneficiary was named as a defendant. The explanation for this difference in treatment is probably that the collector or the State’s Attorney was unable to discover who the beneficiary was. This explanation brings into question the accuracy of the majority’s statement that “[t]he State’s Attorney, prior to the institution of the Scavenger Act proceedings, must have been satisfied that the actions in debt against the objectors involved here would be productive” (97 Ill. 2d at 448). Because this court has held that the trustee of a land trust is not liable for unpaid taxes (People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479), the collector presumably would have sued the beneficiary and not the trastee had he known the identity and address of the former. In the frequent instances in which the trustee alone was sued and the State’s Attorney by interrogatories elicited the name of the beneficiary from the trustee, it is obvious that the State’s Attorney, before filing the suit, did not know either who the beneficiary was or where he resided or both, and he therefore did not have enough information to satisfy himself that the action “would be productive.”

More importantly, the observations contained in the law review article from which I have quoted above, combined with an examination of the circuit court clerk’s files in the cases involving property the collector seeks to exclude from the scavenger sale, give me little confidence that orderly enforcement of the tax laws would be possible were the collector to rely primarily on in personam actions when taxes remain unpaid for more than five years, as he is free to do under the majority’s holding that the scavenger sale provisions are merely permissive. I am unwilling to attribute this intent to the legislature, particularly in view of its repeated use of the word “shall” in the Scavenger Act.

The wording of section 275 of the Revenue Act is also helpful in construing the scavenger sale provision. Section 275 employs the word “may” in referring to the county board’s authority to bring actions in debt to recover delinquent taxes. The use of that word indicates the legislature intended actions in debt as a permissible but discretionary means of recovering tax delinquencies. By way of contrast, the repeated use of the word “shall” with respect to property subject to sale under the Scavenger Act demonstrates the unambiguous intent of the legislature that properties be offered for sale after remaining delinquent for five years.

The collector argues that the scavenger sale can be had at any time after the action in debt proves unsuccessful, but this argument is answered by the Scavenger Act itself, which provides, as set forth above, that delinquent parcels “shall be offered for sale in consecutive order as they appear in the delinquent list.” This requirement can only be interpreted to mean that once property becomes tax delinquent for more than five years, it must be offered for sale each year until it is sold. It does not contemplate that the offer of a parcel for sale may be deferred until the collector or the county board has pursued other methods of collection.

The majority also observes that the Scavenger Act, if applied as mandatory, conflicts with article II, section 1, of the Illinois Constitution by directing the judiciary as to how cases must be decided, a violation of the separation-of-powers provision. This conclusion misconceives the limited role of the judiciary in a scavenger-sale proceeding.

A scavenger sale is similar to a foreclosure proceeding where the property subject to the sale is sold to the highest bidder. The Scavenger Act provides safeguards against the collector obtaining judgment against nondelinquent real estate which he arbitrarily chooses, thereby protecting the property owner against being deprived of his properly without due process of law. The owner’s due process rights, both substantive and procedural, are guaranteed by jurisdictional prerequisites which the circuit court is authorized and expected to enforce. The collector must first establish that the property has been tax delinquent for at least five years. Next, the property owner must receive notice and be given an opportunity to object and have a hearing on his objections. It is only if the court finds that the required delinquency exists and concludes that the property owner has no valid defenses to inclusion of his property in the scavenger sale that the court is required to apply the law and direct that the sale proceed. By that stage of the proceeding the court has fulfilled its role as guardian of the due process rights of the property owner.

The Scavenger Act does not tell the circuit court how it must decide any proceeding relating to property which the taxing authorities are mandated to sell under the Act. It merely sets forth mandatory prerequisites to a foreclosure sale. Once the court decides these are met, it then becomes the court’s responsibility to enter an order directing the sale to proceed. The statutory language directing that “the court shall give judgment for sale” becomes operative only after the court has found that the requirements for a sale under the Scavenger Act exist and that the collector has discharged his mandated duties under the Act.

