author: JUSTICE ALLOY

text:
    PATRICIA HARTLEY, Plaintiff-Appellant, v. WILL COUNTY BOARD OF REVIEW et al., Defendants-Appellees.
    Third District
    No. 81-595
    Opinion filed June 11,1982.
    Rehearing denied July 12,1982.

      Joseph C. Fitzgerald and James B. Harvey, both of McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

Lockport Township Assessor Patricia Hartley appeals from the dismissal of her complaint for a writ of certiorari. Hartley had petitioned the circuit court for the writ in order to obtain review over the action of the Will County Board of Review in setting the Lockport Township multiplier for 1980 tax assessments. In the complaint, she alleged that the county board of review had failed to follow specific statutory requirements in determining the township multiplier. A second count of the complaint, seeking injunctive relief against the county clerk and county treasurer to prevent collection of the second installment of 1980 taxes, was also presented to the circuit court. On motion of the defendants, the complaint was dismissed and this appeal followed. No issue is raised with respect to the injunctive count of the complaint. The appeal centers upon the propriety of dismissal of the count seeking a writ of certiorari.

The central statutory provision involved in this appeal is section 108a of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 589.1), which sets forth the duties of and procedures for the board of review when equalizing assessments:

“The board of review shall act as an equalizing authority. The board shall lower or raise the total assessed value of property in any assessment district within the county so that such property, other than property assessed in accordance with Section 20e of this Act, will be assessed at 33 1/3% of its fair cash value.
By means of a comparison of assessed valuations and estimated 33 1/3% of fair cash values established through the analysis of at least 25 property transfers, or a combination of at least 25 property transfers and property appraisals, such information as may be submitted by interested taxing bodies, and such other means as it deems proper and reasonable, the board shall annually ascertain and determine the percentage relationship for each assessment district of the county, between the valuations at which locally-assessed property, other than property assessed in accordance with Section 20e of this Act, is listed by assessors and the estimated 33 1/3% of the fair cash value of such property. Should there not be 25 property transfers available, or should these 25 property transfers not represent a fair sample of the types of properties and their proportional distribution in the assessment district, the board shall select a random sample of properties of a number necessary to provide a combination of at least 25 property transfers and property appraisals as much as possible representative of the entire assessment district, and provide for their appraisal. The township assessor shall be notified of and participate in any and all such deliberations and determinations.
With the ratio so ascertained and determined for each assessment district, the board shall then ascertain the amount to be added or deducted from the aggregate assessment on property subject to local assessment jurisdiction other than property assessed in accordance with Section 20e of this Act, in order to produce a ratio of assessed to 33 1/3% of the fair cash value equivalent to one hundred per cent. Provided, however, in determining the amount to be added to the aggregate assessment on property subject to local jurisdiction in order to produce a ratio of assessed value to 331/3% of the fair cash value equivalent to one hundred per cent, the board shall not, in any one year, increase or decrease the aggregate assessment of any assessment district by more than 25% of the equalized valuation of such district for the previous year, except that additions, deletions or depletions to the taxable property shall be excluded in computing such 25% limitation. The board shall complete the equalization of assessments to 331/3% of the fair cash value for the various assessment districts within the county by the date prescribed in Section 107 of this Act for the board’s adjournment, and shall, within 10 days thereafter, report the results of its work under this Section 108a to the Department. If the board fails to make this report to the Department within the required time, or if the report discloses that the board has failed to make a proper and adequate equalization of assessments, then the Department shall direct, determine, and supervise the assessment for taxation of all real and personal property to the end that all assessments of property be made relatively just and equal as provided in Section 130 of this Act.”

The pertinent facts in the record, taken from plaintiff’s petition, which for purposes of the motion to dismiss must be taken as true, indicate that the Will County Board of Review, on or about August 18, 1981, voted to utilize township multipliers to equalize real estate assessments throughout Will County. A multiplier of 1.2363 was adopted for application to real property located in Lockport Township, plaintiff Hartley’s township. Hartley’s complaint, in pertinent part, alleged that the board of review had proceeded illegally in adopting that multiplier, in that it failed to follow the mandates of the above set forth statutory provision. Specifically, as involved in this appeal, the complaint stated that the board never notified her, as township assessor, of the deliberations or determinations it made in arriving at the multiplier and that it never consulted with her in those deliberations or determinations. The statute states: “The township assessor shall be notified of and participate in any and all such deliberations and determinations.” (Ill. Rev. Stat. 1979, ch. 120, par. 589.1.) The complaint states that the property transfers considered by the board did not represent a fair sample of the types of properties and their proportional distribution in Lockport Township. It is also alleged that the board failed to select a random sample of properties of a number necessary to provide a combination of property transfers and property appraisals representative of the township district. Also asserted in the complaint is that the board violated the above provision in that it increased the assessment by more than 25% in one year. The final allegation in the complaint for writ of certiorari is that the petitioner Hartley has no other avenue for appeal or review of the action by the board, save by virtue of the writ of certiorari directed to the board of review, commanding it to certify and bring the record of its proceedings before the circuit court.

The complaint was filed by assessor Hartley on August 21,1981, three days after the action of the board of review on the multiplier. As noted previously, the complaint contained a count requesting injunctive relief, as well, but that count is not before us on this appeal.

The defendants filed a motion to dismiss the complaint, which was granted by the circuit court on August 31,1981, the court stating there was no basis for the complaint. Petitioner-assessor Hartley appealed from the dismissal.

The issue raised by the appellant Hartley is whether the common law writ of certiorari is a proper procedure by which to review the decision of the board of review in setting the township multiplier, where the allegations are that the board violated statutory requirements in setting the multiplier. For purposes of this appeal of the dismissal of her complaint, we will proceed accepting as true the allegations of fact contained in the complaint that the board did proceed in violation of the statute. The common law writ of certiorari is an ancient writ growing out of chancery, whereby a petitioner who was without avenue of appeal or review could obtain limited review over action by a court or other tribunal exercising quasi-judicial functions. (People ex rel. Loomis v. Wilkinson (1852), 13 Ill. 660, 661.) As stated by the supreme court in Kinsloe v. Pogue (1904), 213 Ill. 302, 304, citing Wilkinson:

“The law is too well settled in this jurisdiction to now be questioned, that the circuit courts of this State may award the common law writ of certiorari to all inferior tribunals and jurisdictions within the State where it appears that they have exceeded the limits of their jurisdiction or where they have proceeded illegally and no appeal is allowed or other mode provided by law for reviewing their proceedings.”

Again, in Jarman v. Board of Review (1931), 345 Ill. 248, 255,178 N.E. 91, the court stated:

“ ‘There are two classes of cases in which the circuit court may award the common law writ of certiorari to bring before the court for its inspection the record of an inferior court, tribunal or jurisdiction exercising functions judicial in their nature: First, where it is shown that the inferior court, tribunal or jurisdiction has exceeded its jurisdiction; second, where it is shown that the inferior court, tribunal or jurisdiction has proceeded illegally and no appeal or writ of error will lie and no other mode of directly reviewing the proceeding is provided.’ ” (See also Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412, 418-19, 305 N.E.2d 404.)

This limited application of the writ of certiorari must be stressed. It may be used to obtain review over a decision by an inferior court or tribunal, where it is shown that the inferior court or tribunal was without jurisdiction (either subject matter or in personam) or where it exceeded its jurisdiction. That has been perhaps its principal use in this State. In addition, it may be used to obtain review over a decision by an inferior court or tribunal where it is shown that the court or tribunal did not “proceed legally,” that is, where it did not follow the essential procedural requirements applicable to such cases. (Carroll v. Houston (1930), 341 Ill. 531, 535, 173 N.E. 657; Joyce v. Chicago (1905), 216 Ill. 466, 470, 75 N.E. 184; People ex rel. Maloney v. Lindblom (1899), 182 Ill. 241, 245, 55 N.E. 358; Drury v. Hurley (1949), 339 Ill. App. 33, 88 N.E.2d 728; People ex rel. Holland v. Finn (1927), 247 Ill. App. 53, 56-57.) This latter class of cases focuses upon whether the lower court or tribunal proceeded in accordance with the required essential procedures applicable to its jurisdiction and the action taken by it. As such, the inquiry, with its due process connotations, is closely akin to inquiry into the question of jurisdiction. In fact it has been held by some courts that failure to follow essential legal procedures constitutes action in excess of jurisdiction, for purposes of review by common law writ of certiorari. (Yoakum v. Small Claims Court (1975), 53 Cal. App. 3d 398, 125 Cal. Rptr. 882. See 14 Am. Jur. 2d Certiorari secs. 9, 64 (1964).) Thus, it has been held that where the record shows that the inferior court or tribunal acted within its jurisdiction and proceeded by the applicable procedural requirements, then the writ of certiorari will not lie. (Carroll v. Houston (1930), 341 Ill. 531,535; Joyce v. Chicago (1905), 216 Ill. 466, 470-71; People ex rel. Maloney v. Lindblom (1899), 182 Ill. 241, 245.) As the court indicated in those cases, a proper inquiry under a writ of certiorari is limited to those narrow questions, and inquiry is not proper as to whether the inferior court or tribunal correctly decided the questions before it. The supreme court in Joyce quoted from Lindblom:

“ ‘The inferior tribunal, where the record is brought before the court by writ of certiorari, may have erred in its rulings on questions of law during the progress of the trial or it may have erred in the application of the law to the facts in reaching its final judgment, and yet those errors cannot be reviewed and corrected in a proceeding of this character. On a return to a writ bringing the record before the court the only proper inquiry is whether the inferior tribunal had jurisdiction and proceeded legally,— i.e., followed the form of proceedings legally applicable in such cases,— and not whether it correctly decided the questions arising upon the admission or exclusion of evidence, the giving and refusing of instructions, and other like questions, during the progress of the trial. The rulings of a court may be erroneous and yet it may have jurisdiction and proceed legally.’ ” (216 Ill. 466, 471, quoting from 182 Ill. 241.)

