text:
    (No. 33939.
    Edwin S. Petterson et al., Appellees, vs. The City of Naperville, Appellant.

      Opinion filed September 25, 1956.

      William R. Friedrich, of Naperville, and Frank M. OpEka, of Chicago, for appellant.
    LerEn & Bureic, of Wheaton, (Alexander J. Burek, of counsel,) for appellees.
   Mr. Justice Davis

delivered the opinion of the court:

The city of Naperville, defendant, appeals from the judgment and decree of the circuit court of Du Page County finding and declaring that its “Subdivision Control Ordinance,” enacted June 21, 1954, is arbitrary, discriminatory, Unreasonable and void, and restraining and enjoining it from enforcing the provisions of the ordinance against the plaintiffs, Edwin S. Petterson and Dorothy Petterson. The trial court has certified that the validity of a municipal ordinance is involved and that the public interest requires direct appeal.

Count 1, of plaintiffs’ complaint for a declaratory judgment, alleged that plaintiffs are the owners of a certain tract of land located in the unincorporated area of Du Page County and adjoining the corporate limits of the city of Naperville; that the county of Du Page had by resolution adopted rules and regulations concerning plats of subdivisions, dedications and vacations as shown in the exhibit attached to the complaint; that plaintiffs platted their property for subdivision purposes and submitted the plat, together with its statements of improvements, to the county board of Du Page County which approved the plat; that the city of Naperville had, pursuant to the provisions of article 53 of the Revised Cities and Villages Act of the State of Illinois (Ill. Rev. Stat. 1945, chap. 24, pars. 53 — 1, 53 — 2) 53 — 30 passed ordinance number A-183 on March 3, 1947, which was entitled “Creating a Plan Commission” and had also passed, pursuant to the same statutory authority, ordinance number A-241 entitled, “Subdivision Control Ordinance” on June 21, 1954; that the provisions of ordinance A-241 made no distinction between properties located within the corporate limits and those in areas within one and one-half miles outside said limits; that said subdivision control ordinance required additional improvements and made requirements different from those of the county of Du Page; that said ordinance was void as being beyond the power and jurisdiction of the city of Naperville; and prayed that the court so find and declare. In count 2 of their complaint, which seeks injunctive relief, plaintiffs realleged the facts concerning the passage of the ordinances and the submission of their plat to the county authorities and further stated that they submitted their plat to the plan commission of the city of Naperville; that the commission had approved the plat, except that it had required the installation of curbs and gutters along the proposed streets of the subdivision; that this requirement was unnecessary under the circumstances and created an unreasonable burden upon the plaintiffs at a great cost to them and without any relationship to the public health, safety, morals, comfort and general welfare; and that the ordinance constitutes an arbitrary discrimination against the plaintiffs and was void as applied to their property.

In answer to count 1 of the complaint, the defendant denied the allegations thereof, except those pertaining to the ownership of the property, the existing statutory provisions, and the passage of the ordinances. The answer to count 2 admitted the passage of the ordinances, that proceedings were held before the plan commission and its refusal to give final approval to the plat because of the lack of provision for curbs and gutters, and denied all other allegations.

The special master, to whom the cause was referred to take proofs and report findings, found that the proof failed to show any distinction between the plaintiffs’ property and other property controlled by the ordinance, and that the ordinance was reasonable as applied thereto. However, the master recommended that the relief sought by the plaintiffs be granted on the grounds that the ordinance in question constituted an unlawful delegation of legislative authority; that the necessary standards to be followed by the plan commission were not specifically set forth in the ordinance which permitted arbitrary action by the commission, not subject to review by the legislative authority, and that requiring a property owner outside the city limits to install local improvements constituted an illegal discrimination. Both parties to the proceedings filed objections to the master’s report, which were denied and allowed to stand as exceptions. The court overruled the defendant’s exceptions to the report, and sustained the exceptions of the plaintiffs to the finding that the ordinance was reasonable. By its decree the court declared the ordinance unreasonable and unconstitutional and enjoined the defendant from enforcing any of its provisions as to plaintiffs, and directed the city of Naperville to approve the plat.

The facts of this case are not in dispute. The city of Naperville is situated in Du Page County, approximately twenty miles west of the corporate limits of the city of Chicago, a city of more than 500,000 population. On March 3, 1947, it adopted ordinance number A-183 creating a plan commission pursuant tO' authority granted by the City Planning Commission Act passed in 1921. (Laws of 1921, p. 260; Ill. Rev. Stat. 1945, chap. 24, pars. 53 — 1, 53 — 2, 53 — 3.) This ordinance provided that the commission shall have the power to prepare and recommend to the city council a comprehensive plan of public improvements looking to the present and future development and growth of the city, including reasonable requirements with reference to streets, alleys and public grounds within the corporate limits and within contiguous territory outside of and distant not more than one and one-half miles from such limits. On June 21, 1954, the city adopted ordinance number A-241, entitled, “Subdivision Control Ordinance,” as part of the official plan of the city. This ordinance contained provisions and regulations governing the subdividing and platting of lands lying within the corporate limits and one and one-half miles beyond, including requirements as to location of streets, their width, surface, and curb and gutter. The ordinance recited that it was adopted for the purpose of the present and future development of the city and for the promotion of the public health, safety, comfort, morals and welfare of persons living within the territory governed.

The plaintiffs, husband and wife, are the owners of a 20-acre tract of land, of which the north line and portions of the south and east lines adjoin the corporate limits of the city. They caused a plat of the proposed subdivision of their land to be prepared, and submitted it, together with topographical and other information, to the county board of Du Page County for approval. The committee of the county board approved the plat. Plaintiffs then submitted their plat to the city council of the city of Naperville, which referred the plat to its plan commission for consideration. The plat, as submitted to the municipal authorities, complied with Du Page County regulations and included bituminous streets, 20 feet in width, without curbs and gutters, and contemplated open ditch drainage facilities. The city plan commission refused to approve the plat unless one of the proposed streets was extended to the west line of the subdivision to provide for possible future extension of the way beyond the proposed subdivision, and unless the width of the bituminous streets was increased to 25 feet, and curb and gutter and suitable storm water drainage facilities were provided. The plaintiffs agreed to the extension of the street in question and to increase the width of the bituminous streets to 25 feet, but refused to comply with the curb and gutter and storm water drainage requirements. The plan commission then refused to approve the tentative plat.

At the hearing before the master the plaintiffs presented testimony to show that the cost of constructing the improvements to meet the city requirements would be considerably greater than the cost of providing open gutters and driveway culverts. The chief engineer of the Du Page County highway department testified that if curbs and gutters were installed, an underground system of drainage in the form of storm sewers would also be necessary, involving a total cost of $19,810; that the culverts necessary under the county requirements would cost only about $880. The engineer, who prepared the plat for plaintiffs, testified that the contour line indicated that surface drainage would flow westward to the Du Page River and away from the city of Naperville. The plaintiffs also offered testimony tending to show that streets outside the city are maintained by the township highway commissioner and not by the city, and that the highway commissioner lacked equipment to maintain the drainage system contemplated by the city. However, on cross-examination, one of plaintiffs’ engineer witnesses admitted that under normal conditions the cost of maintaining the storm sewers would be less than the cost of maintaining the open ditches and would require less maintenance service by the township.

One of the defendant’s witnesses, a sanitary engineer employed by the State Department of Public Health, testified that surface water drainage in cities, or in areas adjacent thereto, has a direct relation to public health; that there tends to be an increased concentration of waters in built up areas; that in areas where septic tanks are used such tanks do not function properly if the ground becomes saturated with surface waters, and that there is a real hazard to health in the admixture of sewage and surface water. On cross-examination he stated that he considered the county requirements a compromise with adequacy and that surface water drainage within one and one-half miles of a city has a direct bearing on health. The defendant also produced a witness, whose occupation was the construction of roads, who testified that the cost of maintaining roads with curbs and gutters is negligible compared with the expense of maintaining those with open ditches.

The principal questions here presented are: (1) Does the subdivision control ordinance of the city of Naperville exceed the power and authority conferred by the statute? (2) Assuming authority to enact that ordinance, is the ordinance as written constitutional, especially as applied to plaintiffs and their property ? In discussing these questions we must keep in mind that only the validity of the subdivision control ordinance is questioned here.