People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, supports this view. That case involved an application for a tax deed which the trial court refused to issue. The reason for the refusal was the taxpayer’s failure to attach a transcript of evidentiary findings to the court order as the statute required. The taxpayer’s argument was that this requirement violated the separation-of-powers provision. The court rejected the argument, stating:

“[Pjroceedings relating to tax sales, redemptions and deeds are entirely statutory in origin and nature. The section 266 amendment *** is but one of many statutory conditions upon which issuance of a tax deed is predicated. This requirement does not purport to direct how a court should decide cases nor does it circumscribe the power of a judge to determine facts and apply the law to them.” (40 Ill. 2d 293, 301-02.)

Similarly, the Scavenger Act does not circumscribe the power of the court to determine facts and apply the law to them. In fact it contemplates that, at an early stage of the proceeding, the court will perform that very function. In addition, the Act provides that at the end of the proceedings, in confirming the sale, the court shall determine that there has been full compliance with the requirements of the statute.

The Scavenger Act was designed to effect the public policy of filling the public treasury at minimum expense to citizens generally. Statutes of this sort are usually given a mandatory construction when phrased in language which would permit it, on the theory that a construction of the statute as permissive only would defeat its purpose. (State ex rel. Snow v. Farney (1893), 36 Neb. 537, 54 N.W. 862 (tax statute similar to Scavenger Act); State ex rel. Robinson v. King (1974), 86 N.M. 231, 522 P.2d 83; see generally 2A Sutherland, Statutory Construction secs. 57.03, 57.04, 57.14, and especially sec. 57.20 (4th ed. 1973).) If inclusion in a scavenger sale is left to the discretion of the county collector, there would be no assurance of a remedy against a taxpayer who is delinquent for more than five years, in view of the difficulties I have already mentioned with regard to service of process as well as determining whether a suit will be productive, and in light of the prosecuting authorities’ inability to proceed simultaneously against the literally thousands of tax delinquents who are candidates for civil suits for recovery of overdue taxes at any one time. (See Lawlor, Real Property Tax Delinquency, 26 De Paul L. Rev. 1, 12 (1976).) This would not comport, in my opinion, with the legislative judgment that the Scavenger Act is needed to provide a speedy and efficient remedy against delinquent taxpayers and to return delinquent properties to the tax rolls at the earliest opportunity. This is indicated by the fact that the period of delinquency before a property becomes eligible for a scavenger sale has been reduced by the legislature from 10 years to five. (Compare Ill. Rev. Stat. 1981, ch. 120, par. 716a (five years’ delinquency sufficient to trigger a scavenger sale), with Ill. Rev. Stat. 1977, ch. 120, par. 716a (10 years’ delinquency required).) The purpose behind this change was explained by Senator Hynes, now assessor of Cook County and then President of the Senate, as follows:

“[The amendment] is vital because it is going to end up saving substantial amounts of money for local governments and for the taxpayers especially in urban areas, and more importantly, it is going to help with the revitalization of our cities. At the present moment, many of these parcels of property are tax delinquent. They are unused and in fact, are unusable and this will reduce by five years the period of time necessary to get these properties back on the tax rolls and make them usable ***.” Transcript of 80th General Assembly Regular Session, at 41 (June 22, 1978).

I believe that a mandatory construction of the Act is necessary to effect its purpose, and I therefore dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE RYAN

license: Public Domain

text:
    (No. 52944, 53038 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PERRY COBB et al., Appellants.

      Opinion filed October 4, 1983.

      Theodore A. Gottfried, State Appellate Defender, and Steven Clark, Deputy Defender, of the Office of the State Appellate Defender, of Chicago, for appellant Perry Cobb.
    James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, of counsel), for appellant Darby Williams.
    Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, Michele A. Grimaldi, and Bruce A. Cardello, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.

      Helene M. Kardell, of Schiff, Hardin & Waite, of Chicago, for amici curiae the National Alliance Against Racist & Political Repression et al.

   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Perry Cobb and Darby Williams were jointly tried by jury in the circuit court of Cook County for the armed robbery and murder of Melvin Kanter and Charles Guccion. The first and second trials ended in hung juries. At the third trial, the jury found Cobb and Williams guilty of both crimes, and they were sentenced to 30 to 60 years’ imprisonment for armed robbery. Pursuant to section 9—1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)), the People requested a sentencing hearing for the murder convictions. The jury found that one or more aggravating factors set forth in section 9—1(b) (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(b)) were present and that no mitigating factors existed sufficient to preclude the imposition of the death penalty. (See Ill. Rev. Stat. 1977, ch. 38, par. 9—1(d).) The trial court sentenced the defendants to death, but stayed the sentences pending direct appeal to this court. (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d Rules 603, 606.) We reverse the defendants’ convictions and remand this cause to the circuit court for a new trial.