The proceedings under a writ of certiorari were outlined also in Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412, 418-19:

“Trial of the certiorari count, however, was governed by different rules. The writs, on their return, brought the relevant records in order that the trial court could determine whether, with regard to the assessments involved, the Board had jurisdiction and had acted in accordance with law. [Citation.] The trial was to consist only of an inspection of the records of the Board’s proceedings. [Citations.] Questions of fact could not be reviewed or decided. [Citations.] The record could not be contradicted, it being the rule that, in the absence of statutory authorization, a trial court on the return of the writ of certiorari cannot admit extrinsic evidence whether to support or overthrow the proceeding being reviewed. [Citations.] With regard to the judgments which the court could enter, there were only two: (1) If from its record it appeared that the Board lacked jurisdiction or that its actions were illegal, the trial court could quash the Board’s proceedings. (2) If it appeared that the Board had jurisdiction and its actions were legal, the certiorari counts had to be dismissed and the writs quashed. [Citations.]” (See also Jarman v. Board of Review (1931), 345 Ill. 248, 255-59,178 N.E. 91.)

The Jarman case dealt with an allegedly improper assessment of omitted credits for taxation against an estate. In that case, the supreme court reviewed the applicable rules of law with respect to review by common law writ of certiorari (345 Ill. 248, 254-58), with the court concluding that the writ should issue and the board of review’s proceedings were quashed (345 Ill. 248, 259). The basis for that decision was a failure to abide by essential procedural requirements, specifically the essential procedural requirement that the record show that evidence was heard to support the decision reached. There, the court found the record devoid of any evidence to sustain the determinations of the Board. (345 Ill. 248, 259.) The court in Jarman also found that certain allegedly available other adequate remedies were not in fact adequate avenues for review. (345 Ill. 248, 254-56.) As noted, the absence of other adequate remedies for direct review is another essential precondition to review by common law certiorari.

Having set forth the applicable law, we turn then to the facts of the case at bar. Initially, the procedural aspects of the case must be emphasized. The trial court had before it a petition for writ of certiorari, alleging certain illegalities by the board of review in setting the Lockport Township multiplier. The request in the petition was that a writ issue to the board to bring the record of its proceedings before the court for review. That petition and its request were dismissed. The issue is whether the factual allegations in plaintiff’s petition, which must be taken as true at this stage, were sufficient to state a basis for review by common law writ of certiorari. The alleged statutory violations included: (1) that the board did not give notice to the township assessor, nor did it consult with her in its deliberations and determinations; (2) that the board did not consider a fair representative sample of properties; (3) that the board failed to select a random sample of properties representative of the district; and (4) that the board increased the assessments for one year in excess of the permissible 25%. It was also alleged that no other avenue of direct review over the board’s action was available. The question, specifically, is whether any of these violations is sufficient to establish that the board of review acted without jurisdiction, or exceeded its jurisdiction, or that it proceeded outside of the essential and required form of procedure applicable to it by statute in determining the multiplier for Lockport Township.

Before addressing those questions, however, we are met by the board of review’s assertion that the plaintiff Hartley is without standing to bring the certiorari action, either in her capacity as township assessor or as a taxpayer of Lockport Township. Plaintiff Patricia Hartley alleged in her complaint that she owned real estate at 323 Dundee Drive, Lockport, Illinois, in Lockport Township. As an owner of real property subject to taxation in the township assessment district, plaintiff Hartley asserts a sufficient interest as an affected party so as to confer standing upon her. The defense’s argument to the contrary is without merit. They correctly note that the board of review’s powers as an equalizing authority are limited to county property other than farmland. Then, however, they argue that by failing to allege that her property was other than farmland, Hartley failed to state sufficient facts to show that her property would be affected by the setting of the township multiplier. We would note that pleadings must be liberally construed and that Hartley’s real property is alleged to be located at 323 Dundee Drive, Lockport, Illinois, which, with a liberal construction, would give rise to the inference that it was not farmland. We reject the defense argument, concluding that plaintiff alleged sufficient facts to give her standing as a taxpayer. As to her standing as township assessor, the defendants contend that even though she is required by section 108a to participate in all equalization deliberations and determinations of the board of review, nevertheless their failure to notify her of such deliberations, with the resultant lack of participation by her, is without sufficient effect upon her interests to support standing. They argue that since they did not give her notice, she would possibly not be liable for any unlawful increase or decrease in tax assessment. In the first place, the legislature determined and mandated that the township assessor be given notice and participate in the equalization deliberations and determinations of the board of review. Given that mandate, it would be anomalous to find that the assessor is without standing to challenge board of review action in failing to give her notice, or in proceeding without her participation. She is an aggrieved party when not notified and not given an opportunity to participate, since she has thereby been effectively prevented from fulfilling her duties as township assessor. This is so regardless of any potential liability or the lack of it. Furthermore, it is certainly an open question whether such liability would or would not attach if the assessor were to acquiesce in her omission from the deliberations, if they were subsequently determined to have unlawfully set the valuation. Section 322 (Ill. Rev. Stat. 1979, ch. 120, par. 803) states:

“Any assessor, or deputy assessor, county assessor, member of the board of appeals or member of the board of review, or other person whose duty it is to assess property for taxation or equalize any such assessment, who shall refuse or knowingly or wilfully neglect any duty required of him by law, or who shall consent to or connive at any evasion of the provisions of this Act whereby any property required to be assessed shall be unlawfully exempted in whole or in part, or the valuation thereof be set down at more or less than is required by law, shall be guilty of a Class A misdemeanor. He shall also be liable upon his bond to the party injured for all damages sustained by such party as above provided, and shall also be removed from office by the judge of the court before whom he is tried and convicted.” (Emphasis added.)

Plaintiff assessor Hartley has standing, as assessor as well as taxpayer, to bring the action for a writ of certiorari. We turn next to the question of whether the alleged deficiencies by the board were reviewable under the certiorari writ.

Plaintiff Hartley argues that her complaint alleged that the board of review had proceeded illegally in determining a multiplier, on the specifics before stated, and that it alleged that she had no other mode of direct review over their action. Therefore, according to Hartley, she had brought herself within the proper scope of common law certiorari proceedings. The defendants, on the other hand, argue that such review will only lie where defects in subject matter or personal jurisdiction are alleged, and no such allegations were made in plaintiff Hartley’s petition. Further, the defense argues, even if available to challenge these illegal actions, the writ would not be available to plaintiff since she has other avenues of review available to her. Neither party is correct in its presentation of the scope of application for the common law writ of certiorari. The proper scope has previously been set forth in this opinion. The writ is not available to review all manner of illegalities by an inferior court or tribunal, but neither is it restricted solely to review over questions of subject matter and personal jurisdiction. It is available, when other manner of direct review is absent or inadequate, to review actions by inferior courts or tribunals where such action is alleged to have been taken without jurisdiction or in excess of jurisdiction, or where such action was taken without complying with the essential forms of proceeding applicable to the inferior court or tribunal. To the questions of whether plaintiff Hartley’s allegations are sufficient to state a claim for review by common law certiorari we now turn.

Plaintiff Hartley’s allegations (1) that the board did not consider a fair representative sample of properties in the township, (2) that it did not select a random sample representative of the district, and (3) that it increased the assessment by more than the permissible 25% in one year are allegations which are not sufficient for review by common law certiorari. None of the above affect or challenge the jurisdiction of the board of review, nor do they indicate that the board failed to follow the essential form of procedure applicable to it. Allegation (1) posits an evidentiary question as to whether the sample considered was representative. It does not allege that the board failed to consider property transfers in making its decision. Allegation (2) is premised upon a finding that (1) is correct, in that the duty to select a random sample only arises, under the statute, when 25 property transfers are not available or are not representative. These evidentiary matters are not reviewable by certiorari. The issue raised in allegation (3) is a substantive one, not relevant to jurisdiction or essential procedure, and would require extrinsic evidence. We find these allegations of illegalities insufficient as a basis for review of the board’s action by common law certiorari. There is a fourth allegation, however, which stands on a different footing.

