dissenting:
I would reverse the circuit court’s judgment, allow the petitioner to intervene for the purpose of pursuing the Objection 1 protest insofar as it relates to his property, and grant the section 72 petition (Ill. Rev. Stat. 1975, ch. 110, par. 72) to vacate the order dismissing that part of the Objection 1 protest. I reach this conclusion both because First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 202 N.E.2d 26, the primary case relied on by the majority, is inapposite here, and for broader reasons of public policy relating to the relationship between taxpayers and the sovereign.
First Lien Co. v. Markle presents a factual situation different from this case. The assessor in First Lien delayed filing his Objection 1 until approximately 29 months after the overassessed property had been sold at a tax sale ordered subsequent to a judgment for delinquent taxes. And the court’s desire to protect the subsequent innocent purchaser at that sale appears to have been the reason for the First Lien language that a taxpayer may not rely on an Objection 1 procedure to correct alleged errors in assessments. As the court commented:
“* * * [I]t is * * * undisputed that no such objection was presented to the trial court prior to the judgment and order of sale of May 27, 1960; no appeal was taken therefrom; and no petition under section 72 of the Civil Practice Act was filed within two years of the entry of said order.
We have examined the cases cited by defendants to the effect that notice to a taxpayer is a condition precedent to an increase in an assessment. With one exception, these cases involve litigation between the taxpayer and the collector and do not involve the rights of a tax purchaser who purchased in reliance on a judgment and order of sale regular on its face.* ® * ” 31 Ill. 2d 431, 436-38.
Nothing in the record before us indicates either that any tax sale took place prior to the assessor’s filing the Objection 1, or that an innocent purchaser could be prejudiced by a decision favoring the taxpayer.
An additional basis for distinguishing First Lien is that there the taxpayer relied on the assessor’s mere promise to file an Objection 1, while here, the taxpayer placed his reliance on an Objection 1 protest which the assessor actually had filed. Although rejecting a taxpayer’s claim because he mistakenly relied on a governmental official’s mere promise to act may be a sensible result, rejecting such a claim after the action in fact was taken is palpably unjust: the taxpayer should not be placed in the difficult position of having to speculate on whether governmental actions are or are not valid, and then be penalized because he happens to guess incorrectly. As a member of the public, the taxpayer was entitled to rely on the assessor’s action, as well as on a subsequent adequate representation of his interests by the State’s Attorney.
The collector in his brief states that the “State’s Attorney is representing not the petitioner, but rather the assessor.” Precisely because the assessor has admitted the property owner was overtaxed, the State’s Attorney should be seeking to correct his client’s acknowledged error, instead of, as he does here, urging the judicial system to burden the taxpayer by perpetuating the error. The taxpayer should be protected from inadequate representation by a public official who voluntarily assumes the responsibility of protecting him; otherwise, with friends acting as the assessor’s and State’s Attorney’s office did here, he will not, in the words of an often-repeated observation, be in need of enemies. Accordingly, First Lien is not a useful precedent in this case.
My second ground for disagreement, however, is a more general concern with the rights of the often-beleaguered taxpayer. And this is a concern which seeks to avoid the perpetuation of individual injustice and collective dissatisfaction among taxpayers which often result from a strict application of the statutory requirements. Here, the assessor acknowledged that the property in question had been destroyed by fire, and that his assessment figure was erroneous. Under these circumstances, if any procedural device is available for preserving the taxpayer’s right to contest the tax assessment, notwithstanding his failure to pursue his statutory remedy, he should be given the benefit of the doubt and permitted to proceed with his protest against the admittedly improper assessment. Specifically, in this case the Objection 1 that the assessor filed in the circuit court before there was any tax sale, and which the taxpayer relied on, can be regarded as the procedural vehicle to preserve the taxpayer’s complaint. A decision giving the Objection 1 that status would not question an official’s judgment as to whether the valuation was unreasonably high, or encourage tax strikes. It merely would provide an opportunity to correct an error which the assessor acknowledged and the Board of Appeals — whose statutory duty was to correct that error — failed to remedy.
Our supreme court has not construed the statutory remedy to be so rigid and inflexible that only those who conform to it may seek relief from assessors’ admitted errors. In fact, the entire body of law which permits the taxpayer to seek equitable relief (see, e.g., Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299) is in a sense a departure from a need for strict compliance with the requirements of the statutory legal remedy. Therefore, if the assessor’s filing of the Objection 1 before a tax sale is construed as preserving the taxpayer’s complaint even though he has not paid the tax in full, the taxpayer at least will be able to get his foot in the door and protest a tax everyone concerned agrees is too high.
Otherwise, to insist that the property owner pay such a tax could only increase the dissatisfaction taxpayers feel — in many instances justifiably— toward the taxing authorities. When the sovereign leans so heavily on property owners for tax collections, the taxpayer deserves every consideration he can reasonably be given, especially in those instances when taxing officials concede in documents filed in the circuit court on their behalf that they have imposed an improper levy on a taxpayer. The sovereign’s action in making such a concession to the taxpayer here would not be against public policy and will not undermine future tax collections. I would permit the petitioner to take advantage of the assessor’s Objection 1 filed on his behalf.