Bd. of Supervisors of Madison County v. Smith

• Decision Date: 14 June 1880
• Citation: 95 Ill. 328,1880 WL 10040
• Parties: BOARD OF SUPERVISORS OF MADISON COUNTYv.IRWIN Z. SMITH.
• Court: Illinois Supreme Court

95 Ill. 328

1880 WL 10040 (Ill.)

BOARD OF SUPERVISORS OF MADISON COUNTY

v.IRWIN Z. SMITH.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 14, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WM. H. SNYDER, Judge, presiding.

Mr. CYRUS L. COOK, for the appellants:

The court should not have granted the writ of mandamus on a default taken and without the hearing of evidence, the petition not showing a prima facie case, such as entitles the petitioner to the writ or relief sought. The taking of the default against the defendant does not of itself entitle him to the writ. The petition must show a prima facie case or it will not be granted. The courts will refuse to grant the writ, even after the finding of a jury on the facts alleged, if the petition does not show a proper case. The granting of the writ, even where it might be a proper remedy, is yet within the sound discretion of the court. The People ex rel. v. Lieb, 85 Ill. 485; The People ex rel. v. Hatch, 33 Id. 140; Christman v. Peck, 90 Id. 150; The People ex rel. v. Commissioners of Highways, 52 Id. 498.

The writ does not issue as a matter of course,--is not granted as a matter of absolute right.

In the case of The People ex rel. Phillips v. Lieb, 85 Ill. 490, this court say: “A mandamus should not issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy if enforced, and it must be in the power of the party, and his duty also, to do the act sought to be done, and the writ is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced bound to act.” In the same case this court say: “The writ of mandamus is not granted as of absolute right in all cases, and the exercise of the jurisdiction in granting it rests to a considerable extent in the sound discretion of the court,” and make reference to the cases of The People ex rel. v. Hatch, 33 Ill. 140, The People v. Dubois, Id. 9, The People v. Chicago and Alton Railroad Co. 55 Id. 95, Menard v. Hood, 68 Id. 121, The People v. Illinois Central Railroad Co. 62 Id. 510, Universalist Church v. Columbia Township, 6 Ohio, 446, The People ex rel. v. Commissioners of Highways, 88 Ill. 141, Christman v. Peck, 90 Id. 150, and The People ex rel. v. Shurtz, 52 Id. 503.

The judgment of the court below is erroneous in requiring the county board to cancel the forfeiture of certain real estate, a thing they have no power whatever to do. There is no provision of law giving the board any control over the matter of forfeiture. The petition asks that the writ issue to compel them to “cancel the forfeiture,” and the court so orders, and grants a peremptory writ of mandamus compelling them to do it. This, too, after the land had been forfeited to the State for two or three years. The statute provides that after judgment against land for taxes in the county court, it shall be advertised and sold by the collector, and if there are no bidders it is struck off to the State,--becomes forfeited to the State. Rev. Stat. 1874, page 891, sec 203.

The writ requires, now, the board to cancel this forfeiture. It might, with equal propriety, require them to vacate the Supreme Bench.

The petition asks and the order of the court below requires the board to make an abatement of the assessment of petitioner's real estate for the years 1876 and 1877, a thing not in their power to do at the time the writ was granted.

The petition asks for impossibilities, and for nothing whatever that the board are competent to do, and the judgment of the court is, that the board, in accordance with the prayer of the petition, be compelled, first, to abate the assessments for the years 1876 and 1877, and second, to cancel the forfeiture of said lands to the State. How can the county board review and correct assessments of property already forfeited to the State, as averred in this petition? The petitioner should have resisted judgment in the county court against his lands, and appealed from it to this court. See Rev. Stat. 1874, page 890, secs. 192 and 193. In this way he could have prevented the forfeiture of which he complains, and have obtained all the redress necessary. The power of the board in this matter is simply that of reviewing and equalizing assessments and adjusting matters of grievance when the application is made to them at the proper time, a time fixed by law, after the annual assessment and previous to application for judgment in the county court. See Rev. Stat. 1874, page 873, sec. 97.

This matter, even when the application is made to the board at the proper time, is a matter entirely in their discretion,--they are not bound to grant the relief desired unless they see fit. The statute reads: “They shall, on the application of any person considering himself aggrieved, review the assessment and correct the same as shall appear to be just.” Rev. Stat. 1874, p. 873, sec. 97. A matter evidently in their discretion.

There is another inconsistency we desire to notice. They ask the abatement of the assessment for the years 1876 and 1877, and still the petitioner states that the assessment was correct.

The court, therefore, should have set aside the default, the petition failing to show even a prima facie case. Union Hide and Leather Co. v. Woodley, 75 Ill. 435.

Mr. D. GILLESPIE, for the appellee:

The appellants in this case voluntarily permitted a default to be entered against them, and thereby impliedly admitted that the demand was just, and that they had no defence. Lucas v. Spencer, 27 Ill. 17; Mansfield v. Hoagland, 46 Id. 359.

As to the manner provided in the statute for an abatement of an assessment for taxes:--

Section 86, Revenue chapter, Rev. Stat. 1874, p. 871, provides, in counties under township organization the assessor, clerk and supervisor shall meet on the fourth Monday of June for the purpose of reviewing and correcting the assessment, etc. Property assessed after the fourth Monday of June to be subject to complaint to county board.

The next remedy is to the county board at their meeting on the second Monday of July. See section 97, act of 1877, 829.

In this case, according to the statement in the petition, application was made to the board of review, and also to the board of supervisors, by the petitioner, for relief. This was all that he could do. In the case of Adsit v. Lieb, 76 Ill. 201, it was held if a party did not avail himself of these opportunities he must bear the consequences.

In the case of the National Bank of Shawneetown v. Cook et al. 77 Ill. 622, it is decided that after an assessment for taxation has been made, etc., and taxes extended thereon, and the books in the hands of the collector, even if the county board has any legal authority to change the assessment, it certainly has no power to make such a change to the detriment of the tax-payer, without notice to him. This decision seems to indicate that the county board might give relief. No other power can.

It is insisted that the granting of the writ of mandamus is a matter of discretion. All the cases referred to on this point are where there was a contest in the court below.

It is also insisted that it was the duty of the court to have heard evidence, although there was a default. This is not in accordance with the plain terms of the statute.

As to the right to have the default set aside, the appellants had plenty of time to answer the petition. The demurrer was sustained at the March term, A. D. 1878, amended, and continued to October term, 1878. And it was then only on the fourth day of the term that the default was taken. No sufficient excuse was shown to the court, and it therefore refused to set aside the default.

In the case, referred to by appellants, of the Union Hide and Leather Co....