Plaintiff’s petition also alleged that the board failed to give her the notice required to be given township assessors by statute and that it failed to consult with her in deliberating and determining a multiplier for her township. We find this to have been a serious violation of the requirements of the statute. The statute states: “The township assessor shall be notified of and participate in any and all such deliberations and determinations.” (Ill. Rev. Stat. 1979, ch. 120, par. 589.1.) The legislature has mandated that prior to the board’s deliberations and determinations on the multiplier question, the township assessor involved must be given notice and must participate in the deliberations and determinations. This statutory requirement sets forth an essential form of proceeding within which the board is to carry out its obligations to equalize the assessed valuations. The board is to proceed only after notice has been given and the assessor is given his opportunity to participate. Obviously, in this requirement we can see a legislative view that the assessors are both necessary and interested parties in such board decisions. That view no doubt stems from an awareness that the local assessors are often the persons most intimately acquainted with real estate matters in the townships. We conclude that any failure by the'board to follow the requirement of the statute that it notify the township assessor of its proceedings, and afford an opportunity for the assessor’s participation, constitutes a failure by the board to conform to the essential form of proceeding set forth and mandated by the statute. It is of little consequence whether we term such failure “acting in excess of jurisdiction” or “proceeding illegally,” that is, outside the essential form of procedures legally applicable. Whichever characterization we use, it is clear that such a failure is sufficient to state a basis for review by common law certiorari, providing that no adequate review is available by other manner. To that issue we now turn.

The defendants assert that there existed other sufficient remedies at law whereby plaintiff Hartley could have challenged the board’s allegedly improper action. Specifically, they point to review by the property tax appeal board (Ill. Rev. Stat. 1979, ch. 120, par. 592.1) and review by payment under protest (Ill. Rev. Stat. 1979, ch. 120, pars. 675, 676, 716). We find such alleged remedies inadequate.

Review by the property tax appeal board is available to taxpayers or taxing bodies. The initial procedure for such review is set forth in section 111.1 of the Revenue Act of 1939:

“In any county other than a county of over 1,000,000 population, any taxpayer dissatisfied with the decision of a board of review as such decision pertains to the assessment of his property for taxation purposes, or any taxing body that has an interest in the decision of the board of review on an assessment made by any local assessment officer, may, within 30 days after the date of written notice of the decision of the board of review, appeal such decision to the Property Tax Appeal Board for review.” (Ill. Rev. Stat. 1979, ch. 120, par. 592.1.)

Although aware of an Illinois Attorney General’s opinion (1978 Ill. Op. Att’y Gen. 68) that concluded that multiplier decisions by boards of review were reviewable by the tax appeal board, we find that not to be the case here. The matter was correctly analyzed by the court in Commonwealth Edison Co. v. Tucker (1980), 86 Ill. App. 3d 630, 634,408 N.E.2d 364:

“Section 109a of the Revenue Act provides that if a decision of a board of review is reviewable by the Property Tax Appeal Board, written notice of the decision and the procedures for review must be personally served on all affected taxpayers. (Ill. Rev. Stat. 1975, ch. 120, par. 590.1.) Edison claims that it was not given individual notice of the board of review’s multiplier decision. Such a lack of personal notice is understandable as multiplier decisions have uniform township or county-wide application and thus notice by publication, and not personal service, is all that is required by statute. (Ill. Rev. Stat. 1975, ch. 120, par. 589(5).) In light of the fact that notice by publication is the accepted practice for multiplier decisions, we conclude that, notwithstanding the Attorney General’s Opinion, multiplier decisions were not intended to be reviewable by the Property Tax Appeal Board under section 111.1.”

Furthermore, such appeals, by section 111.1, must pertain to the assessment of the taxpayer’s property, and in this case, plaintiff Hartley, as township assessor with standing to object to her lack of notice as township assessor, has objections apart from any question of an assessment of her property.

The other alleged remedy, payment under protest, is also available only to taxpayers (Ill. Rev. Stat. 1979, ch. 120, par. 675), and the issues in such proceeding are limited to matters of valuation. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299.) In the instant case, the question is one of compliance with the procedural requirements of the statute, not a valuation question, and is made by the township assessor required to be given notice, not by a taxpayer dissatisfied with his assessment. We find that plaintiff Hartley, as township assessor, had no direct avenue of review available to her by which to challenge the actions of the board of review in proceeding without giving her notice and an opportunity to participate. Having determined that Hartley’s complaint sufficiently alleged that the board did not proceed legally, in that it did not give her notice, and that as township assessor she had no adequate remedy for review of that action, we conclude that the plaintiff’s complaint, as to that allegation, sufficiently stated a cause of action for review by common law writ of certiorari. Plaintiff’s petition should not have been dismissed, insofar as it sought review by certiorari over the board’s failure to afford her notice and opportunity to participate. We would note that absent such review, the board of review’s failure to comply with the statutory requirement would pass unreviewable. The circuit court should not have dismissed the certiorari count of plaintiff Hartley’s complaint, insofar as it sought review of the failure by the board to give her notice, as township assessor.

The action of the Will County Circuit Court is reversed as to that basis for review, and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded, with directions.

STOUDER and HEIPLE, JJ„ concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    PARTEL, INC., Plaintiff-Appellee, v. HARRIS TRUST AND SAVINGS BANK, Trustee, et al., Defendants.—(MENDEL MARGOLIS, Plaintiff-Appellant.)
    First District (5th Division)
    No. 81-521
    Opinion filed March 31,1982.
    Supplemental opinion filed on denial of rehearing June 30,1982.

      Joel L. Widman and Laurence C. Kozlicki, both of Chicago (Kozlicki, Widman & Schenk, Ltd., of counsel), for appellant.
    Allen I. Brown, of Allen I. Brown, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff Mendel Margolis (Margolis) appeals from an order which denied his petition for certain escrowed insurance proceeds and reimbursement for maintenance and other costs, and which granted the counterpetition of plaintiff Partel, Incorporated (Partel), for those insurance proceeds. Margolis contends that (1) he is entitled to the proceeds under a mortgage providing that in case of foreclosure such proceeds are payable to the owner of the certificate of sale; and (2) he is entitled to reimbursement for the various costs he advanced.

It appears that Harris Trust and Savings Bank, as trustee (Harris Bank), as the owner and mortgagor of the commercial realty in question, defaulted on the payments of three mortgages — the first in order of priority being held by Chicago Federal Savings and Loan Association (Chicago Federal), the second by Margolis, and the third by Partel. The present dispute arose from consolidated mortgage foreclosure litigation involving those mortgages.

In an order entered on November 21,1980, the trial court found that Partel’s interest in the subject property was inferior to that of Chicago Federal and Margolis, respectively, and it entered a judgment of foreclosure and sale in favor of Chicago Federal and Partel and against Harris Bank. The adjudicated indebtedness to Chicago Federal totaled $160,551.61; that to Margolis was $207,952.37; and to Partel, $127,411.79. The order also provided that the trial court would reserve jurisdiction to enter a deficiency judgment in favor of Partel; that Partel’s rights to the insurance proceeds in question were not affected; that public sale be stayed until after January 1, 1981, and that Stuart Kaiserman, who had been appointed managing agent for the premises by agreement of the parties and who managed the premises until the foreclosure sale, could present his petition for fees and costs.

Prior to the November 21 order, the mortgagees had been advised that there would be available to Harris Bank a casualty loss insurance check for $51,573 from a fire in November 1979 — before commencement of the instant litigation — and at the time of the foreclosure judgment the parties were directed to endorse the insurance check and place it in escrow, with counsel for Partel as escrowee, pending further court order. Thereafter, Margolis incurred costs of $9,264.35 for guard and maintenance services at the premises.

At the public foreclosure sale on January 6, 1981, Margolis as high bidder offered $392,726.76, which was the entire amount of his adjudicated lien plus the superior lien of Chicago Federal. The sale was approved on January 14, 1981, and a deficiency judgment of $129,171.31 was entered in favor of Partel and against Harris Bank on January 16, 1981.

Margolis moved for a turnover of the insurance proceeds on the basis that he was the successful bidder at the foreclosure sale and for reimbursement of the $9,264.35 advanced for guard and maintenance expenses. Partel counterpetitioned for the same proceeds and, on February 2,1981, Partel was awarded the proceeds to be applied to the deficiency judgment against Harris Bank, the court holding that because Margolis had extinguished his debt by bidding his entire adjudicated lien, he had no further contractual rights. Finding, additionally, that Margolis’ pleadings did not support his claim of partial reimbursement, the court denied the claim without prejudice. This appeal is from the February 25 order.

