The General Assembly passed a statute in 1937 applying to municipal corporations and taxing bodies (except the State of Illinois) containing more than 500,000 inhabitants, whereby the validity of the annual tax levy ordinances of such taxing bodies might be determined before the taxes are extended, and making the judgments therein conclusive in any subsequent proceeding based upon said tax levy. (Laws of 1937, p. 1019; Ill. Rev. Stat. 1937, chap. 120, par. 110.1 et seq.) The two consolidated cases at bar were *Page 382 brought in the circuit court by taxpayers of Cook county, seeking to enjoin the county and its officers from making any expenditures under a contract entered into by the county for the publication of notices provided by the act. Motions to strike the complaints were sustained, and plaintiffs have appealed to this court.
The constitutionality of this statute is assailed by appellants on several grounds.
The principal object of the statute applicable to all municipal and quasi municipal corporations and taxing bodies within its limitations is to confirm the levy of annual taxes before extension, and for such purposes the county courts are given jurisdiction including all powers of courts of equity. Each of the corporations or taxing bodies affected shall within sixty days after passage of its annual appropriation ordinance file with the county clerk a certified copy of its annual tax levy ordinance; within ten days after such latter ordinance is filed, the county clerk shall prepare and file in the county court a petition, to which a copy of the tax levy ordinance shall be attached and made a part, for the confirmation of such tax levy. The petition shall likewise set forth the percentage of loss and cost of collection which the county clerk proposes to add, where no levies for that purpose have been made, and where such addition is permitted by law. And such petition shall designate a return day, which shall be not less than twenty-five nor more than thirty days from the date of filing. Within five days after the petition is filed the county clerk shall publish a notice in a secular newspaper of general circulation published within the municipal corporation, notifying all taxpayers concerned, and the corporation levying the tax, of the filing of the petition to confirm the levy, the docket number of the cause, the return day fixed, and advising all persons owning or interested in real or personal property which may be affected, that they may file objections in writing on or before the return day. On or before the return *Page 383 day, the taxpayer may file objections in writing, specifying in detail any grounds of illegality against the levy, or the amount proposed to be added by the clerk as percentage of loss and cost of collection, and also, at this time, raise the question as to whether any levy is within or without the tax rate limit.
The act also provides for a hearing on the return day, or on such date as may be fixed by the court. Following the making of proof of notice and the filing of the levy, the case shall be tried in a summary way without further pleadings. After all objections have been heard the court shall enter an order determining which levies of taxes are legal, and which illegal, and directing the county clerk to use the tax levies found to be valid, together with the amount the clerk shall add as loss and cost of collection, in computing the tax rates for the year. And where an issue is raised considering the maximum tax rate the order shall declare, also, whether the levy in question is within or without the tax rate limit.
The act also provides for an appeal to the Supreme Court. Section 9 provides: "The order confirming or refusing to confirm tax levies entered pursuant to the provisions of this act shall be conclusive as to the validity or invalidity of any and all such tax levies, and no tax levy thereby confirmed or in the process of confirmation shall thereafter be questioned in any other suit, action or proceeding whatsoever, or by objections to the county collector's application for judgment and order of sale against real estate for delinquent taxes."
Only six taxing bodies in the State contain 500,000 or more inhabitants; the county of Cook, city of Chicago, Board of Education of the city of Chicago, Chicago Park District, Sanitary District of Chicago, and the Forest Preserve District of Cook county.
The time for passing the annual appropriation ordinance and annual tax levy is not the same in all of these six bodies, *Page 384 nor is the territory embraced within the six taxing bodies identical. The Chicago board of education must adopt its annual appropriation ordinance within three months after January 1, and since, under the new act, it is required to file a copy of the levy for school taxes within sixty days after its adoption, it may not be filed until June 1. If the clerk's petition for confirmation is filed within ten days, and thirty days' notice is given of the hearing, the latest date fixed for the return day would be approximately July 10. On the other hand, if the board of education should immediately after January 1 adopt its appropriation ordinance, and, substantially, concurrently adopt its tax levy ordinance and immediately file it with the county clerk, the return date could be as early as February 10. Likewise, if the municipality does not see fit to perform its tax-raising functions on the first or last day possible the hearing might legally be expected any time between February 10 and July 10, a period covering five-months' time.
