Biggins v. People of State

• Decision Date: 29 March 1883
• Parties: THOMAS BIGGINSv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

106 Ill. 270

1883 WL 10209 (Ill.)

THOMAS BIGGINS

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jersey county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. IRWIN & SPRINGER, and Mr. J. W. COPPINGER, for the appellant:

To create a forfeiture of lands to the State for unpaid taxes, there must have been a notice, a judgment, a process issued for the sale of the property, an offer of the property for sale, and a failure to sell for want of bidders. Vetter v. People, 3 Bradw. 381; Smith v. People, Id. 380; Scott v. People, 2 Id. 642. See, also, Spellman v. Curtenius, 12 Ill. 409; People v. Owners, 32 Id. 408; McKee v. Supervisors, 53 Id. 477.

There being no forfeiture of the lands in question, it was error on the part of the collector to charge them with penalties which can accrue only against forfeited land. Appellant purchased these lands in November, 1877, and has paid the taxes on all subsequent years, and we submit that under sections 277 and 278 of the Revenue law,--which are the only ones applicable,--he is not liable for these back taxes and penalties.

If it be said we are precluded by the judgment of the county court from raising this question, we answer that the act by virtue of which this suit was brought does not predicate the right of foreclosure on the judgment of the county court, but upon the taxes, and it makes, not the judgment record, but the collector's books, prima facie evidence of the amount due. Prior to the act of 1881 the taxes were a lien upon the land, but that act makes not only the taxes, but the penalties, interest and costs, a lien, and not only a lien, but a prior and first lien, superior to all other liens and incumbrances. This act was intended to operate prospectively, and not retrospectively. Throughout the act the future and not the past tense is used. It speaks of the “penalties, interest and costs that may accrue.” Courts will not give a law a retroactive operation, even though it might be done without a violation of the constitution, unless that intention is manifested by the most clear and unequivocal language. Betts v. Bond, Breese, 223; People v. Thatcher, 95 Ill. 109; Wade on Retroactive Laws, secs. 34-39.

Mr. J. H. YAGER, State's Attorney, for the People:

Where the party appears and resists judgment against his land for taxes, he waives all defects in the notice of the application, and it matters not if there was no notice at all. People v. Sherman, 83 Ill. 165.

As to the matters preceding the application for judgment, they must be considered res judicata, and not to be again investigated. Lehmer v. People ex rel. 80 Ill. 601.

Errors and omissions not affecting the substantial justice of the tax will not vitiate. Sec. 191, Revenue act; Beers v. People, 83 Ill. 88; Edwards et al. v. People, 88 Id. 340.

It is asked if a forfeiture can be had on back taxes alone. The record shows that the taxes on this land were paid for the years 1880, 1879 and 1878, on March 31, 1881, from which it is plain that the back taxes were added to the current year's tax.

On an application for judgment against land for taxes, including back taxes on lands forfeited for previous years, it is not competent to inquire whether the judgments for taxes of previous years were in strict conformity to the statute. If those judgments were erroneous, the remedy was by appeal or writ of error. ( People v. Smith, 94 Ill. 226.) The judgment is binding, though erroneous. People ex rel. v. McCrea, 92 Ill. 619. The amendatory act of 1881 gives a new remedy to enforce preëxisting liens for taxes, and may be used for that purpose. The other suits against appellant are no bar to relief under this statute. The dismissal of the prior bill was for want of jurisdiction, and decided nothing as to the merits of this controversy.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case was brought under that clause of the act of 1881 which declares “the taxes upon real property, together with all penalties, interest and costs that may accrue thereon, shall be a prior and first lien on such real property, superior to all other liens and incumbrances, from and including the first day of May in the year in which the taxes are levied until the same shall be paid, which lien may be foreclosed in equity in any court of competent jurisdiction, in the name of the People of the State of Illinois, whenever the taxes for two or more years, upon the same description of property, shall have been forfeited to the State.” The object of the bill is to subject a piece of land, known as the “old penitentiary grounds,” to the payment of back taxes assessed thereon for the years 1871 to 1877, both years inclusive, together with the “penalties, interest and costs” that have accrued thereon. It is alleged in the bill that Thomas Biggins, who is made defendant, became the owner of the property in 1877, under deeds containing a clause providing the grantee shall pay all taxes and assessments, both general and special, levied and assessed on the property prior to and up to the date of such deeds. The owner failing to pay the taxes for the several years mentioned, it is alleged the collector gave notice of application for judgment and order of sale, as required by statute, in pursuance of which such proceedings were had in the county court that judgments for the taxes due for each year were obtained, and under such judgments the property being offered for sale was forfeited to the State for want of bidders; that at the May term, 1881, after the property had been assessed in the name of the present owner, judgment was rendered against it for the taxes, interest, penalties and costs then due thereon, and an order of sale made, in pursuance of which it was advertised and offered for sale in conformity to law, and was again struck off to the State for want of bidders, and that the taxes for more than two years have been assessed on the property, and it has been forfeited for more than two successive years for the non-payment of taxes thereon. An amendment to the bill states the ownership and source of title to the property as in the original bill, the recovery of judgment against the property at the May term, 1880, of the county court, for delinquent taxes, penalties, interest and costs, under which it was advertised and offered for sale in the manner pointed out in the statute, and was struck off to the State, and also restating the proceedings of the May term, 1881, of the county court, as set forth in the original bill.

The answer of the owner defending admits ownership of the property, and sets up as a defence, first, that the “penalties, interest and costs” on the taxes included in the decree are without authority of law, and are, for that reason, no charge on the property in his hands; and second, that a suit at law was brought against the present owner for the identical taxes, penalties, interest and costs involved in this suit, in which it was held by the Supreme Court the owner was not liable for such taxes, and at the same term of court a bill in chancery was filed against him, in the name of the People, to enforce the statutory lien for such taxes, which bill was dismissed by the circuit court, and that decree was afterwards affirmed in the Supreme Court. Other matters are set up in the answer, but it is not necessary to state them to an understanding of the questions of law discussed. Should it appear to be important to do so, other facts will be stated in the brief discussion that is to follow. Before passing to the consideration of what is thought to be the real subject of the controversy, so far as the merits of the case are concerned, it may be well first to clear away all mere technical objections to the present decree. It is insisted the act of 1881, cited, that gives a court of equity jurisdiction to enforce the statutory lien for taxes in certain cases, can have no application to the case in hand, and the reason assigned is, it was the obvious intention of the General Assembly it should operate prospectively, and not retrospectively. So far as the act simply affords a remedy, it may be used or employed to enforce a preëxisting right, as well as one subsequently accruing. It makes no difference when the cause of action arose,--the remedy, when given, may be availed of. The cases cited have no application to statutes giving a new remedy. A graver objection is, the act of 1881 not only gives a new remedy, but it creates a new lien. The suggestion is, it is broader in its terms than the original section (253), the place of which it takes. This, it is thought, is a misconception of the scope of section 253 of the act of 1872. That section, it is said, only made the “taxes” a lien, while the amendatory act of 1881 makes not only the taxes, but the “penalties, interest and costs,” a lien upon the property assessed. It is a mistake to suppose section 253 of the act of 1872 did...