The answer to the first question involves the construction of the applicable statute which in turn depends upon ascertaining the legislative intent and giving it proper effect. In 1921 the General Assembly passed an act entitled, “An Act in relation to plan commissions in cities, villages and incorporated towns.” (Laws of 1921, p. 260.) Section 1 of the statute specified that every municipality may provide for the creation of a plan commission and prescribed the manner of its formation. Section 2 defined the powers of the plan commission authorized by section 1, and in subsection (1) provided that the commission has the power to prepare and recommend to the corporate authorities a comprehensive plan of public improvements looking to the present and future development of the municipality, such plan to be known as the official plan of the municipality, including “reasonable requirements in reference to streets, alleys and public grounds in unsubdivided lands within the corporate limits and in contiguous territory outside of and distant not more than one and one-half miles from such limits, and not included in any city, village or incorporated town, such requirements to be effective whenever such lands shall be subdivided after the adoption of such plan.” Subsections (2), (3) and (4) of section 2 provided for the recommendation of specific improvements in pursuance of the plan, the giving of aid to the municipal officials charged with the direction of projects for improvements embraced within the plan and the exercise of such other powers, germane to the granted powers as might be conferred by the corporate authorities. Section 3 provided: “No map or plat of any subdivision presented for record, affecting land (1) within the corporate limits of any municipality which has adopted heretofore or shall adopt hereafter an official plan in the manner prescribed in this article, or (2) within contiguous territory which is not more than one and one-half miles beyond the corporate limits of an adopting municipality, and not included in any municipality, shall be entitled to record or shall be valid unless the subdivision shown thereon provides for streets, alleys, and public grounds in conformity with the applicable requirements of the official plan.” The act as originally passed was not amended until 1949 when subsections (2), (3) and (4) of section 2 were renumbered and became subsections (3), (4) and (5) and a new paragraph was added as subsection (2) which applies to municipalities of more than 500,000 inhabitants or municipalities lying wholly or partly within a radius of 30 miles from the corporate limits of municipalities of more than 500,000 inhabitants. No further changes were made in the law up to and including the time of the passage of the disputed ordinance.

The same session of the legislature which amended the City Plan Commission Act amended the Plat Act by adding to section 2, immediately after the first sentence thereof, the following: “Said plat shall be submitted to the city council of the city or board of trustees of the village or town or to the officer designated by them, for their or his approval, if the land subdivided is located within the corporate limits of any such city, village or town or within contiguous territory which is affected by an official plan or part thereof, of any city, village or town. If the land subdivided is located outside the corporate limits of any city, village or town and is not affected by such official plan, or part thereof, the plat shall be submitted to the county board of the county in which the land is located for its approval.” (Ill. Rev. Stat. 1949, chap. 109, par. 2.) Prior to 1945, section 13 of the Recorders Act (Ill. Rev. Stat. 1943, chap. 115, par. 13,) had provided that it was unlawful for any recorder to record any map, plat or subdivision of any land situated in an incorporated city until the same had been approved by the legislative authority of the municipality. In 1945, section 13 was amended to provide that recording was prohibited unless the plat was properly approved where the land was situated within the corporate limits, or within one and one-half miles of the corporate limits of any municipality which had adopted a city plan and is exercising the special powers authorized by sections 53 — 1 to 53 — 3, inclusive, of the Revised Cities and Village Act. (Ill. Rev. Stat. 1945, chap. 115, par. 13.) These amendatory provisions remained in force at the time of the passage of the Naperville subdivision control ordinance.

In construing the provisions of a statute it is not only proper, but often necessary, to consider the provisions of other statutes relating to the same subject matter for the purpose of determining legislative intent. (Hepner v. County Board of School Trustees, 8 Ill.2d 235, at pages 241 and 242.) A consideration of the above statutes and their amendatory provisions reveals the clear intention of our legislature to grant to municipalities adopting an official plan exclusive control and jurisdiction over the subdivision of lands located not more than one and one-half miles beyond the corporate limits of the municipality. Cities ordinarily have no jurisdiction beyond their corporate limits, and municipal ordinances are confined in their application to the territory of the municipality adopting them. (Dean Milk Co. v. City of Elgin, 405 Ill. 204; City of Rockford v. Hey, 366 Ill. 526.) But the legislature may, if it sees fit, confer special extraterritorial powers on municipalities, and when it does so the courts recognize and give effect to them. (City of West Frankfort v. Fullop, 6 Ill.2d. 609; Chicago Packing and Provision Co. v. City of Chicago, 88 Ill. 221.) The exercise of such extraterritorial powers by a municipality is, of course, always subject to the requirement that the ordinance passed pursuant to legislative authority constitutes a valid exercise of the police power, and bears a reasonable and substantial relation to the public health, safety or general welfare. (City of Park Ridge v. American National Bank and Trust Co. 4 Ill.2d 144.) It is true that the legislature has given to counties certain powers relative to maps, plats and subdivisions. This power was first conferred in 1915 (Laws of 1915, p. 334-335,) and enlarged in 1949. (Ill. Rev. Stat. 1949, chap. 34, par. 25.09.) However, there is nothing in these legislative provisions relative to the powers of counties which indicates that it was not the intention of the legislature to give exclusive control in those areas within one and one-half miles outside the territorial limits of a municipality to municipalities which have an official plan in effect in such territory. Thus, even though the county of Du Page adopted a resolution regulating subdivisions in the county, the lands in question here, being within the limits prescribed by the City Plan Commission Act and the subdivision control ordinance, are subject to the exclusive control and jurisdiction of the city of Naperville so far as the subdivision of lands and the approval of maps and plats of such subdivisions are concerned.

Plaintiffs contend that the ordinance as drawn is void as an exercise of power by the defendant beyond the grant of the statute; that the statute by granting the right to include “reasonable requirements with reference to streets, alleys, and public grounds,” does not contemplate that a city may include such requirements as curbs and gutters or the other improvements prescribed by the ordinance. In this connection the plaintiffs rely on those cases which hold that the legislative powers of cities are strictly construed, and if there is any reasonable doubt as to the existence of the power, the doubt must be resolved against the municipality. But the primary object of statutory construction is to ascertain and give effect to legislative intent. In ascertaining legislative intent, the courts should consider the reason or necessity for the enactment and the meaning of the words, enlarged or restricted, according to their real intent. Likewise the court will always have regard to existing circumstances, contemporaneous conditions, and the object sought to be obtained by the statute. People ex rel. Holvey v. Kapp, 355 Ill. 596; Chicago Packing and Provision Co. v. City of Chicago, 88 Ill. 221.

Subsection 2 of section 2 of the City Plan Commission Act (Ill. Rev. Stat. 1953, chap. 24, par. 53 — 2(2),) in force at the time of the adoption of the subdivision control ordinance, grants to planning commissions in municipalities of more than 500,000 inhabitants, or in municipalities lying wholly or partly within a radius of thirty miles from the corporate limits of municipalities of more than 500,000 inhabitants, the power to recommend to the corporate authorities a plan or plans for the development and redevelopment of the municipality and contiguous unincorporated territory not more than one and one-half miles beyond the corporate limits of the municipality, and further empowers the commission “To provide for the health, safety, comfort and convenience of the inhabitants of the municipality and contiguous territory, such plan or plans may establish reasonable standards of design for subdivisions and for resubdivisions of unimproved land and of areas subject to redevelopment, including reasonable requirements for public streets, alleys, ways for public service facilities, parks, playgrounds, school grounds, and other public grounds.” We believe that the power to prescribe reasonable requirements for public streets in the interest of the health and safety of the inhabitants of the city and contiguous territory includes more than a mere designation of the location and width of streets as plaintiffs seem to contend. The legislature undoubtedly had in mind the complex problems connected with the development of territory contiguous to cities as bearing on the health and safety of all inhabitants within and without the municipality; that in such territory, in the interest of uniformity, continuity, and of public health and safety, the streets should be constructed in such a way as to afford reasonably safe passage to the traveling public and provide reasonable drainage in the interests of health. Plaintiffs made no objection to the paving requirements set forth in the ordinance and agreed to comply with those provisions, apparently considering them to be within the powers granted. Considering the expressed object and purpose of the legislation, it is our conclusion that the provisions of the ordinance requiring curbs and gutters and proper drainage are within the powers conferred by the statute.

