Ames v. Schlaeger, 27654.

• Decision Date: 21 March 1944
• Docket Number: No. 27654.,27654.
• Citation: 386 Ill. 160,53 N.E.2d 937
• Parties: AMES v. SCHLAEGER, County Collector.
• Court: Illinois Supreme Court

386 Ill. 160

53 N.E.2d 937

AMES

v.SCHLAEGER, County Collector.

No. 27654.

Supreme Court of Illinois.

March 21, 1944.

Representative suit by Howard Ames against Victor L. Schlaeger, County Collector of Cook County, to enjoin the collection of illegal taxes. From a decree of dismissal, complaint appeals.

Affirmed.Appeal from Circuit Court, Cook County; William v. Brothers, judge.

Adelbert Brown, of Chicago, for appellant.

Thomas J. Courtney, State's Atty., of Chicago (Joseph P. Burke, William J. Tuohy, and Francis S. Clamitz, all of Chicago, of counsel), for appellee.

THOMPSON, Justice.

Appellant, Howard Ames, who is the owner of real and personal property in the city of Chicago, instituted a suit in the circuit court of Cook county against appellee, as county treasurer and ex-of-ficio county collector of Cook county, seeking to enjoin the collection of that part of the 1942 taxes which are claimed by him to be illegal. The suit was filed by appellant on behalf of himself and all other real and personal property taxpayers similarly situated. The complaint alleges that a total tax rate of $10.42 on each $100 of assessed valuation was levied for the benefit of Cook county, city of Chicago, Chicago Sanitary District, Chicago Board of Education, Forest Preserve District, and Chicago Park District, against the property of all taxpayers owning real and personal property, and that the total tax rate to the extent of $1.54 thereof is illegal, excessive or void. The taxes are alleged to be illegal because levied for unitemized appropriations, appropriations for noncorporate purposes, appropriations for disbursements by administrative officers or agencies with no reservation of control by the governing body, and appropriations illegally excessive. The complaint also contained a prayer for an injunction restraining the apportionment and distribution among the six above-named taxing bodies of the alleged illegal taxes collected. Appellee moved to dismiss the complaint as not sufficient under the facts therein set up to invoke the jurisdiction of equity, on the grounds among others, that appellant has a complete remedy at law, and that he is not entitled to maintain this action in behalf of others than himself for the alleged purpose of avoiding a multiplicity of suits. The chancellor sustained appellee's motion and dismissed the complaint for want of equity. Since the revenue is involved, an appeal has been taken direct to this court.

This court, in numerous cases, has recognized the jurisdiction of a court of equity to enjoin the levy, extension or collection of a tax not authorized by law; or assessed upon property exempt from taxation or not subject to the tax imposed; or levied by persons without right or color of authority, either as de jure or de facto officers; or where fraud, either actual or constructive, intervened in the assessment or levy of the tax; or where a tax was imposed upon an occupation not subject thereto. Chicago, Burlington & Quincy Railroad Co. v. Frary, 22 Ill. 34;Schofield v. Watkins, 22 Ill. 66;McBride v. City of Chicago, 22 Ill. 574;Munson v. Minor, 22 Ill. 594, 595;Vieley v. Thompson, 44 Ill. 9;Wabash, St. Louis & Pacific Ry. Co. v. Johnson, 108 Ill. 11;Illinois Central Railroad Co. v. Hodges, 113 Ill. 323;Rosehill Cemetery Co. v. Kern, 147 Ill. 483, 35 N.E. 240;Heinroth v. Kochersperger, 173 Ill. 205, 50 N.E. 171;Knopf v. First Nat. Bank, 173 Ill. 331, 50 N.E. 660;Earl & Wilson v. Raymond, 188 Ill. 15, 59 N.E. 19;White v. Raymond, 188 Ill. 298, 58 N.E. 976;Greenberg v. City of Chicago, 256 Ill. 213, 99 N.E. 1039, 49 L.R.A.,N.S., 108; Herschbach v. Kaskaskia Island Sanitary & Levee Dist., 265 Ill. 388, 106 N.E. 942;Pekin Loan Co. v. Soltermann, 365 Ill. 460, 6 N.E.2d 857;People's Gas Light & Coke Co. v. Stuckart, 286 Ill. 164, 121 N.E. 629; Bistor v. Board of Assessors, 346 Ill. 362, 179 N.E. 120, 78 A.L.R. 686;Green v. Mail, 362 Ill. 518, 200 N.E. 604;People's Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995;Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177.

It has also been consistently held by this court that an irregular or erroneous tax, as distinguished from one that is unauthorized and void, will not be enjoined. Chicago, Burlington & Quincy Railroad Co. v. Frary, 22 Ill. 34;McBride v. City of Chicago, 22 Ill. 574;Munson v. Minor, 22 Ill. 594, 595;Gray v. Board of School Inspectors, 231 Ill. 63, 83 N.E. 95;Michigan Central Railroad Co. v. Carr, 303 Ill. 354, 135 N.E. 881;Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177.

Both this court and the Supreme Court of the United States have announced the rule that the illegality of a tax will not alone justify the interposition of a court of equity to restrain its collection, and that before relief can be granted by way of injunction there must exist special facts and circumstances which bring the case under some acknowledged head of equity jurisprudence. Dows v. City of Chicago, 11 Wall. 108, 78 U.S. 108, 20 L.Ed. 65;Stratton v. St. Louis Southwestern Railway Co., 284 U.S. 530, 52 S.Ct. 222, 76 L.Ed. 465;Cook County v. Chicago, Burlington & Quincy Railroad Co., 35 Ill. 460;Beardsworth v. Whiteside, etc., Drainage Dist., 356 Ill. 158, 190 N.E. 310.

Prior to May 18, 1933, there was no statutory provision for the return of any portion of an illegal tax, and the same could not be recovered unless paid under duress. People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill. 424, 19 N.E.2d 336. When the circumstances were sufficient to constitute duress, the party could not refuse to pay and maintain a suit to enjoin collection, as he was considered to have an adequate remedy by paying the tax and suing at law for its recovery. This was the holding of the Supreme Court of the United States in the case of Stratton v. St. Louis Southwestern Railway Co., 284 U.S. 530, 52 S.Ct. 222, 76 L.Ed. 465. In that case the District Court of the United States for the Southern District of Illinois, 57 F.2d 211, had entered a decree enjoining, as an unconstitutional burden on interstate commerce, the assessment and collection of a franchise tax under the Illinois Corporation Act. The Supreme Court of the United States reversed the decree on the sole ground that inasmuch as payment of the tax, if made by the company to prevent forfeiture of its franchise, was such duress as entitled it to recover the illegal tax in a suit at law, the remedy thus afforded the railway company after paying the tax to sue at law for its recovery was adequate and complete and precluded resort to the preventive jurisdiction of equity to enjoin its collection.

However, as hereinbefore mentioned, prior to May 18, 1933, an illegal tax voluntarilypaid, although under protest, could never be recovered. Sections 162 and 191 of the Revenue Act of 1872, as amended May 18, 1933, provided for the recovery of illegal taxes paid on real...