At the third trial, Dr. Robert Stein, the medical examiner, testified that both victims died as a result of bullet wounds to the head. The key prosecution witness, Phyllis Santini, testified that on the evening and early morning of November 12 and 13, 1977, she spent approximately 10 hours driving with various individuals. At approximately 8 p.m., she met Johnny Brown, her boyfriend, at Terminal Liquors. They drove to Sheridan Liquors, where they met Earl Grant. They continued driving for several more hours. After Grant left the group, Brown and Santini met Cobb and Williams at 11:30 or 12 o’clock near the Biarritz Lounge. Santini had not previously met Williams, but had known Cobb and was aware of his criminal background and violent reputation.

Santini stated they subsequently drove back to Terminal Liquors. Cobb and Williams bought a bottle of liquor, and they continued their ride. Santini argued with Johnny Brown about their relationship. According to Santini, Brown left the group about 2:30 or 3 a.m.

Santini testified that she continued driving with Cobb and Williams. Between 4:30 and 5:30 a.m., Cobb asked Santini to “do him a favor” and told her if she cooperated he would take care of her problems. She had been complaining about having been beaten by a man with whom she had been living. She stated that Cobb told her to drive to a friend’s house located on Kenmore Avenue. When they arrived, Cobb went inside but returned in a short time. He then told her to drive back to Terminal Liquors. While they drove, he talked about money. She testified that Cobb said “if he could just put his hands on a few thousand, that he could turn it over and over again, and that he would really want to get back at the Feds for what they had done to him, taking his money and his jewelry and his cars.” When they approached Terminal Liquors, Santini testified that Cobb told her to park across the street from Mel’s Red Hots, a diner, located on Clarendon Avenue. He instructed her to wait in the car and keep the motor running. He also told her not to worry. About 5:45 a.m., Williams and Cobb left the car and walked across the street.

Santini testified that before Cobb and Williams entered Mel’s, they spoke to Earl Grant, who had just crossed Broadway from Terminal Liquors. After speaking briefly with him, Grant remained outside while Cobb and Williams entered the diner from the Broadway entrance. Santini said that when they first entered Mel’s she could see their heads. After a few minutes, they disappeared from view, but within approximately 15 minutes they ran back to her car. Santini said she did not see guns, money or jewelry. Cobb told her, “Let’s get the hell out of here.” She said he grabbed her hair when she indicated she did not know where to go. As she drove away, she saw Earl Grant running from the scene of the crime. She testified that, on the way back to the house on Kenmore, Cobb and Williams said that the people on the street were misinformed. They had told them Mel kept a few thousand dollars at the store, but they had only found a few dollars.

Santini stated she learned for the first time the next afternoon that an armed robbery and murder had been committed at Mel’s. She did not tell the police, however, until three weeks later, on December 5, 1977. She said she failed to contact the police earlier because of her fear for her life.

The other chief prosecution witness, Arthur Shields, a bartender at Terminal Liquors, testified that he entered Mel’s a short time after defendants had left. He discovered the bodies of Melvin Kanter, the owner, and Charles Guccion, a customer, in the restroom. He had been at the store a few minutes earlier looking for his boss, at which time he had seen both victims alive.

Shields testified that he had seen two black men standing inside the door at Mel’s about the time the crimes were committed. One was approximately 5 feet 11 inches tall, weighed approximately 170 to 175 pounds, had a thin moustache, and wore a brown coat and an orange stocking cap. The other was approximately 5 feet 7 inches tall, had a stocky build, a dark complexion, a round face, and a beard. Shields was impeached, however, by various inconsistencies in his identification testimony at the three trials. Shields also made a positive identification of the defendants at the third trial, but was impeached by his testimony from the first two trials that they resembled the men he saw, but he could not make a positive identification.