The trial court found that the ordinance, as applied to plaintiffs and their property, was arbitrary, unreasonable and discriminatory and had no reasonable relation to the public health, safety or general welfare, and that it was therefore unconstitutional and void. The only proof offered to sustain this finding was evidence which compared the cost of complying with the county regulations and the cost of complying with the requirements of the subdivision control ordinance, together with some testimony that the surface waters drained westward to the river and not toward the city. The fact alone that the cost of curbs and gutters and the drainage facilities prescribed by the subdivision control ordinance would be greater than the cost of open ditches and culverts forms no basis for the finding that the ordinance is arbitrary, unreasonable or discriminatory. There is no proof whatever to show that the ordinance affects plaintiffs’ property any differently than other property within the area in question or that it imposes unreasonable or excessive burdens upon the plaintiffs. One who challenges the validity of an ordinance as arbitrary and unreasonable must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justified its adoption, or that it will not promote the safety and general welfare of the public. (First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213.) The fact alone that the ordinance may operate to impose burdens or restrictions on the property which would not have existed without the enactment of the ordinance is never determinative of the question of validity. (Miller Brothers Lumber Co. v. City of Chicago, 414 Ill. 162.) The privilege of the individual to use his property as he pleases is subject always to a legitimate" exercise of the police power under which new burdens may be imposed upon property and new restrictions placed upon its use when the public welfare demands. (2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill. 138.) Plaintiffs offered no convincing proof to support their contention that the ordinance bears no reasonable relation to the public health, safety or general welfare. Such proof as was adduced on this question was introduced by defendant and supports the opposite conclusion. The trial court erred in holding the ordinance unconstitutional on the ground that it was arbitrary, unreasonable and confiscatory and without proper relation to the legitimate objects of the police powers. - '

Plaintiffs also suggest that the ordinance is unconstitutional because section 4 thereof constitutes an unlawful delegation of legislative power by the city to the plan commission in that it gives the commission the power to grant a variance from the requirements of the ordinance which sets forth no standards or guides to aid the commission in determining whether or not a variance shall be permitted. We doubt that plaintiffs are in a position to urge this objection because there is no evidence that they requested a variance or sought to avail themselves of the provisions of section 4. (Cf. People v. McBride, 234 Ill. 146, 165, 166.) However, there is no merit in the contention. Section 4 provides that “where the subdivider can show that a provision of the Standards of Design or required Improvements as set forth in Section 3 would cause unnecessary hardship if strictly adhered to, and where, because of topographical or other conditions peculiar to the site or surrounding condition, and in the opinion of the Plan Commission a departure may be made without destroying the intent of such provisions, the Plan Commission may approve a variance. Any variance approved shall be stated in writing in the minutes of the Plan Commission with the reasoning set forth upon which the variance was considered justified.” Subsection H of section 5 of the ordinance provides that after approval of the final plat of subdivision by the plan commission, it shall submit the approved plat to the city council together with a letter of transmittal calling the attention of the council to all variances (if any) approved by the plan commission together with its reasons therefor. Subsection I of section 5 provides that “When and if the City Council is satisfied with the Final Plat and with all improvements, conditions and documents pertaining to the subdivision, the Council shall by Resolution approve said plat * * From these provisions it appears that the action of the plan commission in recommending a variance is advisory only and that the final determination is made by the proper legislative authority. Section 4, therefore, involves no unlawful delegation of legislative power.

Plaintiffs further urge that the subdivision control ordinance is unconstitutional because it amounts to either taxation without the consent of the taxpayers, or to an exercise of the power of eminent domain without providing compensation to the property owner for the property taken for public use; that if the statute is construed as providing for a form of taxation or special assessment for local improvements, it is void as violating the constitutional provision for uniformity of taxation; and that if the power exercised thereunder is a power of eminent domain, it violates the constitutional requirement that private property shall not be taken for public use without just compensation. This argument ignores the fact that this is not a proceeding initiated by the city for the construction of a local improvement, or to take property under the law of eminent domain. It is a lawsuit in which the plaintiffs seek approval of a proposed plat of a subdivision under an ordinance which exacts compliance with certain requirements as a condition precedent to approval. They cite in support of this contention the case of City of Chicago v. Larned, 34 Ill. 203, which involved an assessment for improvements made by the city council on the basis of the frontage of the lots upon the street to be improved. There the court held that under the provisions of the constitution of 1848, then in effect, all taxes were subject to the principles of equality and uniformity, and since this special assessment violated these constitutional provisions, it was not a tax, but an exercise of the power of eminent domain for which just compensation must be made; that though compensation could be made by benefits, when these were exhausted it then became a question of taxation, and the principles of equality and uniformity must apply; that the assessment of injuries and benefits is a judicial proceeding not to be made by a city council and that the purported assessment was void. Since the adoption of our present constitution, however, the power to levy and collect special assessments is regarded as a branch of the taxing power and the assessment is regarded as a species of taxation. (Chicago and Alton Railroad Co. v. City of Joliet, 153 Ill. 649, 654.) The case at bar does not involve the imposition of a tax by the municipal authorities, but rather involves the imposition of regulatory provisions by way of the exercise of the police power through an ordinance requiring certain conditions precedent to the subdivision of lands and the approval of plats thereof. The validity of the ordinance is to be tested, neither by the principle of uniformity of taxation nor by the law of eminent domain, but rather by the settled rules of law applicable to cases involving the exercise of police powers. The fact that the exercise of such powers imposes certain burdens, or prevents the most profitable use of the property in private hands, does not of itself render the legislation invalid as a taking of the property without just compensation. (City of West Frankfort v. Fullop, 6 Ill.2d 609.) The imposition of reasonable regulations as a condition precedent to the subdivision of lands and the recording of plats thereof is not a violation of the constitutional requirement of uniformity of taxation or tantamount to the taking of private property for public use without just compensation.

We find that the judgment of the circuit court of Du Page County was erroneous and it must be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Daily

license: Public Domain

text:
    (No. 33936.
    The People ex rel. Herbert C. Paschen, County Collector, Appellee, v. Hendrickson-Pontiac, Inc., Appellant.

      Opinion filed September 25, 1956.

      Adelbert Brown, of Chicago, for appellant.
    John GutknEcht, State’s Attorney, of Chicago, (Gordon B. Nash, Charles D. Snewind, and Edward E. Plusdrak, of counsel,) for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

Hendrickson-Pontiac, Inc., the appellant, filed objections in the county court of Cook County to the application of the county collector for judgment fixing the correct amount of 1949 real estate taxes paid under protest. This appeal is prosecuted from a judgment overruling such objections and denying appellant a refund of $3447.96.

The facts underlying the controversy show that the board of education of the city of Chicago holds the fee to- two lots located on Laramie Avenue between Madison and Monroe streets. The said land is an unsold part of section 16, commonly referred to- as school fund property, granted by the government of the United States to the State of Illinois for use of its inhabitants for schools, on the occasion of the latter’s admission to Statehood. By a lease executed June 12, 1946, the two lots, then vacant and unimproved, were leased for commercial purposes to appellant, a nonexempt Illinois business corporation engaged in the operation of an automobile agency, for a term of 49 years commencing January 1, 1947. By the terms o-f the lease appellant agreed to- pay a fixed annual rental of $5460 for the first ten years and thereafter an amount to be determined at ten-year intervals. In addition to the stipulated annual rental, appellant agreed to erect a commercial building costing not less than $100,000. Such a building was erected in 1949 and is used by appellant to conduct its automobile agency.

By paragraph 14 of the lease, which is captioned: “Surrender Premises Upon Termination,” it was agreed that “upon termination of the lease, by forfeiture, lapse of time or otherwise, the lessee will at once surrender and deliver up the above described premises, together with all improvements thereon, to said lessor, and that all buildings and all fixtures made a part of buildings and improvements thereunto- belonging, upon said demised premises are a part of the premises and the property of the lessor.” Other provisions of the lease pertinent to this proceeding are paragraphs 4 and 5. By the former, appellant, as lessee, agreed to pay all taxes and assessments “upon said demised premises or on any and all buildings and improvements thereon, or on the leasehold estate hereby created.” Paragraph 5, which authorizes appellant to “contest taxes,” reads in part: “It is understood that the land demised is School Fund Property, and as such is exempt at the present time from general and special assessment.”

The land so- leased was not assessed for the years 1947 and 1948, but was, rather, marked “exempt” in the collector’s warrant books. In 1949, after appellant had erected the commercial building, the collector continued to show the land as exempt and also determined, under a formula wherein the value of a leasehold equity in exempt land is based solely on the value of the land, that appellant’s leasehold equity had no taxable value. For the same year, however, the “improvements on the land” were assessed against appellant at $76,434 under the formula normally employed in the county, vis., reproduction cost less depreciation. Thereafter taxes were levied on the basis of such valuation and were extended in an amount totalling $3447.96. Appellant paid the full amount under protest and by its subsequent objections to the application of the collector, alleged, in substance, that it was entitled to a refund: (1) because the improvement assessed is owned by the board of education; (2) because the improvement is section 16 school fund property and thus not taxable regardless of the use to which it is put; and (3) because appellant owns only a leasehold in the improvement, which has no taxable value. The county court, after hearing evidence, found that appellant had an interest which amounted to a property right in the real estate in question and overruled the objections.