Opinion

Margolis’ principal contention is that, under the mortgage of Chicago Federal, he is entitled to the insurance proceeds in question as the successful bidder at the foreclosure sale. We disagree. Clause 3. A. of that mortgage provides in relevant part:

“The Mortgagor covenants:
(3) To keep the improvements now or hereafter situated upon said premises insured against loss or damage by fire, * * * as the Mortgagee may reasonably require to be insured against * * *; [S]uch insurance policies 0 0 0 shall contain a clause satisfactory to the Mortgagee making them payable to the Mortgagee, as its interest may appear, and in case of foreclosure sale payable to the owner of the certificate of sale, owner of any deficiency [or] any receiver ° 0 and in case of loss under such policies, the Mortgagee is authorized to adjust, collect and compromise in its discretion, all claims thereunder * *

In Weiner v. Landry (1970), 131 Ill. App. 2d 221, 264 N.E.2d 828, insurance proceeds became available as a result of fire damage to the mortgaged property. The damage occurred after foreclosure proceedings began but before the decree was entered and before the premises were sold to the first and paramount lienholder. At the direction and on behalf of the mortgagor, the first lienholder had placed the insurance on the property, paid premiums as an advance to the mortgagor, and received credit for the premises at the time of sale. At the foreclosure sale, the lien of the first lienholder was liquidated on its bid (except for a small deficiency sum). Citing Johnson v. Zahn (1942), 380 Ill. 320,44 N.E.2d 15, as the source of a presumption that the bid placed on realty at a foreclosure sale by a first lienholder represents the fair cash value of the property, the court held that the subordinate lienholder was entitled to recover the excess insurance proceeds from the first lienholder.

We believe the facts before us compel the same result as in Weiner. Here, although the fire loss occurred before commencement of foreclosure proceedings, it also occurred before the judgment of foreclosure and sale. As Margolis does not argue to the contrary, it seems clear that his bid was made with full knowledge of the condition of the premises, of the existence of the insurance proceeds, and of the trial court’s order placing the proceeds in escrow to be disbursed pursuant to further order. There also is no indication that Margolis, unlike the first lienholder in Weiner, placed insurance on the property, paid the premiums as an advance to Harris Bank, or sought to receive credit at the time of sale. Moreover, at the foreclosure sale, Margolis, like the first lienholder in Weiner, bid his entire adjudicated indebtedness, and Margolis refers us to no part of the record which would suggest that he bid anything other than the fair cash value of the property and thus might be entitled to a deficiency judgment.

In Whitestone Savings & Loan Association v. Allstate Insurance Co. (1971), 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694, on significantly similar facts, the court held that a mortgagee who obtained the mortgaged property by bidding the full amount of its secured debt at the foreclosure sale was not entitled to a deficiency judgment against the mortgagor, which thereby terminated the mortgagee’s interest in a fire loss insurance policy. The same principle has been applied by the courts of other jurisdictions under substantially similar circumstances. (See, e.g., Smith v. General Mortgage Corp. (1978), 402 Mich. 125, 261 N.W.2d 710; Northwestern National Insurance Co. v. Mildenberger (Mo. App. 1962), 359 S.W.2d 380.) The reasoning of the court in Whitestone Savings is particularly instructive:

“Because a mortgagee is entitled to one satisfaction of his debt and no more, the bidding in of the debt to purchase the mortgaged property, thus cutting off other lower bidders, has always constituted a satisfaction of the debt [citations], * * * [T]he mortgagee has voluntarily converted the debt into the property and has done so by taking the property in satisfaction of the debt.
The theory of recovery by a mortgagee is indemnity. The risk insured against is an impairment of the mortgaged property which adversely affects the mortgagee’s ability to resort to the property as a source for repayment. Where the debt has been satisfied in full subsequent to the fire, neither reason nor precedent suggest recovery on the policy by the mortgagee. * * e The rule is not harsh and it is eminently practical. None disputes that the mortgagee is entitled to recover only his debt. Any surplus value belongs to others, namely, the mortgagor or subsequent lienors.” (28 N.Y.2d 332, 335-37, 321 N.Y.S.2d 862, 864-66, 270 N.E.2d 694, 696-97.)

In light of the above-cited authorities, we hold that Margolis’ purchase at the foreclosure sale for the full amount of the balance due on the note secured by the mortgage extinguished the debt of Harris Bank as to Margolis and terminated his asserted interest in the insurance proceeds under the mortgage provision in question.

We also find no merit to Margolis’ claim to reimbursement for the costs of providing guard service, board-up, and maintenance at the instant premises. That claim, which is based solely upon Margolis’ motion submitted after the foreclosure, makes no reference to Margolis’ original complaint and does not set forth a legal theory to support the claim. In denying the motion, the trial court stated in effect that there was nothing in the pleadings to support the claim for the alleged expenses.

The issues in a case are created by the pleadings and allegations, to which the proof must correspond (City of Chicago v. Harris Trust & Savings Bank (1977), 56 Ill. App. 3d 651, 371 N.E.2d 1182; Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454,300 N.E.2d 616), and a party cannot have relief under proof without allegations (Gault v. Sideman (1963), 42 Ill. App. 2d 96, 191 N.E.2d 436). In the present case, we believe the trial court correctly determined that Margolis’ complaint contained no allegation upon which to base the claim to reimbursement. We note, in addition, that by virtue of the foreclosure sale, Margolis had no judgment against Harris Bank and that he filed no pleading requesting judgment against Partel.

Even if such allegation had been made, the proof appears to have been to the contrary. The record indicates that on July 25,1980, by agreement of the parties, the court appointed Stuart Kaiserman managing agent for the premises and gave him duties essentially equivalent to those of a court-appointed receiver. Kaiserman managed the premises until the date of the foreclosure sale and made certain expenditures, with court approval, aggregating to $19,638.59, for which the court gave Kaiserman a first lien on the premises superior to those of the mortgagees. Margolis does not contend that Kaiserman failed to fulfill his duties. Moreover, the invoices submitted by Margolis with the motion for reimbursement cover the period from November 12, 1980, to January 4, 1981, which is within the time of Kaiserman’s management. Finally, it does not appear that Margolis ever requested the authority to make the expenditures in question. In the light thereof, we see no error in the denial of the motion.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In his petition, plaintiff Mendel Margolis (Margolis) contends that (1) we misapplied the presumption of Weiner v. Landry (1970), 131 Ill. App. 2d 221, 264 N.E.2d 828 — that one who bids at a foreclosure sale bids the fair market value of the property; (2) his contract rights were “overlooked”; and (3) we erroneously assumed that Stuart Kaiserman, the court-appointed managing agent, managed the premises until the date of the foreclosure sale.

Concerning the first contention, Margolis maintains that because his bid exactly equaled the combined amount of indebtedness due him, together with the amount of the senior liens, it should be presumed that his bid at the foreclosure sale was limited “to the combined amount of such indebtedness” and that “he would have reduced his bid accordingly by the amount the insurance proceeds would have reduced the indebtedness had they been available to apply to the debt prior to the sheriff’s sale.”

We view this contention to be without merit. Margolis asks the court to assume, in effect, that had he known the insurance proceeds could be applied to the mortgage debt, he would have reduced his bid by that amount. He does not, however, dispute the facts of the case; rather, it appears that he asks us to disregard them — in particular, the fact that the bid was made with the full knowledge of the condition of the premises and of the existence of the insurance proceeds whi<?h had been escrowed pending further court order.

As to Margolis’ subsidiary point, that the court’s application of the Weiner presumption gave Partel “a free $100,000 swing position,” it appears that Margolis assumes the insurance proceeds had already been disbursed to Partel prior to the foreclosure sale. This, too, is contrary to the facts, inasmuch as those proceeds were not awarded until after the sale when they were applied to the deficiency judgment in favor of Partel against the mortgagor — defendant Harris Trust and Savings Bank. Margolis’ assertion would, in essence, require us to assume, contrary to the record, that Partel was not a subordinate lienholder, for only by so doing would it be possible to regard the award of the proceeds as the “free use” of money.

In summary, Margolis did not present facts sufficient to rebut the Weiner presumption, and because he makes no further reference to any in his petition, we adhere to our holding that the debt was satisfied by his bid on the property. As stated in Whitestone Savings & Loan Association v. Allstate Insurance Co. (1971), 28 N.Y.2d 332, 335, 270 N.E.2d 694, 696, he “voluntarily converted the debt into the property and [did] so by taking the property in satisfaction of the debt.” To award Margolis any part of the insurance proceeds would amount to payment beyond the extinguishment of the debt, which the facts indicate was fully known to him at the time that he entered his bid.

Margolis’ second contention, that the court “overlooked” his contract rights to the insurance proceeds, is also without merit. He claims that there were fewer facts in support of the lienholder’s claim to insurance proceeds in Weiner than in the present case. However, as we explained in the opinion, it appears that there was less in favor of Margolis’ right to the insurance proceeds than was shown in Weiner, and thus the conclusion here — that Margolis was not entitled to them — is stronger than in Weiner.