The law requires the Chicago Park District to adopt its annual appropriation ordinance before the beginning of the fiscal year, viz., January 1; the Chicago Sanitary District, within thirty days of January 1; the city of Chicago and the Forest Preserve District of Cook County, within the first ninety days of their fiscal year, commencing January 1, and the county of Cook, within the first quarter of its fiscal year, which begins on the first Monday of December.
It is thus apparent from the provisions of law applying to the six municipalities, the date of making the appropriation may range from the first week in December until the end of March, and the return day upon the county clerk's petition for each taxing body may be as early as April 10 in some cases, and as late as July 10 in others; that the possibility and probability is, that such return dates and the notices for fixing such return dates may be interspersed over a period running from the end of December to the early part of July, as the county clerk is required to file a *Page 385 separate petition, and give a separate notice for the validation of the taxes of each municipality or taxing body.
There is no positive or fixed date provided by statute for any of the acts necessary to comply with the provisions of this law, except the earliest date upon which a municipality may adopt its appropriation ordinance. From that stage the date of giving notice or the date of hearing depends upon the time required by each individual municipality to prepare and adopt its appropriation ordinance, and to prepare, adopt and certify its tax lexy ordinance, and, even after this is done, there is a further uncertainty as to the time a hearing may be expected, inasmuch as the clerk may take as little less than ten days as may be required to file his petition, and can make the time of the notice ranging from twenty-five to thirty days. This statute does not operate independently of the general Revenue act but as a part of it, in the municipalities affected. The extension and collection of the taxes are governed by the laws now in force; both the general Revenue act and the law under consideration must be read together to determine its complete scope and effect.
Under the general Revenue act a judgment cannot be rendered for the sale of real estate unless the notice required by statute (Ill. Rev. Stat. 1937, chap. 120, par. 170) be complied with. This notice requires a description of the property, the name of the owner, and the amount unpaid, and the application for judgment upon such notice is made to a definite term of the county court, the time of which is definitely fixed by statute. Paragraph 171 of chapter 120, supra, provides the collector may charge real estate with unpaid personal property tax, but that can be done only by giving the notice required by that section. Paragraph 215 of the same chapter authorizes a collector to obtain a personal judgment for the non-payment of personal or real estate taxes in an action of debt where service of the defendant must, of course, be made as provided by the Civil *Page 386 Practice act. Paragraph 144 of the same chapter requires a collector to distress and sell any personal property of the taxpayer for unpaid personal property tax. Section 3 of the Exemptions act (Ill. Rev. Stat. 1937, chap. 52, par. 3) provides that no property shall be exempt from sale for non-payment of taxes or assessments.
In all these situations, as a defense to the sale, the invalidity of the tax could be urged (Neal Institute Co. v.Stuckart, 281 Ill. 526; Elmwood Cemetery Co. v. People, 204 id. 468;) and, in all cases where a judgment in personam is sought, the defendant is entitled to personal service of process and the right to make the defense of invalidity of the levy. The present act, within the municipalities affected, as to all questions concerning the validity of a levy, amends the general law but otherwise does not disturb its operations or requirements. The necessary effect is the substitution of a notice, by publication only, for the notices provided in the Revenue act, in matters affecting the validity of tax levies, and, where that question is the issue, it cannot be heard again on objection to sale, as by virtue of section 9, above quoted, it becomes a binding adjudication of such question. The practical operation is to permit judgment of sale, forfeiture or distress upon publication alone, as the notices which will be given preliminary to judgment of sale will result only in advising the taxpayer that there is already a judgment of record.
Section 2 of article 2 of the constitution provides that no one shall be deprived of property without due process of law. Due process of law requires notice to the defendant and an opportunity to be heard in the protection and enforcement of his rights before a court of competent jurisdiction in an orderly proceeding adapted to the nature of the case. (People v. Miller,339 Ill. 573; People v. Lavendowski, 329 id. 223.) The latter case was approved in Hoehamer v. Village of Elmwood Park,361 Ill. 422, with the qualification that less notice is required in cases where *Page 387 no judgment in personam is to be rendered. Assuming, but not deciding, the court designated in the act is legally vested with the power to decide upon the validity of the various tax levies, in the manner prescribed, a tribunal is provided where a hearing may be had.
The vital question presented, therefore, is whether the notice given by the county clerk, in view of the provisions of the act, and their necessary effect, considered in conjunction with other parts of the general Revenue statutes of Illinois, is sufficient to comply with the constitutional requirement of notice.