Appellant’s fundamental contention on this appeal is that the taxing officials were powerless to tax the improvement because it is exempt property. In support of such position it is first urged that although appellant erected and paid for the improvement, it was at all times the property of the board of education both under the terms of the lease and by operation of real property laws. Appellant reasons that its leasehold interest and the board’s fee in the improvement are separate properties and, by drawing an analogy to People ex rel. Harding v. City of Chicago, 335 Ill. 450, and People ex rel. Carr v. City of Chicago, 323 Ill. 68, where it was held that privately owned land was not relieved of tax liability even though leased for long terms to exempt municipal corporations, asserts that the board-owned improvement is not subject to- taxation. Even if it were to be conceded that the board has a clear claim to the improvement prior to the termination of appellant’s lease, such a theory cannot be sustained either under the constitution or implementing statutes.

The subject of exemption from taxation is dealt with in section 3 of article IX of the constitution of 1870 which provides in part as follows: "The property of the state, counties, and other municipal corporations, both real and personal,' and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general law.” In People ex rel. Gill v. Trustees of Schools, 364 Ill. 131, wherein it is stated that the framers of the constitution intended a strict construction of the provision to the end that all property should bear its just portion of taxation, this court held that although the property contemplated by the constitution must be owned by institutions, associations or corporations falling within the exempted classes named, ownership is not the sole test and that, to be exempt, such property must also be used exclusively for the purposes defined in the second clause of the section.

The constitutional provision is not self-executing but merely grants to the legislature, acting within the constitutional limitations imposed, the authority to- enact legislation to exempt property from taxation. (People ex rel. Olmsted v. University of Illinois, 328 Ill. 377; Glen Oak Cemetery Co. v. Board of Appeals, 358 Ill. 48.) Pursuant to such authority the legislature has enacted section 14 — 11 of the School Code, (Ill. Rev. Stat. 1947, chap. 122, par. 14 — 11,) which exempts school real estate from taxation in the following terms: “All lands donated by the United States for school purposes, not sold or leased; all property of schools, including the real estate on which the schools are located and any other real estate used by such schools exclusively for school purposes, not leased by such schools or otherwise used with a view to profit; and all lands, moneys or other property heretofore or hereafter donated, granted, received or used for public school, college, seminary, university, or other public educational purposes, and the proceeds thereof, whether held in trust or absolutely shall be exempt from taxation.” See also paragraphs (1) and (2) of section 19 of the Revenue Act of 1939, as amended. Ill. Rev. Stat. 1947, chap. 120, par. 500.

Admittedly the school property involved in this proceeding has been leased and is being used for other than exclusive school purposes. Thus whether measured by the constitutional provision or the implementing statute, the mere fact that the property is owned by the board of education is insufficient to support a claim of exemption. Cf. People v. International Salt Co. of Illinois, 233 Ill. 223.

Without attempting to make any distinction between the land, the leasehold interest or the improvements, appellant next contends that the property here involved is immune from taxation, regardless of its use, by reason of the fact that the land is located in section 16 granted by the government of the United States to the State of Illinois for the use of its inhabitants for schools. To tax such property, appellant argues, violates section 2 of article VIII of the constitution of 1870, and impairs the contractual obligations of the State to the Federal government created by the enabling act of Congress which offered section 16 land “for use of schools,” (3 U.S. Stat. at Large, 428,) and the Ordinance of Illinois, enacted August 26, 1818, (Laws of 1819, App. p. 21,) which accepted the land for such use.

With regard to the latter point of argument it need only be pointed out that the exemption of section 16 land from taxation is not based upon any language contained in the original grant or acceptance. Neither is it founded upon any language of the constitution or our statutes relieving such property from taxation. It is, rather, based upon the ground that section 2 of article VIII of our present constitution prevents the depletion of the fund, resulting from such grant, by taxation or special assessment. (See: City of Chicago v. People ex rel. Miller, 80 Ill. 384; People ex rel. Hanberg v. City of Chicago, 216 Ill. 537; City of Chicago v. University of Chicago, 302 Ill. 455.) Accordingly, this court has held that section 16 land, so long as it remains a part of the school fund, is exempt from taxation and special assessment, and has ruled that the exemption extends to property exchanged for the school section or representing its proceeds. (City of Chicago v. People ex rel. Miller, 80 Ill. 384; People ex rel. Little v. Trustees of Schools, 118 Ill. 52; People ex rel. Hanberg v. City of Chicago, 216 Ill. 537.) The construction which has been placed upon section 2 of article VIII to reach such a result is expressed in the Miller case, (p. 386,) as follows: “This provision includes the lands and money embraced in the common school fund, also the college, seminary and university lands and funds in the hands of or under the control of the State. This constitutional provision amply provides for the preservation of, and clearly prohibits the perversion of, the fund to other purposes. Under it, the legislature has no- constitutional power to appropriate any portion of this fund to defray the expenses of the State, counties or other municipal bodies, than those created for public school purposes; and the General Assembly is, as we have seen, prohibited from directly appropriating this fund to State, county, or municipal purposes, or any portion of it, and they can not accomplish the same end by indirect means. If they can not SO' appropriate it directly, they can not by the indirect means of taxation; because, so much as would be taken from the fund by taxation would be an unconstitutional perversion of the fund to that extent.”

In City of Chicago v. University of Chicago, 302 Ill. 455, this court held, however, that section 2 of article VIII does not prevent the assessment of section 16 land, for benefits, to the extent of the value of a leasehold to which the land is subject, and the improvements placed thereon by the lessee. The section 16 land in that case had been granted by the State to the city of Chicago for school use, and had been leased and improved by the University of Chicago. Upon objection of the latter to the confirmation of a special assessment against the property, the county court held the land was exempt, but refused to hold that the leasehold estate and the improvements on the land were also exempt. In affirming the lower court and in holding the assessment would not deplete school fund property in violation of section 2 of article VIII, this court said (p. 457) : “In this case there was no attempt to assess the fee or reversion but the court held it to be exempt, and the leaseholds and improvements are not school lands or proceeds of school lands. The leaseholds are the property of the lessees, and the improvements have been created, paid for and are for the benefit of the lessees, to enable .them to enjoy the leasehold estates. The leases created no charge against the lands on account of taxes or assessments, but the lessees covenanted to pay all water rates and all taxes, duties and assessments, general or special, levied or assessed upon the premises during the continuance of the leases.”

The quoted language, we find, is decisive of the issue now before us. Here there was likewise no attempt to assess, the land but only the leasehold therein and the improvement thereon. While the leasehold equity in the land was found to have no taxable value, the improvement was erected and paid for by appellant for the sole purpose of enabling it to enjoy its leasehold estate. Appellant argues that the University of Chicago case is distinguishable and inapplicable in that the lessee in that case, rather than the lessor, was the owner of the improvements assessed. Such an argument overlooks the fact that the exemption of section 16 land from taxation is bottomed solely upon the constitutional prohibition against depleting school funds and not upon use or ownership.

Appellant also suggests that since the lease in question is a ten-year revaluation lease, taxes levied against the leasehold and the improvements it enjoys would decrease the value of the lease and result in a reduction of the return realized by the board of education. The answer to such an argument is found in the lease itself, for it provides that the revaluation from which future rentals will be determined shall be based upon “the appraisal value of land herein demised (exclusive of improvements thereon * * *).”

Section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1947, chap. 120, par. 507,) provides: “When real estate which is exempt from taxation is leased to another whose property is not exempt, and the leasing of which does not malee the real estate taxable, the leasehold estate and the appurtenances shall be listed as the property of the lessee thereof, or his assignee, as real estate.” In view of this language and in light of the construction which has been placed upon the constitutional provisions involved, we conclude that the taxing officials had authority to levy the tax objected to in the manner they did, and that such tax did not result in an unconstitutional perversion of school funds or grants.

By its final contention appellant claims that it had only a leasehold interest in the improvement, and that the taxes paid under protest should be refunded by reason of the fact such leasehold interest had no taxable value. It is sufficient to point out that this objection to the tax goes only to the amount of the assessment and affords appellant no basis for a claim of exemption. An opportunity for reviewing the correctness of an assessment of property is provided by the Revenue Act. (Ill. Rev. Stat. 1947, chap. 120, pars. 594, 598.) As a consequence it has long been held that a taxpayer cannot defend an action for collection of a delinquent tax, on the ground of irregularities in assessment or revaluation, without having first exhausted his statutory remedies to seek revision of the assessment. See: People v. Spurgeon Mercantile Co. 352 Ill. 620; People v. J. B. Inderrieden Co. 375 Ill. 458; Goodyear Tire and Rubber Co. v. Tierney, 411 Ill. 421.

The judgment of the county court of Cook County is affirmed.

T . , Judgment affirmed.


author: Mr. Justice Hershey

text:
    (No. 33909.
    C. O. Baptista Films, Appellant, vs. Roy F. Cummins, Director of Labor, Appellee.