When confronted with these inconsistencies, Shields also admitted he previously stated that he had not seen the faces very well and thought all blacks looked alike in pictures. At the second trial, he admitted that he did not pay careful attention to the faces of the two men because he assumed they were regular customers. He also admitted he had only seen the men for approximately five seconds.

In their defense, Cobb and Williams sought to create a reasonable doubt of their guilt by discrediting Arthur Shields and Phyllis Santini, and implying that Phyllis Santini and Johnny Brown committed the crimes. They contended that Phyllis Santini could not be believed because she participated in the crimes. According to her testimony, she was at the scene of the crimes and drove the getaway car. They argued that, as an accomplice, she was not a credible witness. Similarly, defendants argued, Arthur Shields was also not a credible witness, since he only saw the assailants for five seconds and yet claimed his recollection of their features improved with successive trials.

When arrested, Cobb was in possession of some items which had been taken from the victims. Cobb testified that Brown had sold the stolen watch and jewelry to him after the murders were committed.

Two witnesses, Charles Bonner and his brother, Robert Bonner, testified that they were with defendant, Darby Williams, and others in Terminal Liquors on the evening following the murders. When two police officers came into the bar, Arthur Shields, the bartender, told the police that Williams was a regular customer and was not the individual he had earlier seen in Mel’s. Additionally, Charles Bonner testified that Johnny Brown was a notorious drug dealer and pimp who frequently attempted to sell stolen jewelry to support his drug habit. According to Bonner, Brown frequently associated with a tall friend who often wore an orange hat.

The defendants made offers of proof concerning inculpatory statements made by Phyllis Santini after the crimes were committed. The defendants offered to prove that Patricia Usmani would testify that, in June of 1978, she had a conversation with Phyllis Santini and Susan Darks in Santini’s car. Santini admitted that she participated in the robbery of the restaurant, along with Johnny Brown and two other individuals whom she did not name. She also acknowledged that all four of them were inside the restaurant and that Brown had shot the two men. After the robbery, Brown sold Perry Cobb the watch and ring taken from Melvin Kanter but kept the gold necklace. After hearing the offer of proof, the trial court refused to allow Usmani to testify because a proper foundation had not been laid to impeach Santini by a prior inconsistent statement.

The defendants also sought to call Carol Griffin, a school truant officer. The defense represented that Griffin would testify that Santini told her that she expected to receive a reward in exchange for her testimony. The defense had earlier attempted to lay a foundation for Griffin’s testimony by asking Santini, on cross-examination, whether she knew Carol Griffin and whether she had told Griffin that she expected a reward for testifying. In ruling that Griffin could not testify as to this statement, the court ruled that the defense had not set a time or place of the alleged conversation. We will discuss further the offers of proof and the court’s rulings as to Usmani and Griffin later in this opinion.

At the conclusion of the third trial, the defendants requested an accomplice instruction. The trial court refused to give the instruction, reasoning that Santini testified she was not “fully aware” that Cobb and Williams committed the crimes until the following day. This is not the test of whether an accomplice instruction should have been given. In People v. Robinson (1974), 59 Ill. 2d 184, in discussing the test used to determine whether a witness is an accomplice, this court stated:

“The question is whether there is probable cause to believe that [the witness] was guilty either as a principal, or on the theory of accountability.” (59 Ill. 2d 184, 191.)

The court, in Robinson, stated that the finding that a witness was an accomplice entitled the defendant to a cautionary instruction as to the reliability of the witness’ testimony. In People v. Nowak (1970), 45 Ill. 2d 158, this court stated that an accomplice is one who could himself have been indicted for the offense either as a principal or as an accessory. See also People v. Hrdlicka (1931), 344 Ill. 211, 221-22.

Although Santini professes not to have known about the planned armed robbery of Mel’s restaurant, there is, nonetheless, sufficient evidence in the record to justify her indictment either as a principal or on the theory of accountability (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 2). We have detailed above Santini’s activities during the night as she drove Brown, Cobb and Williams, and later just Cobb and Williams, from one place to another. When they arrived at Mel’s restaurant she was told to park across the street and keep the motor running. She saw Cobb and Williams meet Earl Grant outside Terminal Liquors and noticed that Grant remained outside Mel’s. After seeing the men hurriedly flee the scene of the crime, she aided their escape by driving the getaway car. During the getaway she heard the men discuss their disappointment at having obtained only a small amount of money. Finally, she failed to disclose to the police her knowledge of the crime until three weeks later. Under these circumstances, Santini could have been indicted for both armed robbery and murder. (People v. Kessler (1974), 57 Ill. 2d 493.) The court erred in not giving the defendants’ tendered cautionary accomplice instruction.