In People v. Niesman, 356 Ill. 322, we said: "The guaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law, — a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. * * * An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law." In Cloyd v. Trotter, 118 Ill. 391, it was held that service out of the State by copy of the bill and notice in a chancery suit, so far as property in this State was sought to be affected, would give the court jurisdiction to decree concerning it, but not to render a personal decree for the recovery of money or costs. Where the defendant is a non-resident of Illinois and the proceeding is in personam, the publication of notice and the mailing of a copy to the defendants without the State will not give a court jurisdiction over the person of the defendant, (Bickerdike v. Allen, 157 Ill. 95,) and this is true even though the non-resident may receive the notice. In theBickerdike case we said: "If the statute provided for bringing *Page 388 in a resident of the State by publication of the notice only, without the mailing of any notice to him, the same objection might lie as in case of a non-resident. A judgment in personam in the court of a State against one of its citizens who is not served with process, but is served by publication only, cannot be valid, except in cases coming within the exceptions already indicated." These exceptions were cases involving civil status, dissolution of marriage and similar situations.
The Bickerdike case was followed in Nelson v. Chicago,Burlington and Quincy Railroad Co. 225 Ill. 197, holding that a judgment could not be obtained against a non-resident by substituted service of process, nor against a resident by publication alone, and laid down the rule as follows: "While the authorities are not in entire harmony upon the subject, the Illinois cases and the greater weight of authority clearly establish, we think, the proposition that a personal judgment in an action at law may be rendered against a defendant residing in and who is in the State where the suit or proceeding is pending, who has been notified of the pendency of the suit by constructive service of process, where it appears actual service of process could not be had upon the defendant, if the constructive service provided for was required to be had in such manner that the reasonable probabilities were that the defendant would receive notice of the pending action or proceeding before judgment or decree was rendered against him."
When it comes to the consideration of the effect of the notice upon real estate alone, it must be borne in mind that it has uniformly been held that a judgment in rem does not entitle the holder to a judgment in personam against the owner of the property without personal service of process. (People v.Cincinnati, Lafayette and Chicago Railroad Co. 270 Ill. 516.) Delinquent personal property tax is, however, a direct personal liability. People v. Northwestern Mutual Life Ins. Co. 361 Ill. 248. *Page 389
A personal judgment cannot be obtained by publication process against a non-resident, even though the proceeding is brought inrem or quasi in rem. (Austin v. Royal League, 316 Ill. 188;Northern Trust Co. v. Sanford, 308 id. 381.) And in McCormick v.Blaine, 345 Ill. 461, it is held that the court cannot take jurisdiction by constructive service to determine incompetency or to obtain a judgment in personam against a resident beyond the limits of the State. No case has been called to our attention which authorizes a judgment in personam, upon the publication of notice alone. The cases seem fairly to establish that a personal judgment cannot be obtained against any non-resident of the State by substituted service or against any resident outside the State; that a judgment in rem cannot be made the basis of a judgment inpersonam, at least without giving the notice required for judgments in personam; and that a judgment in personam may be obtained against a resident of the State by constructive service, if it appears actual service of process cannot be had upon him, and notice is given in such manner the reasonable probabilities are the defendant will receive notice of the pending action or proceeding before a judgment or decree is rendered against him.
Appellees concede that the statute under consideration does not give notice in the sense the taxpayer knows that at a given time and place a proceeding will occur, in which the validity of a tax levy will be determined, but take the position that by prescribing notice by publication at the various times required to comply with the statute, a notice equivalent to that in board of review and equalization proceedings is given, which would satisfy due process of law.