Furthermore, the contract rights of Margolis have not been overlooked. Under clause 3.A. of the mortgage, insurance proceeds available pursuant to foreclosure are “payable to the owner of the certificate of sale [Margolis], owner of any deficiency [Partel] [or] any receiver.” Since there was full satisfaction of Margolis’ debt, the only contract rights to be protected in the present case were those of Partel. That indebtedness was satisfied in part through the award of the insurance proceeds against the deficiency judgment in favor of Partel.

Finally, as to the contention that we erroneously assumed that Stuart Kaiserman managed the premises until the foreclosure sale, we note that Margolis presents no facts to the contrary. Instead, he maintains that we implied his “actions and expenditures were extraneous and unnecessary.” Our opinion, however, carries no such implication. Rather, it is based upon the propositions (1) that Margolis had no judgment against Harris Bank since he in effect owned the property; (2) that he did not seek a judgment against Partel; and (3) that he presents no facts from the record other than those set forth in the opinion. Thus, there is no implication that Margolis’ expenditures were unnecessary; but, rather, that he failed to properly present his claim to the trial court in the form of a legal theory, and he does not show how the record might support any such theory. Margolis’ argument is, therefore, beside the point.

The petition for rehearing is denied.

LORENZ and MEJDA, JJ., concur.


author: PRESIDING JUSTICE WHITE

text:
    CLEMENT PRITZ, JR., Plaintiff-Appellant, v. ELIZABETH BONNIE CHESNUL et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-1805
    Opinion filed May 19,1982.

      Frank T. Steponate and Thomas G. Merkel, both of Friend and Steponate and Associates, Ltd., of Chicago, for appellant.
    Barbara B. Hirsch, of Chicago (Margaret C. Benson, of counsel), for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Clement Pritz, Jr., appeals from an order of the circuit court of Cook County which dismissed his verified “Complaint for Declaratory Judgment to Establish Paternity of Child and Right of Visitation.” The complaint names Elizabeth Bonnie Chesnul and Ericka Christine Pritz Chesnul as defendants and contains the following allegations: that plaintiff is the natural father of Ericka who was born on May 27,1977; that the child’s birth certificate bears the name of Ericka Christine Pritz Chesnul; that plaintiff and defendant Elizabeth dated exclusively from approximately January 1976 to May 1977; that after the child was born, plaintiff voluntarily contributed substantially to the support and maintenance of the child and that he continues to do so; that plaintiff and defendant Elizabeth were never lawfully married; that plaintiff has been allowed to visit with the child on a continuing basis; and that the plaintiff on many occasions has been permitted to spend an entire weekend with the child. In his prayer for relief, plaintiff sought a judgment declaring that he is the natural father of Ericka and establishing his support obligation and visitation rights. He also prayed that the court consider awarding care, custody and control of Ericka to him. Significantly, the complaint does not purport to be based on the Paternity Act (Ill. Rev. Stat. 1977, ch. 40, pars. 1351 et seq.).

Defendant responded to the complaint by filing a motion to dismiss on the grounds that the complaint failed to state a cause of action. The trial judge sustained the motion to dismiss the complaint because the Illinois Paternity Act does not provide for the putative father to bring this cause of action.

The questions presented on appeal are whether section four of the Paternity Act bars actions by putative fathers to establish paternity, and does it thereby deprive them of the equal protection of the laws guaranteed by the fourteenth amendment of the United States Constitution. We do not reach the latter question because we conclude that the Paternity Act should not be construed to bar a declaratory judgment action by a putative father to establish his parentage and parental rights.

A preliminary issue is raised with regard to an order entered by this court in this case. Two days subsequent to oral argument, we entered an order allowing the parties time in which to file additional briefs on the issue of whether plaintiff’s complaint stated a cause of action other than under the Paternity Act. Defendants argue that the plaintiff raised no issues other than the constitutionality of section 4 of the Paternity Act in his original brief, and that this court erred in disregarding plaintiff’s waiver of any issues other than the constitutionality of that section. Initially, we note that we requested additional briefs because there would be no equal protection problem if an unwed father was able to maintain this declaratory judgment action other than under the Paternity Act.

Defendants correctly argue that the failure to argue a point in one’s brief is generally a waiver of the point on review. (73 Ill. 2d R. 341(e)(7); Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 386, 385 N.E.2d 664.) However, the waiver rule as expressed in Supreme Court Rule 341(e)(7) states an admonition to the parties and is not a limitation upon the jurisdiction of a reviewing court. (Hux v. Raben (1967), 38 Ill. 2d 223, 224, 230 N.E.2d 831.) The Hux court stated that the supreme court rules “recognize that the responsibility of a reviewing court for a just result and for the maintenance of a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversary character of our system,” subject to the limitation that an appellate court will not “ ‘consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.’ ” (38 Ill. 2d 223, 225.) This limitation is not applicable here. We elect to consider the issue of whether a cause of action was stated other than under the Paternity Act.

The United States Supreme Court has recognized that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. (Quilloin v. Walcott (1978), 434 U.S. 246, 54 L. Ed. 2d 511,98 S. Ct. 549; Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208; R. McG. v. J. W. (Colo. 1980), 615 P.2d 666, 673 (Dubofsky, J., specially concurring).) In Stanley, an unwed father attacked an Illinois statutory scheme under which the children of unwed fathers became wards of the State upon the death of the mother. The court stated that Stanley’s interest, as an unwed father, in retaining custody of children he has sired and raised is cognizable and substantial and warrants deference (405 U.S. 645, 652, 31 L. Ed. 2d 551,559, 92 S. Ct. 1208, 1213), and that the integrity of the family unit, including family relationships unlegitimized by a marriage ceremony, finds protection in the due process clause (405 U.S. 645, 651, 31 L. Ed. 2d 551, 559, 92 S. Ct. 1208, 1213). In short, the relationship between parent and child is constitutionally protected. (Quilloin v. Walcott (1978), 434 U.S. 246, 255, 54 L. Ed. 2d 511, 519, 98 S. Ct. 549, 554.) Our supreme court, relying on Stanley, has stated that “the interests of the father of an illegitimate child are no different from those of other parents.” People ex rel. Slawek v. Covenant Childrens Home (1972), 52 Ill. 2d 20, 22, 284 N.E.2d 291.

Stanley has been interpreted to recognize a right in the putative father to establish that he is the natural parent of a child. In Slawek v. Stroh (1974), 62 Wis. 2d 295, 303, 215 N.W.2d 9, 14, the court stated that, “Stanley v. Illinois “ ” in effect, recognized that fathers, including putative fathers, do have the right to establish they are a natural parent and, as such, have some parental rights and duties.” The court concluded:

“[T]he plaintiff-appellant, as a putative father of an illegitimate child, does have the constitutional right to establish, if he can, his natural parentage, to assert parental rights, and a legal forum with due process procedures to establish these rights.” (62 Wis. 2d 295, 304, 215 N.W.2d 9, 15.)

Stroh is instructive here because the fact situation in that case is very similar to the facts of the instant case. In Stroh, the putative father commenced an action for a judicial declaration that he was the father of an illegitimate child. Like Illinois, Wisconsin’s statutory procedure for establishing the parentage of illegitimate children (at least at the time of the opinion in Stroh) did not contemplate nor provide procedures for the commencement of a paternity action by the putative father.

We find the reasoning of Stroh persuasive, and we conclude that the plaintiff, as the putative father of an illegitimate child, had the constitutional right to a legal forum with due process procedures to establish his natural parentage and his parental rights.

Our conclusion that the Paternity Act should not be construed to bar this declaratory judgment action is supported by Illinois case law. In Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107,427 N.E.2d 974, the plaintiff filed an action seeking a declaration that he was the father of a child born to a woman married to another man at the time of the child’s birth. In addressing an argument that the Paternity Act denies equal protection of the laws to males because it does not provide a way for them to establish their paternity, the court stated: “[A] father has not been barred by the Act from having his paternity established when he has overcome the presumption of legitimacy.” (101 Ill. App. 3d 107, 115.) Later, in the same opinion, the court stated: “* * * the Paternity Act was not a bar to a putative father asserting his claim of paternity.” (101 Ill. App. 3d 107, 116-17.) Other Illinois cases have allowed unwed fathers to establish their paternity. In Mitchell v. Henderson (1978), 65 Ill. App. 3d 363, 382 N.E.2d 650, the plaintiff filed a habeas corpus proceeding alleging that he was the father of a minor child and that it would be in the child’s best interest that he be granted custody. The appellate court held that the trial court’s finding that the plaintiff failed to prove paternity was not against the manifest weight of the evidence. In In re Ozment (1978), 61 Ill. App. 3d 1044, 378 N.E.2d 409, the Department of Children and Family Services filed a dependency petition in the interest of a minor, and one Heater filed a cross-petition alleging he was the father of the minor born during the marriage of the mother to a third person. The appellate court held, in part, that the trial court could reasonably believe that Heater was the natural father of the child. Furthermore, Illinois cases have recognized the rights of a biological father to seek custody of his illegitimate child. People ex rel. Slawek v. Covenant Children's Home (1972), 52 Ill. 2d 20, 284 N.E.2d 291; Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107,115; In re Custody of Myer (1981), 100 Ill. App. 3d 27, 32, 426 N.E.2d 333 (also holding that habeas corpus is no longer a proper vehicle to enforce the rights of a putative father who acknowledges an illegitimate child and that the language of sections 601 and 603 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 601, 603) is sufficiently broad to encompass a custody proceeding dehors a marriage relationship); People ex rel. Elmore v. Elmore (1977), 46 Ill. App. 3d 504, 506, 361 N.E.2d 615 (“In the absence of legislation establishing a procedure for resolving a dispute over custody of a child between parents who never have been married, society requires that the law shape an appropriate forum.”).

