I concur in the reasoning and conclusions of the foregoing opinion. It is, of course, unnecessary to the support of the conclusion of the court that other points be passed upon, but I am also of the opinion that because of the importance and novelty of other legal questions involved, they merit consideration in this proceeding.
The point is made that the act is special or local, imposing special burdens or granting special privileges to certain taxpayers in the six districts affected, thus contravening the State constitution. The taxpayers in those districts may be required to appear at six different times in six different proceedings in order to object to tax levies. This is so because, as shown in the opinion of the court, the periods during which the levies may be made differ in those districts, and, as a consequence, the dates of hearing must be different.
It is also seen from this act that many taxpayers in Cook county outside of the city of Chicago will be required to follow a different procedure in objecting to the taxes from that followed by those living within the city or outside the county. Suppose a taxpayer in one of the three hundred other taxing districts of the county, outside some of the six affected, desires to object to city and park taxes levied on his property. His property is within the county and within the forest preserve district. He, therefore, is required to appear in two proceedings under this act and, also, *Page 394 in a further proceeding for judgment for delinquent city and park taxes. Other like illustrations suggest themselves. These are burdens placed upon such taxpayer different from those imposed upon others within the county, or others residing outside the county.
Classification of the objects of legislation is not required to be scientific or consistent if it is reasonably adapted to secure the purpose for which it was intended and is not purely arbitrary. (People v. Callicott, 322 Ill. 390.) But an act which places upon one citizen a burden or confers on him a privilege not placed or conferred on all others in his circumstances is invalid. People v. Jarecki, 363 Ill. 180.
There is also a want of due process in the case of the numerous taxpayers who own no real estate, but who acquire personal property before the first day of April, but after any levy has been confirmed. Such ownership will often be acquired after the levy and continue through the first day of April and may be of personal property acquired from citizens of other States. Neither the former owners nor the citizens of Illinois, who are required to pay a tax on the personal property which they own on the first day of April, would be parties to the action prescribed by the statute. There is no possible representation in that action and yet the owner of personal property on the first day of April, if sued for the tax in an action of debt, is barred by this statute from asserting either that the rate of the levy exceeds the constitutional limit or the statutory limit. This will affect all the citizens in the taxing districts which come within the act, who buy foreign-owned stocks and bonds and hold them until the first day of April. Undoubtedly this is a want of due process.
I am of the opinion that the act is bad for three other reasons: First, it fails to provide adequate notice (treated in the opinion of the court); second, the proceedings prescribed do not provide for the presentation of justiciable issues and thus the order of the court cannot be held to be *Page 395 res judicata in any proceeding which might later be instituted affecting the validity of the tax; and, third, regardless of the answer to the first two questions, the effect of provisions of sections 5 and 9 is to destroy the validity of the act.
The question whether there is provided by this act a proceeding presenting justiciable issues is one of the most important in the case. If the proceeding prescribed is one presenting justiciable issues, the court's findings in it can be said to be resjudicata, but it is obvious that if the issues are not justiciable, if the proceeding is not one which comes within the bounds of judicial inquiry, then the findings of the court are not binding, and the fact that section 9 of the act declares them to be so on all persons, in all other proceedings, can be of no avail. Res judicata must arise, if at all, out of a justiciable issue.
The appellees say that a levy ordinance having been adopted, there is created thereby certain rights against the administrative officers of the county, — i.e., the right to demand that the county clerk extend the tax and that other officers collect it, and, it is said, there also comes into being the right of the district against all property within its boundaries, and so, these claims of right on the part of the taxing district, with the privilege to the taxpayer to contest them, constitute an actual controversy, and that, in that respect, the proceeding differs from Union Coal Co. v. City ofLaSalle, 136 Ill. 119, Tregea v. Modesta Irrigation District,164 U.S. 179, 41 L. ed. 395; and Muskrat v. United States,219 U.S. 346, 55 L. ed. 246. The Union Coal Co. case involved the legal right of the city to sell, by contract, the coal underlying its streets and other public property. It was held that the right of the city to sell was, in the absence of any attempt to contract, a question purely speculative, and that no justiciable question was presented. The Tregea case arose under a statute of the State of California for the organization of irrigation districts and authorizing *Page 396 the issuance of bonds. The statute provided that the commissioners of the district, after a vote had been taken to issue the bonds, might file a petition in court seeking the judgment of the court as to whether such bonds, if and when issued, were valid. The question on that phase of the case, as the court viewed it, was whether, in advance of the issuance of bonds and before any obligations had been assumed by the district on such bonds, there was a case of controversy, with opposing parties, such as can be submitted to a court and can compel judicial consideration and judgment. It was there pointed out that the directors of the irrigation district occupied no position antagonistic to the district or the property owners in it; that they were the agents of the district with interests identical, and that the petition was, in effect, an application on behalf of the district for determination of a question which might never arise. The proceeding was held to be, in effect, anex parte case to obtain a judicial opinion upon which parties might base further action. There is much of similarity between that case and this. The filing of the petition for confirmation of the levy ordinance is for the determination of a question which may never arise since no one is compelled to file objections to the levy, and it is conceivable that no objections would be filed. No known controversy exists. The power to levy a tax is fixed by statute. Taxing officials already have it. The proceeding here provided is to determine, as a matter of evidence, whether taxing officials have, as the law presumes they have, done their duty. As in the Tregea case, the petition is a request to have the court pass upon proceedings that have taken place. A court has no authority to levy a tax, and such a confirmation of the tax levy is but a finding of fact that the officers have complied with the law. The county clerk is as much the agent of the taxpayer as he is of the taxing body. He is, in fact, not the agent of either. (People v. Chicago, Burlington andQuincy Railroad Co. 247 Ill. 340.) He is an agent created by law for purposes of government and can be said to represent *Page 397 no one interest more than another. The notice he is to publish is to be directed to the district as well as to the taxpayers. There can neither be a controversy between him and the taxpayer nor between him and the taxing district.