Appellees urge these cases have added, in addition to the usual elements constituting due process of law, a third element, viz., that the notice and opportunity to be heard shall be adapted to the nature of the case, and, therefore, the act, by providing notice shall be published in a newspaper *Page 390 at the times made necessary by statute, measured by the time of filing of the several levies, is sufficient. An analysis of the cases cited fails to support this broad claim. Sherman v. People,210 Ill. 552, involved a contempt proceeding against judges and clerks of election, as statutory officers of the court, where the question was not discussed. Rabbitt v. Webber Co. 297 Ill. 491, an attachment proceeding, defines due process of law as in People v. Miller, supra. People v. Lavendowski, supra, involved the Search Warrants statute, and the words in the opinion, "in an orderly proceeding adapted to the nature of the case," referred to the tribunal in which the proceeding had taken place, as notice was not there the issue. The case of Gage v. City ofChicago, 225 Ill. 218, passed upon the legality of the act authorizing local improvements, and we there said: "The legislature may provide for constructive notice appropriate to the nature of the case, which will afford to the property owner the opportunity to contest the validity of the assessment." The statute involved in that case provided: (a) Notice of a public hearing to be mailed to the taxpayer; (b) notice of the adoption of the local improvement ordinance to be mailed to the taxpayer and to the occupant of the property; (c) notice of the pendency of the proceeding in court for confirmation of the assessment to be mailed to the taxpayer; (d) public notice of the proceeding to be published in a newspaper. These several provisions for notice were held adequate to afford the property owner an opportunity to contest the improvement and authorize a judgment in rem. In these decisions we find no departure from the constitutional requirements of notice and hearing, nor are they sufficient to justify the broad assertion that the character of the notice may be made to depend entirely upon the number of individuals entitled to notice or the nature of the proceeding itself.
A number of cases are cited in which it is held a property owner is bound to take notice of the time fixed by *Page 391 statute for the board of review to hold its meetings, and failure to appear and object estops the property owner from obtaining changes in valuations by court proceedings. These same cases uniformly hold, however, that the board of review cannot make a new assessment against a taxpayer without giving him notice. Such cases involved the equalization of assessments already made in conformity with the constitutional provision requiring uniformity of taxation, which provides for the adjustment of values between different taxing districts, and only affects the sum total of revenue to be derived from each district which may be done without notice to the taxpayer.
The cases cited by appellees may be summarized as holding: (a) That the tribunal to hear a cause need not be a court; (b) for such purpose the notice to the taxpayer of time of hearing may be a date fixed by a statute; (c) if some new burden is to be added to the taxpayer actual notice must be given.
At some stage, before a tax becomes irrevocably fixed as a charge on his property, the taxpayer must have an opportunity, of which he shall have notice, to be heard as to the validity and extent of the tax. This opportunity is given him on the application of the collector for judgment for taxes charged against his property. People v. Arnold Bros. 282 Ill. 305.
The act under consideration provides only for the publication of one notice in a secular newspaper of general circulation. Under this act, and upon this notice, real estate may be sold, personal judgments obtained for the amount of unpaid real estate or personal property taxes, where the only ground of objection is the illegality of the levy. It is not a case where objections may be made at a definite time from a date fixed by statute, nor does it fix a day, by statute, when objections must be on file or a default taken. No publication is made of the amount of personal property assessment nor any descriptions of real estate such as now *Page 392 are required to predicate a judgment in personam in case of non-payment. If the statute fixed the first day of a term of court, or if levies were required to be on file with the clerk by a fixed date, the taxpayer would have some definite information from which the date of hearing could be ascertained.
This situation is not confined to the residents of the municipalities alone. For unpaid taxes in one of these taxing bodies suit could be brought against the resident of another county than Cook county, and presentation of the requisite proof would entitle the municipality to a personal judgment. Conceivably, such a suit could be brought in another State to recover from a non-resident unpaid taxes or assessments on property owned by him in the territory covered by the act. This state of affairs is also presented by the case of a resident of Illinois, outside of Cook county, holding real estate in the county of his residence and also in the city of Chicago, upon failure to pay taxes, being entitled to make a defense of illegality of the levy in one action and in a like suit brought in the city of Chicago, estopped from making such a defense, and this may also apply to property owners in Cook county, where they own property both within and without the taxing bodies to which the act applies.
Due process of law is one of the fundamental rights guaranteed each citizen by the constitution. It demands notice and hearing. The notice afforded should be such as is likely to be received and plain to understand. The publication of one notice, only, in a locality which may not contain all the interested owners, especially when no definite time is fixed by statute for its appearance, is insufficient to authorize the proceedings contemplated by the act.
It is manifest that the statute in question does not provide due process of law in that no notice is given to the property owner of the proceeding to validate the taxes *Page 393 in the county court conformable to the mandate of the constitution.
In view of the foregoing it is unnecessary to pass upon the other points discussed in the briefs.
The decree of the circuit court of Cook county is reversed and the cause remanded, with directions to overrule the motions to strike.
Reversed and remanded, with directions.