      Opinion filed September 25, 1956.

      Fischer, Bosgrae and Mackenzie, of Chicago, (Leonard Bosgrae, and Kellam Foster, of counsel,) for appellant.
    Latham CastlE, Attorney General, of Springfield, (William C. Wines, Raymond S. Sarnow, and A. Zola Groves, of counsel,) for appellee.
   Mr. Justice Hershey

delivered the opinion of the court:

This case is here on direct appeal to review a decision of the circuit court of Cook County, which, in an administrative review proceeding, held the plaintiff corporation, C. O. Baptista Films, was not a corporation organized and operated exclusively for religious or educational purposes without private beneficial inurement, and hence not entitled to an exemption under section 221 of the Unemployment Compensation Act. Ill. Rev. Stat. 1953, chap. 48, par. 331.

The plaintiff claims (1) it was such a corporation, (2) a prior adjudication of nontaxability involving a predecessor corporation is res judicata, (3) another prior adjudication denying benefits under the act to employees of the present corporation is also res judicata, (4) the defendant is estopped by a prior withdrawal of assessments, and (5) claims for the tax year 1948 are barred by limitations.

The defendant contends (1) the plaintiff does not qualify for exemption under any of the three issues involved — organization, operation, or beneficial disposition of earnings, (2, 3) neither prior decision is res judicata, and (4,. 5) estoppel and limitations are not valid defenses here.

The assessments, covering the years 1948 through 1952 and the first three quarters of 1953, totaled $10,688.49, and, with interest and penalties, resulted in a judgment against the plaintiff for $16,732.75.

In 1943, Scriptures Visualized Institute was organized as an Illinois not-for-profit corporation “to teach the Bible” by means of sound and silent films and other audio-visual aids and literature. About January 1, 1946, pursuant to an agreement between Scriptures Visualized Institute, C. O. Baptista and another corporation termed C. O. Baptista Films, all assets of Scriptures Visualized Institute and all assets of C. O. Baptista used by it, were transferred to C. O'. Baptista Films, the plaintiff.

The new corporation’s purposes and powers were substantially the same as those of Scriptures Visualized Institute, except that it was also to buy, sell and deal in “inventions” for recording and reproducing sound films and to consolidate the two former entities.

For the assets which he transferred (amounting to $101,755), Baptista received $300 monthly rental, plus extensive powers of management and control. These included the power to censor, cancel and revise all materials, to supervise all production, to control all expenditures, to hire and fire employees, to fix salaries, and to control all sales and transfers of real and personal property. His salary was fixed at $75 per week. The incorporators were Baptista himself, the head artist, and the bookkeeper, who were all full-time employees, sole directors, and president, vice-president and secretary, respectively.

In 1948, the corporation began manufacturing and selling sound film projectors and marketed them' and other items in competition with commercial producers and dealers. These items included tape recorders, microphones, motion picture screens, projection lamps, projection lenses, projector stands, amplifiers, tubes, duplicating films, extension cords, reels and cans. Its total income has been roughly as follows: from sales of equipment, 30 per cent; from sales of films, 25 per cent; from film rentals, 30 per cent; from other sources, 15 per cent. After the transfers in 1946, the corporation had net assets of $125,000, but by 1952 it net assets had increased to $540,000.

The plaintiff’s materials are religious in nature, being related to Biblical stories and teachings, and its catalog recites aims and purposes of a strictly religious character. However, no director or officer is a minister of any religious group; and despite declarations of noncommercial purpose, the corporation’s sales, rental and credit policies quite closely resemble those of an efficient commercial business, and many of its sales and distributions are in competition with commercial dealers.

There is nothing in the plaintiff’s charter or by-laws which impresses its assets with a trust, or which requires that on dissolution distribution be made to an exclusively religious or educational organization. C. O. Baptista personally has unlimited authority over all sales and transfers of real and personal property of every description.

On these facts, we are governed by Scripture Press Foundation v. Annunzio, 414 Ill. 339, decided in 1953, in which the taxability of such an institution was considered at length. While the religious character of the materials handled is some evidence of religious operation, their marketing exclusively or chiefly to intermediaries such' as church organizations or ministers does not permit of an exemption for a claimant which itself has no- direct contact with any congregation, communicant or other ultimate religious recipient. Similarly, control of the claimant by private persons rather than by an ordained minister or a religious body is evidence of nonreligious organizational structure. Finally, efficient businesslike operations, with aggressive advertising and pricing competitive with commercial rivals (as in the case of the equipment here), all based on a sound capital structure and resulting in profits not committed to any religious shareholder or beneficiary, are substantial evidence of nonreligious operation.

In view of Baptista’s complete control, we are unimpressed by a distinction based on small salaries here and large salaries in the Scripture Press case.

The plaintiff corporation rents films and equipment to religious groups, but does not itself minister to anyone in the ordinary sense; hence, in this respect it is in much the same position as “any other commercial service organization furnishing to a religious institution necessary servives such as fuel, lights, building material or any other item necessary to its ordinary and customary functioning.” (Scripture Press Foundation v. Annunzio , 414 Ill. 339, 356.) In addition, the plaintiff markets its commodities at a substantial profit in a businesslike operation; and while its legal structure is nonprofit, it is, in fact, controlled by one private person who may dispose of earnings and accumulations as he sees fit.

Therefore, we conclude that the plaintiff failed to establish a right to an exemption as being organized and operated exclusively for religious purposes. Nor is there any evidence in this record indicating that it is organized and operated exclusively for educational purposes. Cf. People ex rel. Brenza v. Turnverein Lincoln, 8 Ill.2d 198.

Next, neither prior adjudication relied on by the plaintiff is res judicata here. In Scriptures Visualized Institute v. Director of Labor, decided in 1946 by the circuit court of Cook County, the institute was held tax exempt for the years 1942 and 1943. But the present corporation, although a successor to the institute, is also a successor to Baptista’s sole proprietorship, acquiring 90 per cent of its assets from him. There is no prior adjudication as to him, so the parties are not the same. In addition, the subject matter has been materially altered by the fact that the operations here are far more commercial in character.

Even if it were considered that the parties and subject matter are the same, with a collateral estoppel against a different decision for a different year’s tax, this court’s .decision in the Scripture Press case intervened to bar any such vested interest in the prior decision. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591; Burrows Co. v. Hollingsworth, 415 Ill. 202.

The same reasoning disposes of plaintiff’s argument that a holding of taxability is precluded by the Department referee’s decision against benefits to the plaintiff’s employees and by the finding and necessary premise there that the plaintiff was exempt as a religious corporation.

The claim that the Director is estopped by a withdrawal of assessments for 1948, 1949 and 1950, is likewise untenable. The Director’s letter withdrawing the assessments for those years followed the only decided case involving a religious purpose under the act concerned, namely, the circuit court decision involving Scriptures Visualized Institute. However, in the Scripture Press case this court gave a definitive interpretation which was directly opposed to the circuit court decision, and the Director reinstated the assessments so as to conform to the declared law. “(I)t is fundamental that an erroneous construction of a statute by an administrative agency is not binding upon the courts,” (Winakor v. Annunzio, 409 Ill. 236, 248,) particularly where it is not based on “high judicial authority.” Cf. Pressed Steel Car Co. v. Lyons, 7 Ill.2d 95, 106.

The plaintiff’s asserted limitations defense to the 1948 assessments falls because of the corporation’s failure to file a report with the Director setting forth its employment experience for that year. (Ill. Rev. Stat. 1953, chap. 48, par. 687.) But since it was considered exempt at the time, the plaintiff argues that it had no duty to file the report in order to start the running of the five-year limitations statute. As noted, however, an erroneous administrative position is no fetter to the State or the courts on the facts of this case, (Winakor v. Annunzio, 409 Ill. 236; Superior Coal Co. v. Department of Revenue, 4 Ill.2d 459,) and likewise is no shield to' the taxpayer, since estoppel cannot be used to revive against the State a defense otherwise unavailable. See People ex rel. Ames v. Marx, 370 Ill. 264; Massell v. Daley, 404 Ill. 479.

Accordingly, the judgment is affirmed as to all the tax assessed, and as to interest and penalties due from June 24, 1953, when on the basis of the Scripture Press case the plaintiff was notified to file reports and pay tax- contributions. For the period prior to that date, however, we do not think it just to allow, in addition to the tax, interest and penalties as well. (Cf. Burrows Co. v. Hollingsworth, 415 Ill. 202, 214.) While an administrative error of this type should not be a shield for the taxpayer, neither should it provide a windfall for the State. Therefore, the judgment is reversed as to interest and penalties prior to that date.

The judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded with directions to enter judgment in accord with this opinion.

Alfirmed in part and reversed in part and remanded, with directions.


author: Mr. Justice Bristow

text:
    (No. 33946.
    Sangamon County Fair and Agricultural Association et al., Appellants, vs. Stillman J. Stanard, Director of the Department of Agriculture, et al., Appellees.

      Opinion filed September 25, 1956.

      Hershey, J., took no part.

      James S. Craven, and Aeeen T. Lucas, both of Springfield, for appellants; George P. CouTrakon, and Thomas W. HoopEs, both of Springfield, for separate appellant.
    Latham CasteE, Attorney General, of Springfield, (John L. Davidson, Jr., and LuciEn S. FiEED, of counsel,) for appellees.
    Weymouth Kirkeand, Thomas M. Thomas, and Thomas F. Scueey, all of Chicago, for Metropolitan Fair and Exposition Authority, amicus curiae.

   Mr. Justice Bristow

delivered the opinion of the court:

Certain plaintiffs-appellants appeal directly to this court from a decree of the circuit court of Sangamon County granting defendants’ motion to strike and dismiss the plaintiffs’ second amended complaint to enjoin disbursements from the Fair and Exposition Fund on the ground that the 1955 amendment to the State Finance Act is unconstitutional. Ill. Rev. Stat. 1955, chap. 127, par. 142É

Since the constitutionality and validity of a State statute and the public revenue are directly involved the appeal properly comes direct to this court.

Section 6i of the State Finance Act (Ill. Rev. Stat. 1955, chap. 127, par. 142Í) was extensively amended by House Bill No. 734 of the 69th General Assembly, being a bill entitled “An Act to amend Section 6i of ‘An Act in relation to State finance,’ approved June 10, 1919, as amended.” (Laws of 1955, p. 1338.) In substance section 6i as thus amended sets up the Fair and Exposition Fund, provides for its administration by the Department of Agriculture, authorizes distribution from the fund to county fairs in counties with a population of less than 500,000 and to fair and exposition authorities in counties with a population of 500,000 or more. Funds distributed pursuant to this section may be expended for financing industrial, cultural, educational, trade and scientific exhibits and for construction and equipping of auditoriums and buildings for such purposes. The 1955 amendment added authority to use distributed funds for payment of the principal and interest upon revenue bonds issued for any of the foregoing purposes and deleted the provision permitting use of the funds for agricultural premiums. The amendatory act also provided that a participant, to be eligible to receive appropriations under the statute, must hold the land on which the fair or exposition is to be conducted as a fee or under a lease of at least 40 years duration and that upon receiving a distribution from the fund the treasurer of the participant should file with the Director of the Department of Agriculture a penal bond equalling the sum distributed and conditioned upon the lawful expenditure of the money distributed. The amendatory act also provided that before any money is distributed to any participant under said section the participant shall file with the said Director a schedule showing the purpose for which the State funds are to be spent and also an accounting of such funds at the end of the calendar year following distribution. Failure to comply with any provision of such paragraph bars a participant from further distribution of money. The Department of Agriculture was further authorized to make and enforce such rules and regulations as it deems necessary to carry out and enforce the provisions of the act.

Suit was filed as a taxpayer class action for an injunction to enjoin disbursement of the public funds, alleging unconstitutionality of said amendatory act for the following reasons:

(1) It violates section 13 of article IV of the Illinois constitution in that the title of the amendatory act embraces more than one subject.

(2) It violates section 1 of article IV of the constitution in that (a) it delegates legislative powers to an administrative officer; (b) it confers administrative discretion upon an administrative officer without supplying any standards or definitions, and (c) it is so vague, indefinite and uncertain that the legislative intention cannot be ascertained.

(3) It violates section 13 of article IV of the constitution in that House Bill 734 was not read at large on three different days in the House of Representatives but was, in the third reading, read by title only and not at large.

The legislative history of said bill is alleged in detail in the complaint in substance as follows: Introduced on April 13, 1955, and referred to the House Executive Committee ; heard before the executive committee of the House on May 11, 1955, amended by committee and reported by committee to the House with recommendation “do pass” as amended; first reading on May 12, 1955, and advanced to order of second reading; called on order of second reading on May 18, 1955, amended, read the second time and advanced to order of third reading; called on order of third reading for passage on June 7, 1955, title of bill only read by chief cleric, demand by representative for reading at large and in full, refusal by Speaker to order reading in full and at large, called for vote on passage and passed; legislative protest signed by two representatives filed on or about June 8, 1955, protesting and dissenting from passage for failure to read in full; legislative protest signed by five representatives, filed on or about June 14, 1955, protesting and dissenting from passage of the bill for failure to read at large on the order of the third reading or at any time thereafter; bill reported to the Senate, passed thereby, and approved by the Governor on July 9, 1955.

Attached to the complaint as exhibit “A” and incorporated therein was page 20 of the House Journal of June 7, 1955, wherein it is specifically stated in reference to said House Bill as follows: “having been transcribed and typed and all amendments adopted thereto having been printed, was taken up and read at large a third time.”

The trial court in allowing the defendant’s motion and dismissing the complaint held that the amendatory act was valid and constitutional and not unconstitutional for any of the reasons assigned in the complaint.

George P. Coutrakon, separate plaintiff and appellant, by leave of court filed in the same proceeding his separate complaint challenging the constitutionality of the amendatory act as follows:

(1) It violates section 2 of article II of the constitution in basing distribution from the fund to participants upon population of the participant’s county.

(2) It violates section 2 of article II of the constitution in prohibiting use of the funds distributed for agricultural premiums under section 28 of the State Finance Act.

(3) It violates section 11 of article II of the constitution in penalizing failure to comply with provisions of the amendment with permanent exclusion from benefits of the fund.

Plaintiffs’ complaint objects that provisions of the amendatory act relating to issuance of revenue bonds are not embraced within the subject of the amendatory act as expressed in its title. In addition, plaintiffs argue that certain other provisions of the amendment are incongrous with the title, namely the provisions specifying (1) the manner in which land must be held, (2) that officers must file a penal bond, (3) the right of the Department of Agriculture to make rules and regulations, (4) that appropriations may be used for certain stated purposes and others as may be provided for, (5) the filing of schedules with the Department of Agriculture, and (6) that participants make an accounting to the Department of Agriculture. Plaintiffs’ brief does recognize that all of these last named provisions are conditions to the expenditure of public funds for the benefit of county fairs and fair and exposition authorities.

When the title of the act amended is set forth in the title of the amendatory act, as was here done, any provision which might have been inserted in the original act may be incorporated in the amendatory act. (Baim v. Fleck, 406 Ill. 193.) It is for the legislature to determine how broad and comprehensive or how specific the title of an act shall be. (People ex rel. Sanitary District v. Schlaeger, 391 Ill. 314; People ex rel. Gage v. Village of Wilmette, 375 Ill. 420.) The constitution is obeyed if all the provisions of the act relate to one subject indicated in the title and are parts of it, or incident to it, or reasonably connected with it, or in some reasonable sense auxiliary to the object in view. (People ex rel. Brenza v. Gebbie, 5 Ill.2d 565.) The title of an act need not contain all the details thereof nor be an index of its contents. Johnson v. Halpin, 413 Ill. 257.

The title of the act here in question is in reference to “State finance.” The word “State” obviously refers tO' the State of Illinois. Both parties agree that the meaning of “finance” in Webster’s New International Dictionary as “The science and practice of raising and expending public revenue” is the most accurate definition thereof, as do we.

The new provisions of the act relating to revenue bonds are limited to the purposes previously set forth in the act of financing exhibits and constructing and equipping auditoriums and exposition buildings for such exhibits from State funds. It is readily apparent that such provision has a natural and logical connection with and is definitely tied in to the retained provisions. The amendatory act merely provides for the distribution of State monies to specified recipients on certain terms and conditions for certain purposes. County fairs or fair and exposition authorities are not regulated by the act, but only the expenditure of money from a State fund. Since the other various provisions are conceded to be conditions to the expenditure of public funds, and are directly attached to such grants, they are germane to and directly connected with State finance, and are within the scope of the title of the act.

Plaintiffs also complain that the use of the words “financing industrial, cultural, educational, trade and scientific exhibits,” constitutes an unlawful delegation of legislative power and a grant of administrative discretion without supplying any standards or definitions, and is so vague, uncertain and indefinite that the legislative intent cannot be ascertained, all in violation of section 1 of article IV of the constitution.