Defendants, nevertheless, argue that the plain language of the Paternity Act prevents the plaintiff from maintaining this action. Section four of that act provides, in pertinent part, as follows:

“§4. A proceeding to establish the paternity of a child born out of wedlock and to establish and enforce liability for its support, maintenance, education and welfare shall be instituted in the circuit court. Such action may be instituted only on the filing of a complaint in writing (a) by the mother of a child born out of wedlock, (b) by a woman who is pregnant with child, which, if born alive, may be born out of wedlock, or (c) by the Illinois Department of Public Aid in behalf of a minor child who is receiving financial aid under ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended. 9 9 9” (Ill. Rev. Stat. 1977, ch. 40, par. 1354.)

They rely upon Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189,194, 381 N.E.2d 222, which stated: “There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” We find the words of section 4 of the Paternity Act plain, but their reach and the limits of their application are not defined. Should section 4 be construed as setting forth procedures and requirements for the institution of actions under the Paternity Act or should it be construed as broadly fixing the rights of action, whether under the Paternity Act or not, of all persons in reference to children born out of wedlock? If it does the latter, as appellees contend, thus barring the instant action because it is brought by a putative father, constitutional problems abound. (Stanley v. Illinois; People ex rel. Slawek v. Covenant Childrens Home.) Where a statute is subject to two constructions, one of which may render it unconstitutional, courts are bound to adopt the construction which avoids the constitutional problem. (McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 114, 419 N.E.2d 608; Grove v. Board of Supervisors (1927), 246 Ill. App. 241, 245.) Accordingly, we adopt the narrower construction of section 4.

Moreover, if the statute is construed to prohibit an action by unwed fathers, then the statutory scheme would treat unmarried parents differently according to their sex. The United States Supreme Court has said that for gender-based classifications to withstand constitutional challenge under the equal protection clause, they “must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren (1976), 429 U.S. 190, 197, 50 L. Ed. 2d 397,407, 97 S. Ct. 451,457; see Caban v. Mohammed (1979), 441 U.S. 380, 391, 60 L. Ed. 2d 297, 306, 99 S. Ct. 1760, 1767.

The purpose of a statutory paternity proceeding is “to convert a father’s moral obligation to support his illegitimate children into a legal obligation.” (Cessna v. Montgomery (1976), 63 Ill. 2d 71, 90, 344 N.E.2d 447; People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 1105, 401 N.E.2d 1177.) It is hard to imagine how this purpose would be served by creating a gender-based classification. Rather, it would seem logical that this purpose would be more effectively promoted by allowing both unwed mothers and unwed fathers to maintain actions to establish paternity. We need not resolve this constitutional issue, however, because we are of the opinion that section 4 of the Paternity Act should be construed as relating only to actions instituted under that act and therefore constitutes no bar to the present suit.

The parties do not argue whether a declaratory judgment is an appropriate method for determining parentage and parental rights. We believe that it is for the reasons stated by the Wisconsin Supreme Court in Slawek v. Stroh (1974), 62 Wis. 2d 295,305-08, 215 N.W.2d 9,15-16; see Ill. Rev. Stat. 1979, eh. 110, par. 57.1.

For the reasons stated above, we conclude that the order dismissing the plaintiffs complaint must be reversed and the cause remanded to the circuit court for proceedings consistent with the views expressed herein.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ., concur.


text:
      In re APPLICATION OF COOK COUNTY TREASURER.—(BERNARD J. KORZEN, Collector-Appellee, v. MOTOROLA, INC., Objector-Appellant.)—In re APPLICATION OF COOK COUNTY TREASURER.—(BERNARD J. KORZEN, Collector-Appellee, v. THE HALLICRAFTERS CO., Objector-Appellant.)
    First District (3rd Division)
    Nos. 80-2438, 80-2439 cons.
    Opinion filed May 19,1982.

      Richard B. Finn, Erwin I. Katz, and Paula K. Jacobi, all of Chicago (Hoffman & Davis, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Thomas J. McNulty, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

This is an appeal by Motorola, Inc. and the Hallicrafters Co. (hereinafter sometimes referred to as “tax objectors”) from an order of the circuit court of Cook County denying the motions of the tax objectors for summary judgment and granting summary judgment in favor of the county collector of Cook County.

In 1972, each tax objector owned real property in Palatine Township, Cook County, Illinois. Palatine Township was a part of assessment district number one of Cook County, and 1972 was the year of quadrennial assessment for all real properties in that assessment district.

On August 24, 1972, the assessor of Cook County completed his quadrennial assessment for Palatine Township. On August 28, 1972, the board of appeals published a notice that it would accept valuation complaints for revision and correction of the 1972 real estate assessments for Palatine Township from September 1, 1972, through September 19, 1972. Both tax objectors filed timely complaints with the board of appeals, and, after hearings, final decisions were rendered by the board of appeals on October 20, 1972. Hallicrafters Co. obtained minor relief. Also, on October 20, 1972, the board of appeals completed its review of the 1972 real estate assessment for Palatine Township. On October 31, 1972, the county assessor published a list of quadrennial assessments for Palatine Township in the Palatine Herald and Rolling Meadows Herald. This was the first and only publication ever made by the county assessor of his 1972 quadrennial assessment of real property for Palatine Township. On December 26,1972, the assessor completed the quadrennial assessment for the first assessment district.

The record also shows that in two other townships in assessment district number one, Barrington Township and Rogers Park Township, as well as Palatine Township, publication did not occur until after the board of appeals completed its revision and returned the assessment books to the county assessor. In the seven other townships subject to quadrennial assessment, publication of the assessment list occurred prior to the review of the assessments by the board of appeals.

The issues presented for review are: (1) whether the 1972 quadrennial assessments of the tax objectors’ properties were invalid because the county assessor failed to comply with the publication requirements of section 104 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 585); (2) whether the publication of the list of assessments, after the hearings by the board of appeals were completed, deprived the tax objectors of their property without due process of law; and (3) whether the tax objectors were denied the equal protection of the laws because taxpayers in seven of the 10 townships which make up assessment district number one had the opportunity to compare their assessments with those of others in their township prior to hearings by the board of appeals, whereas taxpayers in Palatine Township had no such opportunity. Because we conclude that the county assessor failed to comply with the mandatory publication requirements of section 104, and consequently, that the 1972 quadrennial assessments of the tax objectors’ properties were invalid, we do not reach the constitutional questions.

Section 104 of the Revenue Act of 1939 provides in relevant part:

“In counties containing 2,000,000 or more inhabitants, * * * in each year of a quadrennial assessment of real property, for such county or assessment district * * * the county assessor shall publish a full and complete list of his assessment of real property as soon as such assessment is completed in the manner as is provided in this section. 099 Such publication shall contain a copy of the land value map for the township, if required by the Department.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 120, par. 585.

The two basic elements of this section relevant to this appeal are that the publication be a full and complete list of the county assessor’s assessment and that publication be made as soon as such assessment is completed. There can be little doubt that the publication provisions of section 104 are mandatory, as opposed to merely directory, and that strict compliance with them is required. A review of case law under section 103 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 584), a companion statute relating to publication in counties with less than two million inhabitants, compels this conclusion. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332; People v. Jennings (1954), 3 Ill. 2d 125, 119 N.E.2d 781.

In Jennings, a list of personal property assessments was not published in a newspaper, as required by section 103. Our supreme court held that the requirement of publication of the assessment list was mandatory, and that failure to comply with the requirement rendered the tax imposed invalid. In Andrews, the supervisor of assessments failed to publish increases in real estate assessments made in 1972, a nonquadrennial year, by July 10, 1972, as required by statute, but did publish later. The court held that the publication requirement in section 103 is mandatory, and that the tax resulting from the increase in assessments was invalid because of the failure to make timely publication.

The Andrews court briefly summarized the distinction between mandatory and directory statutes:

“[W]hen a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends on its purpose. If the provision merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty, it is directory, absent negative language denying the performance after the specified time. If, however, the conduct is prescribed in order to safeguard someone’s rights, which may be injuriously affected by failure to act within the specified time, the statute is mandatory. . [Citations.]” 71 Ill. 2d 13, 21.

