Burlington Lumber Co. v. Willitts

• Citation: 118 Ill. 559,9 N.E. 254
• Parties: BURLINGTON LUMBER CO.v.WILLITTS, Collector of New Boston Tp.
• Decision Date: 13 November 1886
• Court: Illinois Supreme Court

118 Ill. 559
9 N.E. 254

BURLINGTON LUMBER CO.
v.
WILLITTS, Collector of New Boston Tp.

Supreme Court of Illinois.

November 13, 1886.

Appeal from Mercer county.

Bill to enjoin collection of tax. The facts are stated in the opinion. The defendant had judgment below, and plaintiff appealed.

The logs were not taxable in this state. Rev. St. Ill. c. 120, § 1, cl. 2, § 6, pars. 9, 10; Coe v. Town of Errol, 6 Sup. Ct. Rep. 475; Hays v. Pacific Mail S. S. Co., 17 How. 596; Board of Tazewell Co. v. Davenport, 40 Ill. 197; City of Dunleith v. Reynolds, 53 Ill. 45; Herron v. Keeran, 59 Ind. 472; Parker Mills v. Commissioners of Taxes, 23 N. Y. 242; Blount v. Munroe, 60 Ga. 61; Desmond v. Machias Port, 48 Me. 478; Lee v. Templeton, 6 Gray, 579; Ellsworth v. Brown, 53 Me. 519; Loud v. Charlestown, 103 Mass. 278; Walton v. Westwood, 73 Ill. 125; Vogt v. Ayer, 104 Ill. 583; Goldgart v. People, 106 Ill. 25.

There can be no doubt of the illegality of at least such part of the taxes in this case as were assessed by the town of New Boston. If the remainder of the taxes are found to be legally assessed, still it is no defense to the bill that payment of the legal part has not been tendered. It is only when a part of the tax is admitted to be legal that such tender must be made. Taylor v. Thompson, 42 Ill. 17; Briscoe v. Allison, 43 Ill. 296; Johnson v. Roberts, 102 Ill. 658.

Bassett & Wharton, for appellees, cited, upon the first point, besides some of the cases cited by appellants, Board of Sup'rs v. Davenport, 40 Ill. 197; First Nat. Bank v. Smith, 65 Ill. 45; Selz v. Cagwin, 104 Ill. 647; Irvin v. New Orleans, St. L. & C. R. Co., 94 Ill. 105; City of St. Louis v. Wiggins Ferry Co., 11 Wall. 423; Hutch. Carr. § 418.

The case of Coe v. Town of Errol, cited by counsel for appellants, is distinguishable. In that case the logs were detained on account of low water. If a part, but not all, of the taxes are illegal, the bill cannot be maintained. Johnson v. Roberts, cited by appellant; Swinney v. Beard, 71 Ill. 31; High, Inj. §§ 497, 498.

The proper remedy of plaintiff was to appear before the town auditors or board of supervisors, and apply for redress there. Preston v. Johnson, 104 Ill. 628; Felsenthal v. Johnson, Id. 23; Mix v. People, 4 N. E. Rep. 786; Humphreys v. Nelson, 115 Ill. 45; S. C. 4 N. E. Rep. 637; Wabash, St. L. & P. R. v. Johnson, 108 Ill. 11; Johnson v. Roberts, 102 Ill. 655. They failed to do this, and, having failed, cannot be relieved in equity.

It is claimed that the plaintiff paid taxes on these logs in Iowa. If it was true, it is of no avail if they were liable to assessment under our laws. Coe v. Town of Errol, cited by appellant.

Counsel for appellant, in reply as to the last point raised by appellee, cites Railroad Co. v. Cole, 75 Ill. 591; Town of...