specially concurring:
I concur in the ultimate result in this case which leaves the original order of July 9, 1971, assessing inheritance tax in this estate as a final order. My disenchantment is the method by which that result was reached. It seems to me that In re Estate of Voss, 55 Ill.2d 313, 303 N.E.2d 9, disposes of the only issue before this court, but that the rest of the opinion is wholly unnecessary and discusses issues not properly raised. In particular, I see no occasion either to discuss or to decide the constitutionality of any part of the Inheritance Tax Act. We raised some questions about it in oral argument. It was never decided by the trial court, and, as a consequence, in discussing that question here, the majority opinion goes far afield from any issue that we properly review. It is not necessary to find any part of the Inheritance Tax Act unconstitutional to dispose of this appeal.
We appropriately dismiss the attempted appeal not because of any provision of the State inheritance tax law but because of previous opinions of the Illinois Supreme Court that it is the obligation of that court to provide for expeditious and timely appeals and that it has the power rather than the legislature for making rules for appeals. (People v. Kennedy, 43 Ill.2d 200, 251 N.E.2d 209; People ex rel. Stamos v. Jones, 40 Ill.2d 62, 237 N.E.2d 495; Ill. Const, art. VI, § 16 (1970.) Following these principles, we may correctly hold that the order assessing inheritance tax was appealable to a reviewing court and not to the circuit court, and was not filed within the time limited by Supreme Court Rules. Under such circumstances, the proper order of the trial court would be affirmed without the necessity of discussing questions not decided by the trial court and without becoming advocates in an adversary proceeding — a position which we have so frequently declared to be abhorrent.
Reliance by the majority on Jennings for holding section 11 of the Inheritance Tax Act unconstitutional under the 1970 Constitution is reliance misplaced and prostitutes the holding in that case. The Jennings court neither held nor did it state that the county judge in determining the inheritance tax due, if any, acts as an administrative officer. Jennings merely held that once it was determined whether or not a tax was due and the amount, if any, was fixed by the county judge, and there was no appeal to the county court, “his decision is final and conclusive and not subject to review by the county court, except” under circumstances with which we are not concerned in Barker. By the same token, the order of the circuit court determining tax was not appealable in the manner here attempted, and the trial court correctly denied the appeal and dismissed it. The appeal should have been taken either to this court or to the supreme court under Supreme Court Rules. It wasn’t done in apt time or in the proper manner, and was from an order the trial court had no jurisdiction to review and was properly dismissed. This is so not because section 11 of the Inheritance Tax Act is unconstitutional but because the power of the supreme court to determine rules of appeal supersedes the power of the legislature to prescribe such rules. The majority manufactures a theory to use Jennings as a springboard to hold section 11 unconstitutional. From such a theory the conclusion necessarily follows that tihere was no one authorized to legally assess or impose State inheritance tax since the effective date of the 1970 Constitution. This conclusion is necessarily reached because of the majority’s determination that in inheritance tax proceedings a court acts in an administrative capacity rather than in a judicial capacity. The conclusion of the majority cannot find a solid foundation in Jennings because nowhere did that court either say that the judge was an administrative officer nor did its decision so hold. It was only the pleadings of the Attorney General which charged the county judge with acting as an administrative officer rather than in a judicial capacity. Jennings held only that no appeal was prosecuted within the proper time. Jennings therefore in my view is no authority to support the views expressed by the majority as to the unconstitutionality of section 11 of the Act.
Indeed when the functions imposed on the probate division under our present judicial system for determining the existence or nonexistence of inheritance tax and its amount are viewed in their practical, commonsense practice, I submit that that division of the circuit court functions as a court and not as an administrative agency. To hold otherwise under the 1970 Constitution is to cast a shadow upon legal titles and create many other legal complications too numerous to here specify. I see no reason to create any anxiety, shadows or doubts for the judiciary or the legal profession to obfuscate them when this case may be readily decided on the principles stated in Voss and by affirming the trial court. To denominate a circuit judge as an administrative officer under the Inheritance Tax Act is to me inexplicable, except for an unfortunate pleading in Jennings, unsupported by any judicial decision, and is regrettable. To make such a holding prospective only is in my judgment beyond the power of this court, in addition to being wholly unnecessary for a proper disposition of this case.