It is not possible for the General Assembly to deal with the details of each particular case which may arise in the administration of an act, and since the requirements of a statute can be stated only in general terms, a reasonable discretion must necessarily be reposed in administrative officials charged with its enforcement. (Zehender & Factor, Inc. v. Murphy, 386 Ill. 258; People ex rel. Rice v. Wilson Oil Co., 364 Ill. 406.) If the words used in a statute, taken in connection with their context, are commonly understood, their use does not render the statute invalid. Triner Corp. v. McNeil, 363 Ill. 559.

It would be difficult for the General Assembly to specifically state just what activities should be indulged in by a fair and exposition authority or by a county fair, and the legislature has used general terms to express these requirements. Although these terms are general, yet they are commonly understood, have been used in other statutes for many years, and are sufficiently certain that persons may correctly apply them. They spell out the framework of the legislative intent and leave the details to the reasonable discretion of the administrative officer who is given authority to1 administer the law.

A reading of the act in question readily discloses that the legislative intent and meaning in the use of other words such as “county fair,” “fair and exposition authority,” “participant” and other phrases is not vague, indefinite or uncertain as contended by plaintiffs.

In reference to the power granted to the Department of Agriculture to make and enforce rules and regulations, the authority of the Department is limited to such rules as are necessary “to carry out and enforce the provisions of this section” not just “as it deems necessary” and any regulations adopted must be reasonable. This delegation of authority to make rules is proper. People ex rel. Mosco v. Service Recognition Board, 403 Ill. 442.

As heretofore set forth, separate plaintiff Coutrakon contends that the amendatory act in three respects violates section 2 of article II of the constitution, which provides that no person shall be deprived of life, liberty or property without due process of law. No objection is made to the act as being special legislation or granting special privileges in violation of section 22 of article IV of the constitution. Does the present act deprive any county fair or fair and exposition authority of life, liberty or property ? Clearly the act involves no deprivation of life or liberty. The act specifies the terms, conditions, and circumstances under which a county fair or fair and exposition authority may receive a grant of funds from the State for certain purposes. At the most, such fair or authority could have only an expectation or anticipation of receiving a gift or bounty from the State. They at no time have any vested right to such gift or bounty, and no property interest therein. A right to be within the constitutional protection must be vested, or be something more than a mere expectancy. (Dodge v. Board of Education, 364 Ill. 547; Peoples Store of Roseland v. McKibbin, 379 Ill. 148; People ex rel. Eitel v. Lindheimer, 371 Ill. 367.) None of the plaintiff Coutrakon’s objections are well founded.

Finally, it is contended that the act is unconstitutional for failure to read the bill at large on third reading in the House of Representatives, in violation of that part of section 13 of article IV of the constitution which provides that “Every bill shall be read at large on three different days, in each house.” Although the complaint alleges such failure to read at large, it also incorporates therein by reference an exhibit of the House Journal. Such exhibit affirmatively shows the amendatory bill to' have been read at large. An exhibit attached to a complaint controls, and a motion to strike does not admit allegations in conflict with facts disclosed by the exhibit. (Fowley v. Braden, 4 Ill.2d 355.) The parliamentary history of an act or bill in the legislative journals is the only evidence that is recognized by the courts in this State, and the journals cannot be aided or contradicted by other documents or evidence of any kind. People ex rel. Sellers v. Brady, 262 Ill. 578; People ex rel. Seeberger v. Rose, 164 Ill. App. 159, aff’d. 254 Ill. 332.

The plaintiffs argue, however, that the legislative dissents and protests to the alleged failure to read the bill at large appear in the House Journal, that the journal therefore has the affirmative recitation that the bill was not read three times, is contradictory on its face and that such patent ambiguity therein must be resolved by evidence outside the journal. The fallacy in such argument is that the legislative dissents appearing in the journal thereby make the journal itself show there was no third reading. Such conclusion does not follow. The journal establishes merely that the dissents were filed and does not establish the truth or accuracy of statements contained therein. The journal record of reading is conclusive. Section 10 of article IV of the constitution provides that any two' members of either house shall have the liberty to dissent from and protest against any act which they think injurious to the public or to the individual, and have the reasons entered upon the journals. Such a protest or dissent has no force to contradict the journal. (Auditor General v. Board of Supervisors of Menominee, 89 Mich. 552, 51 N.W. 483.) The liberty of protest and dissent is a personal privilege merely, has no force as legislative action and cannot be resorted to to nullify a legislative act. It has no force as a statement of fact contradicting the journal.

The amendatory act is a valid enactment not subject to the constitutional objections advanced and the decree of the circuit court is affirmed.

Decree affirmed.

Mr. Justice HershEy took no part in the consideration or decision of this case.


author: Mr. Justice Schaefer

text:
    (No. 33949.
    The People of the State of Illinois, Appellee, vs. William K. Altman et al.—(Allan Slatin, Intervenor, Appellant, vs. Anne C. Rowan, Appellee.)

      Opinion filed September 25, 1956.

    George H. Morton, of Lombard, for appellant.
    John Guticnecht, State’s Attorney, of Chicago, (Gordon B. Nash, Vincent P. Flood, Charles D. Snewind, William S. White, and Francis X. Riley, of counsel,) for appellee the People of the State of Illinois, and Marshall S. Howard, of Chicago, (Owen N. Price, of counsel,) for appellee Anne C. Rowan.
   Mr. Justice Schaefer

delivered the opinion of the court:

The issue here is the timeliness of an attempted redemption from a tax foreclosure sale. Anne C. Rowan was the purchaser at the sale held pursuant to the foreclosure decree. The period of redemption expired August 31, 1954. On September 1, 1954, the court entered a supplemental decree which found that the period of redemption had expired and that the purchaser had complied with all applicable requirements, and directed the county clerk to execute and deliver a deed to the purchaser.

Two days after the entry of this decree, Allan Slatin, the beneficiary of a trust which had recently acquired title to part of the property, deposited with the county clerk $871.22, the amount necessary to redeem from the tax foreclosure sale.

On September 6, 1954, Miss Rowan presented a certified copy of the decree of September 1, and her certificate of purchase to the county clerk, and requested the issuance of a tax deed pursuant to the decree. The county clerk refused to issue a deed because of the redemption by Slatin on September 3.

On March 4, 1955, upon an oral motion of the county clerk, the court entered an ex parte order finding that the clerk had erroneously accepted Slatin’s deposit for redemption and erroneously showed on his records that a redemption was made by Slatin. The order directed the clerk to expunge the record of Slatin’s redemption, to deliver his deed to Miss Rowan as directed by the order of September 1, 1954, and to refund to Slatin his deposit of September 3, 1954. Thereafter the county clerk issued a deed to Miss Rowan.

On March 30, 1955, Slatin filed a petition to vacate the order of March 4, 1955. Answers were filed by the county clerk and by Miss Rowan, and after a hearing upon the validity of Slatin’s redemption, the court, on December 6, 1955, denied the petition. Slatin appeals. A freehold is involved. People v. Hess, 7 Ill.2d 192.

No question is raised as to the validity of the foreclosure proceedings or the propriety of the supplemental decree which directed the county clerk to issue a deed to Miss Rowan. Slatin bases his right to redeem in spite of the supplemental decree upon the following language in section 253 of the Revenue Act of 1939: “Such real property may also be redeemed after the expiration of two years from the date of sale, at any time up to the date a tax deed is issued, * * Ill. Rev. Stat. 1953, chap. 120, par. 734.

The language quoted appears to govern the present case, for there was here a redemption from a tax sale, and the redemption was made before the deed was issued. While the matter is not entirely free from doubt, we think that a different conclusion follows when the applicability of the full text of the provision to a proceeding of this kind is considered. The full sentence relied upon is as follows : “Such real property may also be redeemed after the expiration of two years from the date of sale, at any time up to the date a tax deed is issued, by payment in legal money of the United States to the said county clerk, of the amount for which the said property was sold, the penalties provided herein for the two years after sale, together with interest thereafter at six per cent per annum on the face amount of such tax sales, and subsequent taxes and special assessments paid by the purchaser, as herein provided, advertising fees and five dollars costs.” Ill. Rev. Stat. 1953, chap. 120, par. 734.

This language was drafted with redemptions from annual tax sales primarily in mind. Those sales take place after judgment is entered by the county court upon the county collector’s annual application for judgment of sale for delinquent taxes. The purchaser at such a sale pays in full the taxes for which the property is sold. Bidding at such sales is on the basis of the penalty bid made by the purchaser, the successful bidder being the one “offering to pay the amount due on each tract or lot for the least percentage thereon as penalty.” (Ill. Rev. Stat. 1953, chap. 120, par. 726.) The “penalties provided herein for the two years after sale” refer to the preceding provision of section 253 that redemption from such sales is to be made by payment of “the amount for which the same was sold, together with the amount of the penalty bid at such sale, if redeemed at any time before the expiration of six months from the day of sale; if between six and twelve months, the amount for which the same was sold, together with twice the amount of the penalty bid; if between twelve and eighteen months, the amount for which the same was sold, together with three times the amount of the penalty bid; if between eighteen months and two years, the amount for which the same was sold, together with four times the amount of the penalty bid at said sale.”