Another weakness lies in the fact that there is before the court no description of the property on which the tax is to be levied and so it cannot be said that there is present this element of a proceeding in rem, considered in the Hoehamer andCesar cases to be essential to an action in rem for the sale of real estate to pay delinquent taxes. Yet the effect of this confirmation, as the act seeks to give it effect, other than as a finding of fact concerning the regularity of the levy proceedings, is to declare that the property shall be sold if the taxes are not paid, and this without any further trial. This is so because on application for sale the taxpayer may not be heard on the question of the validity of the levy. The effect of this proceeding is declared by section 9 to forever bar a trial of any issues affecting the validity of the levy. Thus, also, it seems clear, the act provides a determination of rights in and status of property without having the property within the jurisdiction of the court.
Appellees' argument as to rights arising from the filing of the clerk's petition was in effect made in the Muskrat case, supra. It was there claimed that by passage of the act of Congress there involved, Muskrat and his associates were given rights as designated in that act including a right to bring suit against the government, but it was held that the provisions of the act authorizing Muskrat and others to bring such a suit against the government did not provide for a proceeding with a justiciable issue, but that such proceeding would present merely the question whether an act of Congress was valid. I am unable to see wherein the proceeding here provided presents justiciable issues.
Nor can it be said that this act provides proceedings for a declaratory judgment. It has long been settled in this *Page 398 State, as will be seen on examination of the correspondence between this court and the then Governor of this State, to be found in volume 243 of Illinois Reports at page 9, that the courts of this State may not give advisory opinions.
That a controversy is an essential element of a declaratory judgment has been the uniform holding of courts in this country. As was said of declaratory judgments in the recent case, ÆtnaLife Insurance Co. v. Haworth, 300 U.S. 227, 81 L. ed. 617, "a controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests." The essentials of a declaratory judgment are: (1) A plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests, though there need not be any act in violation of any such interests. See, also, Anway v. Grand RapidsRailway Co. 211 Mich. 592. It was there held that the statute which sought to provide for declaratory judgments was not valid for the reason, among others, that it did not require actual, judicial controversies. A later decision by this same court,(Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673,) discloses that by an amendment to that statute actual controversies were required and the statute was held valid.
There is another, and, I think, unsurmountable, difficulty with this act. In the provisions of section 5 granting the right of the taxpayer to file objections, the following language appears: "If the objector desires to raise any question concerning the amount of the maximum tax rate for any municipal corporation,quasi municipal corporation or taxing body, or whether any levy is within or without a tax rate limit he shall likewise set forth in his written objections facts in support of his contention." Recurring to the provisions of the act as to when objections to the county clerk's petitions may be filed, we find that the latest possible time, in any one of the six districts affected, expires on or before July 15. The objection that the tax rate resulting from *Page 399 the tax levy will be in excess of statutory or constitutional limitations must be filed in the confirmation proceeding, or, under section 9, this objection is forever barred; and this, notwithstanding the fact that the question whether the tax rate will exceed constitutional or statutory limitations can not be determined until the final assessment and valuation of property is made and returned through the action of the assessors, the appeal board and the State Tax Commission. This of necessity comes much later in the year. It is obviously impossible for the objector or anybody else to know, when he files his objections to the clerk's petition, whether the levy will result in a rate in excess of legal limitations. Due process of law contemplates a reasonable opportunity to be heard in defense. This frailty, standing alone, renders the act unworkable and deprives the taxpayer of his property without due process of law.
Mr. JUSTICE FARTHING joins in this special concurrence.