Returning now to the offer of proof as to Usmani’s testimony, after the defense made its offer of proof, the prosecution argued to the court that Usmani was not on the list of witnesses and also that a proper foundation for her testimony had not been made. Defense counsel responded that they had not succeeded in locating Usmani until October 2, 1979, two days before, despite a diligent search. They also noted that Santini had already testified on September 28, 1979. While she had not been questioned at that time about her statement to Usmani, the defense had not known what Usmani would tell them until she was located.

The trial court ruled that Usmani could not testify without the defense laying a foundation for the introduction of the statement as a prior statement inconsistent with Santini’s testimony. The defense then sought to recall Santini. The prosecution argued that the defense had just told them that morning that it would not seek to recall Santini. Consequently, the prosecution had informed Santini she would not be needed and she had gone home. Based on these assertions, the prosecution argued that the defense was improperly seeking to delay the trial and asked the trial court to deny a defense request for a continuance. The trial court ruled that Santini could testify if she were present, but refused to grant a continuance or postponement to allow the defense to locate her. No representation was made that Santini could not be recalled without a lengthy delay. The court also did not ask the defense how long it would take to procure her. As Santini was not immediately available, the defense was forced to rest without presenting further witnesses.

The granting or refusing to grant a motion for continuance in a criminal case lies in the sound discretion of the trial court. (People v. Lott (1977), 66 Ill. 2d 290, 296.) Section 114—4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114—4(f)) provides: “After trial has begun a reasonably brief continuance may be granted to either side in the interests of justice.” Section 114—4(h) provides: “This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.” (Ill. Rev. Stat. 1977, ch. 38, par. 114—4(h).) Thus there are competing interests that must be weighed in considering a motion for a continuance made during trial — the rights of the parties and the diligent disposition of the case. In Lott this court stated:

“There is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend.” People v. Lott (1977), 66 Ill. 2d 290, 297.

In our case Santini was the prosecution’s most important witness. If believed by the jury, her testimony, standing alone, is sufficient to convict the defendants. It is her testimony that recites every detail of the evening’s activities. Without her testimony the prosecution would be left with only some circumstantial evidence and the vague equivocal testimony of the bartender, Shields. Usmani’s testimony concerning Santini’s admission directly contradicts the testimony that Santini gave at the trial. If believed by the jury, this out-of-court admission would seriously damage the State’s case against these defendants. Usmani’s testimony concerning Santini’s statement also supported the defense theory that Brown and Santini committed the crimes. Moreover, her testimony also supported Cobb’s contention that he got the stolen watch from Brown and explained why the police never recovered a gold necklace. In a capital case, the importance of an early disposition of the case weighs less heavily than the paramount goal of ensuring that two possibly innocent men are not executed. We therefore hold that the trial court abused its discretion by refusing to allow the defense a reasonable opportunity to locate and recall Santini to perfect a foundation for Usmani’s testimony.

As to the offer of proof of Carol Griffin’s testimony, we find that the trial court also erred when it excluded evidence of Phyllis Santini’s admission that she expected to receive a reward in exchange for testifying for the prosecution. In laying the foundation for this testimony, defense counsel, on cross-examination of Santini, had asked:

“Q. Did you ever tell anyone you expected to receive a reward to testify in this case?
A. No, sir.
MR. MARE: Q. Do you know Carol Griffin?
THE WITNESS: A. Yes.
Q. Had you ever told Carol Griffin you were going to receive a reward for your testimony in this case?
A. No, sir.”

When the defense called Carol Griffin to testify that Phyllis Santini told her that she expected to receive a reward in the case, the People objected, arguing that a sufficient foundation for this prior inconsistent statement had not been laid. The court excluded Griffin’s testimony and refused to allow the defense to recall Santini to set the time, place, or circumstances of the alleged conversation.

