Cairo V.&C. Ry. Co. v. Mathews

• Decision Date: 22 October 1894
• Citation: 38 N.E. 623,152 Ill. 153
• Court: Illinois Supreme Court
• Parties: CAIRO, V. & C. RY. CO. v. MATHEWS, Treasurer.

152 Ill. 153

38 N.E. 623

CAIRO, V. & C. RY. CO.

v.MATHEWS, Treasurer.¹

Supreme Court of Illinois.

Oct. 22, 1894.

Appeal from White county court; James C. Pearce, Judge.

Application by Thomas J. Mathews, treasurer and ex officio collector of White county, for judgment for delinquent taxes. The Cairo, Vincennes & Chicago Railway Company filed objections, which were overruled, and judgment entered. The company appeals. Affirmed.

C. S. Conger, for appellant.

F. M. Parish, for appellee.

BAKER, J.

This is an appeal by the Cairo, Vincennes & Chicago Railway Company from the judgment of the county court of White county, rendered against it for the taxes of the year 1892 and costs. The objections filed in the county court were overruled, and exceptions taken. They will be considered in their order.

It is objected that the advertisement of the delinquent list and application for judgment was defective, and not such as is required by law. Even if this be so, it cannot now avail the appellant. It appeared in the county court, and filed objections to the rendition of judgment, and litigated the matter of its liability for the taxes in question. This cured the defect, if any, in the published notice. People v. Sherman, 83 Ill. 165;Hale v. People, 87 Ill. 72;Frew v. Taylor, 106 Ill. 159.

It is objected that the judgment was rendered against the appellant's real estate for the taxes assessed against its personal property, without there being any evidence showing that such personal property tax could not be collected out of the personal property of appellant. This objection is based upon the requirements of sections 255 and 183 of chapter 120 of the Revised Statutes. It is providedin section 255 that the tax on personal property shall not be charged against real property, except in cases of removals, or where said tax cannot be made out of personal property. We held in Shelbyville Water Co. v. People, 140 Ill. 545, 30 N. E. 678, that, where the collector's book shows a charge of unpaid personal property tax against particular parcels of land, it will be presumed that such charge became necessary, because the tax could not be made out of personal property. It is urged, however, that at the hearing of the objections one Elvis Hunsinger, an assistant of the collector, testified that no effort of any kind had been made by the collector to collect the personal tax charged against appellant, and that this evidence rebuts the presumption that would otherwise be indulged in. The evidence in question does not go far enough to overcome the presumption that the collector did all that his official duty required of him. Shelbyville Water Co. v. People, supra; Job v. Tebbetts, 5 Gilman, 382. There is some evidence in the record which tends to show that at the time that the taxes on personal property were charged against real estate, and at the time of the application for judgment herein, the rolling stock and other personal property connected with appellant's line of railroad in White county belonged to and was in the possession of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and that this latter company was operating said line of road. If this were so, it would have been but an idle ceremony for the collector to have demanded from the local agents in White county of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company payment of taxes that had been levied for a former year on the personal property of a different corporation, the Cairo, Vincennes & Chicago Railway Company. And it would not be required of such collector that he should endeavor to make such tax by seizing the rolling stock and other personal property of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. The evidence tending to prove this state of the case is but slight, but the people are entitled to the benefit of it, and to its probative force is added the presumption of the performance of official duty; and the weight of the two, combined, is sufficient to overcome the fact testified to by Hunsinger.

In respect to the claim that the collector did not, in compliance with the requirement of section 183, select some particular tract or tracts of real property, against which to charge the delinquent personal tax, we may say that we think it is without merit. It appears that he selected and designated ‘a strip of land extending on each side of said railway track, and embracing the same, together with all the stations and improvements, commencing at a point where said railroad track crosses the eastern boundary line of said White county, and extending to a point where said railway track crosses the western boundary line of said White county, said strip of land containing in all 374 and 99-100 acres.’ We think this is a sufficient selection and designation of a ‘particular tract of real property.’ Section 42 of the revenue act provides that the right of way of railroads shall be held to be real estate, for the purposes of taxation, and denominated ‘railroad tracks,’ and shall be described in the assessment thereof as a strip of land extending, etc., ‘* * * commencing at a point where said railroad track crosses the boundary line in entering the county, * * * and extending to the point where such track crosses the boundary line leaving such county, etc., * * * and giving the number of acres and length in feet,’ etc.

It is objected that the description in the assessment book is insufficient, and does not agree with the description in the delinquent list. The only...