The publication requirements of section 104 are intended not only to give notice of the assessment to the taxpayer, but also “to give the taxpayer an opportunity to ascertain whether the assessment is excessive or disproportionate.” (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 22.) “ ‘[I]n order for a taxpayer to determine if his assessment is disproportionate or excessive, he must be able to compare his assessment with other taxpayers.’ ” (Andrews v. Foxworthy (1978), 71 Ill. 2d 13,22; People ex rel. Republican-Reporter Corp. v. Holmes (1968), 98 Ill. App. 2d 11,17, 239 N.E.2d 682.) In short, publication is not designed for the guidance of public officers, but for the benefit and protection of taxpayers. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 22.) Accordingly, we conclude that the publication requirements of section 104 are mandatory, and that they require strict and timely compliance.

The issue, therefore, becomes whether there was strict and timely compliance with section 104. Did the publication of the assessor’s list of quadrennial assessments on October 31, 1972, comply with the statutory requirement that the publication be done “as soon as such assessment is completed?” And this question in turn depends upon whether the assessment referred to is of the township or of the assessment district. Here the date of publication was more than two months after the assessment of Palatine Township was completed, but it was almost two months before the assessment for all of assessment district number one was completed. The trial court, citing various amendments that have been made to section 104, concluded that in light of its legislative history, section 104 directs the county assessor to publish as soon as the quadrennial assessment of the assessment district is completed. As a result, the trial court concluded that the assessor’s duty to publish did not arise until December 26, 1972, when the assessment of district number one was completed, and that the publication of the assessment list for Palatine Township on October 31, 1972, did not violate his statutory duty.

Legislative history of section 104 lends this theory some credence. In 1941, section 104 directed:

9 9 the county assessor shall publish a full and complete list, by townships, if the county be so organized, 9 9 9 as soon as such assessment has been equalized, revised or affirmed by the board of appeals. 9 9 (Emphasis added.) (Ill. Rev. Stat. 1941, ch. 120, par. 585.)

Section 104 as it then existed, required that publication be on a township-by-township basis and after the board of appeals had completed its work as to each township. However, the trial court observed that in 1961, section 104 was amended, removing both the requirement that publication be made after the board of appeals had completed its work and the reference to publication by townships. (Ill. Rev. Stat. 1961, ch. 120, par. 585.) The trial court stated that it would not ignore the 1961 amendment, and therefore it construed section 104 as authorizing publication by assessment district.

The tax objectors argue that section 104 contemplates publication by township. They argue that, historically, publication of assessments has been made township-by-township. They also note that, even after the 1961 amendment, section 104 retained the following language: “Such publication shall contain a copy of the land value map for the township, if required by the Department.” (Emphasis added.) (Ill. Rev. Stat. 1961, ch. 120, par. 585.) Thus, they argue that the statute contemplates publication on a township-by-township basis, despite the 1961 amendment. We note here that the second paragraph of section 104 contemplates publication of a township’s assessment list in a township newspaper.

We do not resolve the issue of whether publication has to be done on a township-by-township basis or whether it can be done on an assessment district basis, because we conclude that under either method, the publication in the instant case did not comply with the mandatory provisions of section 104 that the publication be a full and complete list of the assessment and that the publication be made as soon as the assessment is completed. If publication has to be done on a township-by-township basis, then publication occurred more than two months after the county assessor completed his assessment for Palatine Township and after the board of appeals had completed its review of the 1972 real estate assessment for Palatine Township. Under these circumstances, if publication is to be made by township, we cannot hold that there was strict and timely compliance with the mandatory duty to publish.

If publication is to follow soon after the completion of assessment of the assessment district, then the October publication of Palatine Township assessments almost two months before the assessments for assessment district number one were completed, was perhaps timely. However, if publication is to be by assessment district, then certainly the county assessor failed to publish a full and complete list of his assessments for assessment district number one. Rather, in this case the county assessor made a series of publications over a three-month period, and each publication contained only the assessment list for a single township.

The county collector’s brief suggests the argument that it would be contrary to public policy and against the best interests of the general public to allow the omission of publication to defeat the tax. This argument is satisfactorily resolved by Jennings, where our supreme court stated: “This court can only ascertain and apply the intention expressed by [the General Assembly].” 3 Ill. 2d 125, 130.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded to that court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ„ concur.

       We note that the trial court in its order observed that any remedy the tax objectors might have may be illusory by reason of application of sections 220 and 222 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, pars. 701,703), concerning the taxation of omitted or defectively described or assessed property, or by reason of subsequent legislative action validating the assessment despite lack of timely publication. (See Ill. Rev. Stat. 1979, ch. 120, par. 799.1; Schlenz v. Castle (1981), 84 Ill. 2d 196,417 N.E.2d 1336, appeal dismissed (1981), _U.S--, 70 L. Ed. 2d 73,102 S. Ct. 76; People v. Holmstrom (1956), 8 Ill. 2d 401,134 N.E.2d 246, appeal dismissed (1956), 352 U.S. 938,1 L. Ed. 2d 235, 77 S. Ct. 262.) Since the parties’ briefs do not address these issues, we do not address them here.


author: JUSTICE McNAMARA

text:
    GLADYS PEREZ, d/b/a Mexico Driving School, et al., Petitioners-Appellants, v. JIM EDGAR, Secretary of State, Respondent-Appellee.
    First District (3rd Division)
    No. 81-1053
    Opinion filed May 19,1982.

      Edward M. Burke, of Klafter, Burke & Nathan, of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (William E. Dicks, Jr., Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Gladys Perez d/b/a Mexico Driving School and Pedro Vignettes, sought judicial review of the revocation by the Secretary of State of Perez’ commercial driving school license and Vignettes’ instructor’s license. Revocation was based on a finding by the State, after a hearing, that plaintiffs violated an Illinois statute and a Secretary of State rule by permitting fraud and engaging in fraudulent practices, and by advertising a guarantee and contracting to guarantee a driver’s license upon completion of the course. The trial court upheld the revocations. On appeal, plaintiffs contend that the hearing officer applied a lesser burden of proof than that required; that the charges were not proved by clear and convincing evidence; that the hearing officer admitted evidence acquired in violation of plaintiffs’ constitutional rights; that the evidence failed to establish a violation of rule or statute; that it was error to impute to Perez the alleged fraud of Vignettes; and that the sanction of revocation was excessively harsh.

Vignettes and Perez were husband and wife. They were the operators of the driving school. Perez was listed as the owner of the school license, and Vignettes was an instructor and manager of the school.

Maurico Acosta, an agent for the United States Immigration and Naturalization Service, testified that on November 19,1980, he visited the driving school and, pretending to have trouble with English, asked Vignettes if he could purchase a driver’s license without taking the required examination. Acosta was acting in cooperation with Roberta Baskin, a reporter who was conducting a television investigation into the practices of Latino driving schools in the Chicago area. Vignettes stated that the cost of the drivers’ training course was $75 or $85 but that if instruction proved impossible he could obtain a license for $225.

Vignettes then took Acosta to the main school where Perez attempted in vain to teach Acosta to memorize the license examination. Acosta told plaintiffs that he preferred to get his license in the way he had discussed with Vignettes. They both assured him that if he returned on Friday he could obtain his license. When Acosta returned, Perez assured him that he would have no trouble getting his license that afternoon if he followed Vignettes’ instruction. Perez admittedly did not believe Acosta was qualified to pass the examination.

That afternoon Vignettes took Acosta and other applicants to a State drivers license facility. He told Acosta to wait while he went in and “got things taken care of.” After spending approximately 10 minutes in an area restricted to State employees, Vignettes returned and told Acosta to have his identification ready. Acosta had previously informed Vignettes that his identification (green card) was counterfeit. Vignettes directed Acosta to an examiner who failed to request any identification despite a requirement that each applicant produce three forms of identification. The examiner merely wrote “green card” on the application and asked Acosta to sign it and take it to the cashier.

Acosta took the eye examination with his glasses on and passed it although he deliberately missed two letters. Contrary to established procedure he was never requested to read a line of the chart without his glasses.

The written examination consisted of 35 questions, 28 of which had to be answered correctly in order to pass. Acosta answered only 10 questions, five or six of which he answered incorrectly. The examiner filled in the uncompleted portion of Acosta’s examination and marked it “passed.”

Before taking the road test, Acosta entered an automobile with Vignettes and paid Vignettes $225. When Acosta expressed concern as to whether he would pass the test Vignettes told him not to worry “because it was already taken care of.” For the first time Vignettes asked Acosta whether he could drive. Before leaving, Vignettes told Acosta that if he knew anyone else who wanted to obtain a license in this manner he should notify Vignettes.

Acosta then took the road test. A road test consists of a vehicle inspection and the actual driving test. Acosta testified that the vehicle was never inspected. During the driving test Acosta made several mistakes, two of which should have resulted in automatic failure. He drove the vehicle over a curb and he released the steering wheel with both hands forcing the examiner to take control of the vehicle. Although Acosta was not required to park the vehicle, he received grades for proper parking. In spite of these mistakes and irregularities, Acosta passed the road test and was given his driver’s license.