Before a witness may be impeached by his prior inconsistent statement, a proper foundation must have been laid to prevent unfair surprise and give the witness the opportunity to explain. (People v. Smith (1980), 78 Ill. 2d 298.) In seeking to meet this requirement, counsel generally must direct the attention of the witness on cross-examination to the time, place, and circumstances of the statement as well as to its substance. People v. Sanders (1974), 56 Ill. 2d 241.

In People v. Henry (1970), 47 Ill. 2d 312, this court discussed the accepted rule of requiring that the attention of the witness be called to the time, place, and circumstance of the alleged inconsistent statement and said:

“However, we consider under the circumstances of this case that the foundation was adequate to permit the defendants to attempt to impeach the witness. The rationale of requiring a foundation is to protect the witness against unfair surprise and to permit his explanation of the prior statement. We believe the questions propounded on cross-examination did substantially satisfy the reasons for the rule requiring a foundation. Wigmore criticizes what he considers formalism in this regard. He says: ‘If the preliminary question is to be useful as a warning to enable the witness to prepare to disprove the utterance or to explain it away if admitted, it must usually specify some details as to the occasion of the remark. The witness may perhaps without this understand the occasion alluded to; but usually he will not, and in such a case this specification of the details is a mere dictate of justice. The modern tendency of American Courts, however, is to lose sight of the fact that this specification is a mere means to an end (namely, the end of adequately warning the witness), and to treat it as an inherent requisite, whether the witness really understood the allusion or not. The result of this is that unless the counsel repeats a particular arbitrary formula of question, he loses the use of his evidence, without regard to the substantial adequacy of the warning. Such a practice is impolitic and unjustified by principle.’ [Citation.]” (47 Ill. 2d 312, 322.)

In Henry this court also stated that it is within the discretion of the trial court to permit the recalling of the witness for the purpose of perfecting the foundation if the defendants seek to recall the witness. People v. Henry (1970), 47 Ill. 2d 312, 322.

In our case we feel that Santini was properly alerted to or warned of her prior inconsistent statement by the questions that had been asked on cross-examination. If, however, the trial court felt that the proper foundation had not been laid, under the circumstances of this case we find that the court abused its discretion in not permitting defense counsel to call Santini back to the stand to perfect the foundation. We again emphasize the crucial nature of Santini’s testimony and how important to the concept of justice it is that the defendants be given every opportunity to present testimony to the jury that legitimately may cast doubt on the veracity of her testimony. The failure to give the accomplice instruction, the limitation on the use of Usmani’s testimony, and the denial of the use of Griffin’s testimony deprived the defendants of a fair trial and require the reversal of the defendants’ convictions and that the cause be remanded to the circuit court of Cook County for a new trial.

Cobb and Williams made a pretrial motion for severance, which was denied. Although the defendants were admittedly jointly tried on the supposition they acted together, the People now contend that Cobb should not be permitted to raise the exclusion of Patricia Usmani’s testimony as error. The People argue that Usmani was solely Williams’ witness and Cobb did nothing to secure her presence at trial. Moreover, the People contend Cobb’s defense was simply that the prosecution did not sustain its burden of proof, and unlike Williams, he did not seek to shift the responsibility for the crimes to Santini and Brown. It is therefore argued that Cobb should not be permitted to rely on an error raised only by Williams for purposes of appeal. Similarly, the People also submit that Cobb did not make a claim of error in his new trial motion or in his brief before this court concerning the exclusion of Carol Griffin’s impeaching testimony. Consequently, it is argued that Cobb should not now be permitted to rely on appeal on this claim of error.

In light of the prejudicial error regarding the accomplice instruction, which undeniably affected Cobb, he would be entitled, on that ground alone, to a new trial. Prejudicial errors concerning Williams, however, inevitably affected Cobb. This is particularly true in this case, where the key controversy surrounded Phyllis Santini’s credibility. Her testimony was central to the People’s case against both defendants. Any testimony which would have tended to undermine her credibility and the internal consistency of her narrative would have been equally beneficial to either party. Given this reality, errors relating most directly to Williams also unfairly prejudiced Cobb. The individual and cumulative impact of the errors requires both men be given a new trial.