A proceeding like the present action in equity to foreclose the lien of taxes is authorized after property has been forfeited for two or more years for want of bidders at the annual tax sale. It is governed by section 216 of the Revenue Act of 1939. (Ill. Rev. Stat. 1953, chap. 120, par. 697.) It may be instituted in any court of competent jurisdiction and it culminates in a decree directing the sale of the property to the highest bidder. The proceeds of the sale are applied in satisfaction of the delinquent taxes, and the lien of the taxes is eliminated whether or not the proceeds of the sale are sufficient to' satisfy the lien in full. (French v. Toman, 375 Ill. 389.) While the “penalties provided” in section 253 “for the two years after sale” have always been applicable to annual tax sales, those penalties had no significance in tax foreclosure sales until 1953, when the method of penalty bids, with a uniform penalty bid assumed, was incorporated by reference into section 216 to govern the method of redemption in tax foreclosure proceedings thereafter instituted. People v. Lewis, 5 Ill.2d 117.

In both proceedings the facts that determine the substantive rights of the parties after a sale are the expiration of the period of redemption and the giving of the notices required by statute. The issuance of a deed automatically follows an authoritative determination that these events have occurred. When the provision in question came into law in 1933, (Laws of 1933, p. 923,) the statutes contemplated that as to deeds issued by the county clerk as the end result of a sale at the annual tax sale, the determination of these facts should be made administratively by the county clerk. With respect to tax foreclosure proceedings, the existence of these facts has always been judicially determined by the court and embodied in a supplemental decree. Clark v. Zaleski, 253 Ill. 63.

In the case of a deed following an annual tax sale, the administrative finding of compliance with statutory requirements and the issuance of the deed were simultaneous. But when the finding of compliance with the statutory requirements is judicially made, some interval of time must elapse between the judicial determination and the administrative action in compliance with that determination. In our opinion the General Assembly did not, by the provision relied upon, intend to emphasize the mechanical act of issuance of the deed and to minimize the significance of the determination upon which the rights of the parties turn. It did not intend that the effectiveness of the judicial determination should depend on the alacrity with which the administrative officer does what the judgment requires him to do. We hold, therefore, that the statute means that there may be redemption after the expiration of two years from the date of sale and until the determination of compliance with the statutory requirements has been made.

Our conclusion is not altered by the fact that in 1951 section 266 of the Revenue Act was amended to assimilate the procedure with respect to the issuance of deeds following annual tax sales to that used in tax foreclosure sales by requiring that the right to the issuance of a deed be determined by the county court instead of by the county clerk. (Laws of 1951, p. 943; Ill. Rev. Stat. 1955, chap. 120, par. 747.) The procedure thus fixed by statute is in substance that which had previously been used in tax foreclosure sales. (Clark v. Zaleski, 253 Ill. 63.) Nor is a contrary conclusion supported by the provision of the present statute strongly urged upon us by appellant, that the court “shall enter an order directing the county clerk on the production of the certificate of purchase and a certified copy of said order, to issue to the purchaser or his assignee a tax deed.” (Il1. Rev. Stat. 1955, chap. 120, par. 747.) This language deals with the mechanics of carrying out the order of the court which has found that the period of redemption has expired and that the purchaser is entitled to a deed. We do not read it as designed to- make the rights of the parties, which have been judicially determined, depend on the outcome of a race to the clerk’s office.

The order of March 4, 1954, which directed that the record of Slatin’s redemption be expunged, was entered without notice to him. But he was afforded a full opportunity to be heard upon the motion to vacate, and so the error, if any, is now of no significance.

The orders of March 4 and December 6, 1955, of the superior court are affirmed.

Orders affirmed.


author: Mr. Justice Schaeeer

text:
    (No. 33977.
    Harry Bodner et al., Appellants, vs. The County of Montgomery, Appellee.

      Opinion filed, September 25, 1956.

      John T. R. GodlEwski, of East St. Louis, for appellants.
    Otto E. Funk, State’s Attorney, of Hillsboro, for appellee.
   Mr. Justice Schaeeer

delivered the opinion of the court:

This case involves the title to a narrow strip of land in Montgomery County. The strip lies immediately south of a public road. In an earlier proceeding between the present parties, a decree of the circuit court found this road to have existed by prescription, and fixed its location and boundaries. The disputed strip is three-quarters of a mile long from east to west. It is 17JÍ feet wide at the eastern end and tapers to a width of 21 inches at the western end.

The land to the north of “the decree road” for the entire length of the disputed strip is owned by the plaintiffs. They are the heirs of Mary Bodner, who acquired title August 17, 1929, from the administrator of'the estate of John Arkebauer. The western portion of the land to the south of the road is owned by Walter and Mathilda DeVries. Their land extends for half a mile from west to east. It was acquired from John Arkebauer in 1929 by the DeVrieses’ predecessor in title. Immediately east of the DeVries land is the land of Walter and Adele Suhre, which extends one-fourth of a mile to- the east. This land has been owned by Mrs. Suhre and her father continuously since 1914.

The boundaries of the three parcels of land are described by quarter section lines. The center line of the section is the boundary between the Bodner land to the north and the DeVries and Suhre land to the south.

The location of the road which was decreed to exist by prescription was fixed with reference to the center of the foundations of a former bridge on the old road and the center of an interlocking culvert under that road. After the decree fixing the location of the road had been entered, the Bodners erected two fences, one of which was along the south boundary of the road. The other was along the center line of the section as located by a surveyor they employed after the decree fixing the location of the road was entered. These fences enclose the disputed strip of land, and prevent access to the road from the land to the south.

Thereafter the DeVrieses and the Suhres each dedicated to the county, for public road purposes, a strip of land 27feet wide lying immediately south of the road. This land embraces the disputed strip. When the county, relying on the decree which established the road and upon the DeVries and Suhre dedications, ordered the fences removed, the Bodners instituted this action to' enjoin the county from interfering with the fences they had erected. By its counterclaim the county sought to enjoin the plaintiffs from interfering with the use of the property for highway purposes. Many witnesses testified. The court entered a decree dismissing the complaint for want of equity and directing the plaintiffs to remove the fences. Plaintiffs appeal. A freehold is involved. Schwartz v. Piper, 4 Ill.2d 488.

The plaintiff’s claim is based upon record title and the location of the center line of the section as shown by the survey. The county claims title by the DeVries and Suhre dedications, and relies upon adverse possession to establish title in the dedicators.

No useful purpose would be served by a recital of the testimony of each of the witnesses. As to the Suhre land there can be no doubt that from 1914 on the land was cultivated by the owners to the south up to the old road. And since the location of the road established by the 1954 decree was fixed with reference to the center lines of a bridge and a culvert on the old road, it can not be doubted that adverse possession existed for the requisite period.

As to the DeVries land the situation is much the same. DeVries and his predecessors in title cultivated this land up to the old road except in those places in which a hedge lying to the south of the road prevented them from doing so.

Such minor doubt as may exist with respect to the DeVries land arises from the fact that this land and the land of the plaintiffs was owned by John Arkebauer until 1929, so that the prescriptive period does not run back of August 17, 1929, when the Bodners acquired title. Plaintiffs claim that the running of the prescriptive period was broken in the spring of 1949, when it is said that Stephen Bodner, one of the plaintiffs, plowed up and cultivated land to the south of the old roadway. Bodner’s testimony as to this occurrence is not precise. He said that plaintiffs plowed land south of the road, “I think for the first time in 1949.” He also testified that plaintiffs started plowing up to the old roadway “about 1950 — The reason we didn’t farm it prior to that was because we had use for that road.” Assuming that plaintiffs did their first plowing south of the road in 1949, it is argued that "To put land into cultivation, the plowing must be done in the Spring,” and so adverse possession by the DeVrieses must have been interrupted shortly before the statutory twenty-year period expired in August of 1949.

In our opinion the testimony of the plaintiff, Stephen Bodner, was too uncertain to indicate that adverse possession stopped short of the statutory period. Certainly the assumption that the plowing to which he testified necessarily took place in the spring of the year is unwarranted, for fall plowing and planting are common. In any case his testimony was controverted, and we can not say that the trial judge erred in resolving the controversy as he did. The record strongly savours of an attempt on the part of the plaintiffs to relitigate the issues which were determined in the earlier proceeding in which the existence and location of the road were determined.

The decree of the' circuit court of Montgomery County is affirmed.

Decree affirmed.