Chicago & N.W. Ry. Co. v. People ex rel. Axtell

• Decision Date: 19 February 1900
• Citation: 56 N.E. 367,184 Ill. 240
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. AXTELL, County Collector.

184 Ill. 240

56 N.E. 367

CHICAGO & N. W. RY. CO.

v.PEOPLE ex rel. AXTELL, County Collector.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from McHenry county court; O. H. Gilmore, Judge.

Application by the people, on the relation of F. F. Axtell, county collector, for judgment for delinquent taxes. From an order overruling objections by the Chicago & Northwestern Railway Company, the company appeals. Modified.

D. T. Smiley, for appellant.

V. S. Lumley, State's Atty. (John B. Lyon, of counsel), for appellee.

CARTWRIGHT, C. J.

Upon application for judgment against real estate in McHenry county, Ill., delinquent for taxes thereon for the year 1898, the appellant appeared and filed objections. Some of the objections were sustained, and others were overruled, and judgment was entered accordingly.

The first objection relied upon by appellant which was overruled is numbered 8, and it is that the school tax of $1,500 levied for building purposes in union-school district No. 1 in the town of Algonquin, and district No. 3 in the town of Nunda, is illegal, for the reason that there had been no vote of the electors authorizing any sum to be levied for building purposes. The evidence shows that an election was held in June, 1883, for the purpose of locating a school-house site, and for the appropriation of $15,000 to build a new school house, and these propositions were carried. The board issued three bonds, for the sum of $5,000 each, and payable in 10, 12, and 15 years from date, with interest at the rate of 6 per cent., payable semiannually. On July 28, 1898, the board of education made a certificate that they required the sum of $1,500 to be levied for building purposes. It was to aid in the payment of one of these bonds. It is contended by appellant that the record does not show any vote for issuing the bonds, but the objection filed does not present that question. The tax was for building purposes, and was regularly levied. The court did not err in overruling the objection.

The next objection is the eleventh, and is that the school tax levied in district No. 5 in the town of Hartland is illegal, for the reason that the certificate was not signed by a majority of the board, and was not made by the directors in their capacity as a board. In that district the school directors held a meeting, and there was a motion made to levy this tax. The motion was carried, but no certificate was made, and no record was made of the action. One of the directors testified that the others told him to sign their names to the certificate when he got it; that he could sign their names to that or any other paper which would come up,-to the tax certificate or schedule or order, or the county superintendent's report, or any other paper belonging to the school. He testified that he afterwards made this certificate, and signed the names of the other directors to it. One of the other directors thought that he signed the certificate at the Hartland deport, where he shipped milk. The court permitted the other director to sign his name to the certificate on the hearing. We have held that, the legislature having prescribed that the making of a certificate of the school directors and filing with the township treasurer constitutes the levy of school taxes, the mere failure of the clerk to keep a record of such official act will not invalidate the tax. Lawrence v. Traner, 136 Ill. 474, 27 N. E. 197. This certificate being the basis for the imposition of taxes, the power to make it can only be exercised at a meeting of the board; and, while the court may permit an ineffectual attempt to make such a certificate at a meeting of the board to be amended, it cannot dispense with a levy of the tax, or vitalize a levy void ab initio. People v. Smith, 149 Ill. 549, 36 N. E. 971. The statute prohibits the board from transacting any official business, except at a regular or special meeting. School Law, art. 5, § 19. The certificate is jurisdictional, and the levy could not be made valid by an amendment. The permission to the other director to sign could not avoid the material defect. People v. Chicago & N. W. Ry. Co., 183 Ill. 311, 55 N. E. 682. The court erred in overruling the objection.

The next objection is the fourteenth,-that the town tax in the town of McHenry was illegal because not levied as provided by law. The record of the annual town meeting shows the following: ‘Motion made by F. K. Granger to permit supervisor to levy tax of $1,500 for town expenses, etc., was unanimously carried.’ The town clerk certified to the county clerk as follows: ‘I, M. J. Welch, town clerk in and for the town of McHenry aforesaid, do hereby certify that the amount of $1,500 is required to be levied as a tax for town purposes upon all the real estate and personal property in said town liable for taxation for the year 1898, as appears from the record entries of moneys voted to be raised at the town meeting, and from the certificate of the board of town auditors of said town, in my office remaining. Given under my hand this 6th day of September, 1898. M. J. Welch, Town Clerk.’ The record shows that the elctors authorized the levy of a tax of $1,500 for town purposes. The facts that by the terms of the motion the supervisor was...