In remanding for a new trial, we should also address alleged pretrial errors concerning the legality of Cobb’s arrest and thereby eliminate the necessity of further litigation on these issues. Arguing that Cobb’s constitutional rights were violated, the defendants contend that no probable cause existed for his arrest. It is urged that he was improperly arrested in his hotel room without a warrant, and that the police did not “knock and announce” before making a forcible entry.

On December 5, 1977, three weeks after the armed robbery and murders were committed, Perry Cobb was in his hotel room. The police knocked on his door and announced that they were police officers. They waited approximately 15 seconds for Cobb to open the door. During this time, they heard a muffled response which enabled them to determine he was present, but it was not followed by his answering the door. When they heard what sounded like bed-springs creaking, they broke into his room with guns drawn and arrested him.

When the officers broke into the room, Cobb was wearing a wristwatch which, it was later learned, belonged to one of the victims, Charles Guccion. After taking Cobb to the police station and giving him Miranda warnings, the police obtained a statement explaining his possession of Guccion’s watch. Cobb claimed that he had given his watch to a friend when he entered prison, but his friend had broken it. When he was released from prison, his friend had given him this watch as a replacement.

At trial, however, Cobb admitted that he lied concerning his possession of the watch, and stated he had received it from Johnny Brown on the day after Thanksgiving in 1977. According to Cobb’s testimony at trial, Brown approached him, said he needed a drug fix, and told him he would sell him the watch for $15. On review, Cobb contends that the watch and the false statements which he made at the time of his arrest, which were used to impeach him at trial, were the fruits of illegal police action and should have been suppressed.

During testimony on a motion to quash the arrest, Officer Paul J. Roppel, a homicide investigator, stated that Cobb was arrested based on information obtained from Phyllis Santini. Santini telephoned the police on the afternoon of December 5, 1977, and said she had information concerning the murders. An officer came to her house, picked her up, and took her to the police station at about 2 p.m. She told the police that she had driven the getaway car which Cobb and Williams used to commit the armed robbery and murders. She provided a description of the physical characteristics and clothing worn by the defendants, which coincided with the description provided by Arthur Shields. Moreover, her estimate of the time period during which the crimes occurred coincided with the estimated time which Shields provided to the police.

Additionally, as previously discussed, Santini told the police of admissions which Cobb made before and after the crimes which established a motive and corroborated what the police knew concerning the limited financial success of the armed robbery. Prom police records, the police were also aware of Cobb’s violent reputation and previous conviction for aggravated battery. Based on the totality of these circumstances, immediately after the interview the police, without an arrest warrant, went to the hotel room where Santini told them Cobb could be found. The arrest

occurred at about 11:30 p.m. on December 5,1977.

When exigent circumstances exist, the police may make a warrantless, in-home arrest without violating the fourth amendment. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159.) No clear-cut set of legal rules exists to determine the presence of exigent circumstances. This court has held that the guiding principle is reasonableness under constitutional provisions governing searches and seizures. People v. Abney (1980), 81 Ill. 2d 159,173.

In making a retroactive determination of whether the police acted reasonably, this court must determine the propriety of police conduct according to the “circumstances as known to the officials at the time they acted.” (People v. Abney (1980), 81 Ill. 2d 159, 173.) If, for example, a felon has committed a serious and violent offense, the police are more likely to be justified in immediately apprehending him. (Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, 392.) If the suspect is reasonably likely to be armed or has a violent disposition, these facts will also militate against the necessity of complying with the warrant requirement and will serve to justify a prompt in-home arrest. People v. Abney (1980), 81 Ill. 2d 159, 173.

While recognizing that these factors must only be satisfied on balance and may not be present in every case (People v. Thompson (1981), 93 Ill. App. 3d 995, 1005; People v. Sakalas (1980), 85 Ill. App. 3d 59, 65), the courts have also considered other factors in determining the propriety of a warrantless arrest: the immediacy of the arrest after the crime or the acquisition of information establishing probable cause, a clear showing of probable cause, a strong reason to believe that the suspect is on the premises being entered, the likelihood he will escape if not swiftly apprehended, and the peaceful circumstances of the entry. Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, 392-93; People v. Abney (1980), 81 Ill. 2d 159, 173.