Following receipt of his license, Acosta joined Baskin in a TV van where he gave her a statement concerning what had just occurred. Gary Rennick, another Federal agent who was aiding Baskin in her investigation, was also present. Acosta reported the incident to his superiors the following week.

Plaintiffs initially contend that the hearing officer erred in failing to exclude the testimony of Acosta, Rennick and Baskin because they violated State and Federal statutes and infringed upon plaintiffs’ fourth amendment rights when they conducted the investigation. Specifically, plaintiffs maintain that Acosta and Rennick conspired with Baskin to violate 18 U.S.C. sec. 1905 (1976), and that Acosta did violate the act when he divulged the fruits of his investigation to Baskin; that Baskin violated section 14 of “An Act to provide for Licensing and Regulating Detectives * * *” (Ill. Rev. Stat. 1979, ch. 111, par. 2626) when she took part in the investigation; and that Acosta had no legitimate right to enter plaintiffs’ premises to conduct the investigation. Plaintiffs urge that the exclusionary rule should have been invoked with regard to all evidence resulting from these alleged violations.

The basic purpose of the exclusionary rule is to safeguard an individual’s constitutional right to a reasonable expectation of privacy by excluding evidence seized by the government in violation of that right. Ordinarily the rule applies only to criminal trials. Relying on dicta in Angelini v. United States (N.D. Ill. 1970), 322 F. Supp. 698, plaintiffs argue that Illinois has extended the right to license revocations. We need not decide that issue, however, since plaintiffs failed to show any constitutional violations which would warrant the imposition of the rule even if this were a criminal case.

Section 1905 (18 U.S.C. sec. 1905 (1976)) provides sanctions for disclosure by a government employee of certain information obtained in the course of his employment. Since it is concerned only with the disclosure of information and not with its seizure, violation of section 1905 would not trigger application of the exclusionary rule.

Plaintiffs’ position that violation of an Illinois statute (Ill. Rev. Stat. 1979, ch. 111, par. 2626) by Baskin warranted invocation of the exclusionary rule is similarly inaccurate. Sections 1 and 14 of “An Act to provide for Licensing and Regulating Detectives ” ” *” merely define the private detective business and provide sanctions for one who engages in such business without a certificate of registration. (Ill. Rev. Stat. 1979, ch. 111, pars. 2601, 2626.) Its alleged violation by Baskin, a private person, in this case is totally unrelated to the fourth amendment guarantee against unwarranted governmental intrusion on an individual’s reasonable expectation of privacy. (United States v. Newton (7th Cir. 1975), 510 F.2d 1149.) Furthermore, plaintiffs’ position that Baskin, a reporter, was engaged in the private detective business and needed State certification in order to conduct the investigation for the purpose of writing about it, not only raises serious first amendment questions but has no support in the law.

We likewise reject plaintiffs’ contention that Acosta invaded their fourth amendment right to privacy when he entered the premises of plaintiffs’ driving school without probable cause to believe that they had committed any Federal offense. The fourth amendment protection extends only to privacy expectations which are reasonable. (Hoffa v. United States (1966), 385 U.S. 293,17 L. Ed. 2d 374, 87 S. Ct. 408.) Since plaintiffs obviously consented to Acosta’s presence on the premises, it was not reasonable for them to expect that he would keep secret what he learned. Nor does the fourth amendment protect plaintiffs’ misplaced belief that Acosta, with whom they voluntarily conversed, would not reveal that conversation. Hoffa v. United States.

Plaintiffs next contend that the hearing officer erred in requiring that the charges be proved by a preponderance of the evidence. Relying on Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303, and Wilkey v. Illinois Racing Board (1978), 65 Ill. App. 3d 534, 381 N.E.2d 1380, plaintiffs urge that where, as here, the proceedings are civil in nature but criminal conduct is charged, a more exacting standard of proof is required. In Drezner the court held that, while the charge need only be proved by a preponderance of the evidence, “the evidence of guilt should be clear and convincing.” We find, however, that whether or not the additional Drezner test applies in the present case, the evidence presented at the hearing.satisfied both standards.

Plaintiffs argue that the evidence failed to show a violation of either an Illinois statute or of the rules and regulations of the Secretary of State. Section 6 — 420 of the Driver Licensing Law (Ill. Rev. Stat. 1979, ch. 95*2, par. 6 — 420) provides in pertinent part:

“The Secretary may cancel, suspend or revoke, or refuse to renew any driver training school license or any driver training instructor license:
(3) Whenever the licensee permits fraud or engages in fraudulent practices either with reference to a student or the Secretary, or induces or countenances fraud or fraudulent practices on the part of any applicant for a drivers license or permit;
(8) Whenever a driver training school advertises that a drivers license is guaranteed upon completion of the course of instruction.”

Although there is no general rule in Illinois stating what facts constitute fraud (Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 344 N.E.2d 805), it generally encompasses anything calculated to deceive, whether it be a general act or a combination of circumstances. Hale v. Hale (1978), 57 Ill. App. 3d 730, 373 N.E.2d 431.

The hearing officer found that Vignettes permitted fraud and engaged in fraudulent practices in violation of section 6 — 420(3) when he told Acosta that he could obtain a driver’s license for $225 without passing the examination and in aiding Acosta to procure one; by knowingly permitting Acosta to use a counterfeit alien registration card in connection with his application; and by inducing employees of the Secretary of State to violate regulations governing the completion of a driver’s license application. We conclude that these findings are not only in accord with the manifest weight of the evidence, but they are also supported by evidence which is clear and convincing.

Plaintiffs argue that the hearing officer erred in imputing to Perez the fraudulent conduct of Vignettes. Although Perez denies any knowledge of what transpired at the driving facility, the evidence was sufficiently clear and convincing to support the finding that Perez was not only aware that Vignettes sought to obtain a license for Acosta fraudulently but that she authorized his actions and, as owner of the school, planned to benefit therefrom. (S & F Corp. v. Bilandic (1978), 62 Ill. App. 3d 193,378 N.E.2d 1137.) This finding was based on the hearing officer’s acceptance of Acosta’s testimony rather than that of Perez. It was the province of the hearing officer to determine the credibility of the witnesses, and we find that his determination was not against the manifest weight of the evidence. (Crowell v. Police Board (1975), 32 Ill. App. 3d 552,336 N.E.2d 573.) Furthermore, we find clear and convincing support for the hearing officer’s finding that Perez actively participated in Vignettes’ fraudulent practices when she told Acosta that he would have no trouble obtaining a license if he followed Vignettes’ instruction even though she believed Acosta to be unqualified.

Since violation of section 6 — 420(3) was sufficient to warrant revocation of plaintiffs’ license, we need not consider whether the evidence demonstrated a violation of section 6 — 420(8).

Plaintiffs further contend that the evidence failed to show a violation by plaintiff of Rule 6 — 408 C.3 of the Rules of the Secretary of State. The rule prohibits a driver training school from including “any statement in any of its contracts or advertising to the effect that an Illinois driver’s license is guaranteed ” * (Emphasis added.)

We find no merit in plaintiffs’ position that violation of this rule is dependent upon its use of the word “guarantee.” Vignettes’ statement to Acosta that he could obtain a license for $225 without passing the test was a sufficient guarantee to bring his conduct within the prohibitions of the rule. Similarly, Perez’ assurance to Acosta that he would obtain his license that day if he followed Vignettes’ instruction was in essence a guarantee.

We likewise reject plaintiffs’ argument that, since the contract or agreement between the parties violated the rule and statute, it was illegal and void and therefore not a “contract” for the purposes of this rule. Adoption of plaintiffs’ strained interpretation of this provision would have the ludicrous effect of making violation of the provision impossible. Furthermore, it would violate a fundamental rule of statutory construction which requires courts to construe a statute so as to accord significance and effect, if possible, to every sentence, phrase and word without destroying the sense and effect of the law. (People v. Warren (1977), 69 Ill. 2d 620, 373 N.E.2d 10.) We find clear and convincing evidence in the present case that an oral contract existed between plaintiffs and Acosta sufficient to violate Rule 6 — 408 C.3. Consequently, we need not address plaintiffs’ other argument that they did not “advertise” a guarantee.

We finally consider the contention that the sanction imposed against Perez was excessively harsh. The Secretary of State is vested with discretion in selecting the appropriate sanction for violation of the statute and rule in question. Courts will not substitute their judgment for that of the Secretary of State absent a showing that he abused his discretion by acting arbitrarily and capriciously. (Zions v. Police Board (1978), 67 Ill. App. 3d 680, 385 N.E.2d 51.) In light of the overwhelming evidence that Vignettes engaged in fraudulent practices and that Perez was an active participant in that fraud, we find that the Secretary did not abuse his discretion in revoking Perez’ license. Her conduct was not only illegal but also constituted a threat to public safety.

For the foregoing reasons, the judgment of the circuit court of Cook County upholding the decision of the Secretary of State is affirmed.

Judgment affirmed.

WHITE, P. J., and RIZZI, J., concur.