We find that the events culminating in Cobb’s arrest justified the police in making a warrantless, in-home arrest. Although Phyllis Santini’s possible criminal involvement in the case indicates that she might be an unreliable informant, the police had substantial, corroborating evidence indicating that Cobb was involved in the crimes. The information provided by Santini was corroborated not only by the age, height, complexion, and clothing descriptions provided by Arthur Shields, but also by the time of day when Shields estimated he saw the suspects at Mel’s, which also coincided with the approximate time at which the coroner’s report established the murders occurred. The statements which Cobb made to Santini established a motive for his actions and corroborated other police knowledge concerning the financial failure of the armed robbery. This substantial, independent corroboration, coupled with her statements, established probable cause. Whether or not probable cause for an arrest exists depends upon the totality of the facts and circumstances known to the officers when the arrest was made. See People v. Clay (1973), 55 Ill. 2d 501, 504-05.

From the position of the victims, the location of the bullet wounds, and other physical evidence, the police were able to infer that the killers acted intentionally and with premeditation in committing these serious, violent crimes.

By virtue of its previous experiences with Cobb, the Chicago police department was aware that he had been charged with a previous homicide and convicted of an aggravated battery. In the aggravated battery, he had shot an acquaintance in the head at point-blank range when he walked into the room at defendant’s call. Moreover, Cobb committed the aggravated battery using the same caliber weapon that had been used in murdering Kanter and Guccion. The police had every reason to believe they were dealing with a violent individual who was more than likely armed and who was certainly dangerous and a hazard to public safety.

The defendants stress that since the arrest occurred three weeks after the armed robberies and murders, the police were not in “hot pursuit” and should have obtained a warrant. Exigent circumstances may arise, however, not only immediately after the perpetration of the crime, but also when additional facts justify immediate action. (See, e.g., People v. Robinson (1980), 91 Ill. App. 3d 1138; People v. Haynes (1980), 89 Ill. App. 3d 231; In re Willis (1980), 89 Ill. App. 3d 347.) In Robinson the court held that the police received sufficient, reliable information to establish probable cause and justify an immediate arrest even though the information was received two months after the crimes occurred. In our case, while the arrest of Cobb occurred three weeks after the crimes, it was within minutes of receipt by the police of. new material information establishing probable cause to believe Cobb committed the offense. The police were also now aware that Cobb lived within a few blocks of the police station. After the police officer had picked up Phyllis Santini at her home, the possibility existed that Cobb would be alerted to the fact that Santini was being interrogated. (See People v. Henderson (1981), 96 Ill. App. 3d 232, 237.) He would then have an incentive either to flee or seek to prevent his peaceful arrest. We conclude that the police were not required to wait for him to escape by the delay involved in seeking a warrant. They therefore properly acted immediately on Santini’s information. See People v. Barbee (1966), 35 Ill. 2d 407, 411.

While the entry was forcible, the police demonstrated a clear attempt to comply with the “knock and announce” rule and the policies buttressing it. No statutory or constitutional authority requires an officer to announce his authority and purpose prior to entering a dwelling to make an arrest. (People v. Wolgemuth (1977), 69 Ill. 2d 154, 162.) However, we acknowledged in Wolgemuth that the rule serves important functions and is one factor to consider in deciding whether a subsequent entry to arrest is constitutionally reasonable. “The function of the requirement to announce authority and purpose is to notify the person inside of the presence of police and to afford the person an opportunity to respond, so that violence can be averted and privacy protected.” People v. Wolgemuth (1977), 69 Ill. 2d 154, 166.

In this case Cobb was made aware of the presence of the officers by their knocking on his door and announcing they were police officers. We conclude that the 15 seconds the officers waited after hearing sounds within the room was a sufficient time for Cobb to either answer the door of an apartment, or at least give some indication he intended to do so. The totality of circumstances in this case demonstrates the reasonableness of the arrest and indicates that, on balance, the requirements of Abney have been satisfied.

Because of the aforementioned trial errors, however, the convictions and sentences are reversed and the cause remanded to the circuit court of Cook County for a new trial.

Reversed and remanded.