Burlington Lumber Co. v. Willitts

• Decision Date: 13 November 1886
• Citation: Burlington Lumber Co. v. Willitts , 118 Ill. 559, 9 N.E. 254 (Ill. 1886)
• Parties: BURLINGTON LUMBER CO. v. WILLITTS, Collector of New Boston Tp.
• 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 Lebanon v. Railroad Co., 77 Ill. 539;Gage v. Evans, 90 Ill. 569;Wilson v. Weber, 96 Ill. 454;Lemont v. Stone Co., 98 Ill. 94;Illinois Cent. R. R. v. Hodges, 113 Ill. 323.

John C. Pepper, for appellant.

CRAIG, J.

This was a bill in equity, brought by the Burlington Lumber Company, to enjoin the collection of a tax upon an assessment made by the assessor of the town of New Boston, in Mercer county, for the year 1885, on a certain quantity of logs which were in the New Boston harbor or bayou on the first day of May, 1885. There is no substantial dispute between the parties in regard to the facts. The Burligton Lumber Company is a corporation organized under the laws of Iowa, with its place of business at Burlington. The corporation is engaged in the business of manufacturing lumber. It buys logs in Wisconsin and Minnesota, where they are rafted, and towed down the Mississippi river to Burlington, and there sawed into lumber at the mills of the company. In the spring and summer of 1884 the company purchased logs, which were rafted in Beef slough, near the mouth of the Chippewa river, in Wisconsin. After the logs were rafted they were towed down the river by a steamer.

The vice-president of the corporation, on cross-examination, testified: ‘Some of the logs were stopped on the way. We could not stow all we bought at or near Burlington, but it was more convenient and safer to leave them in the harbor at New Boston. After the boats were started with the rafts, the boat would be instructed to leave them at New Boston or other place, and then they would be left until wanted. The first raft was put in October 3, 1884. That was there in May, 1885. There were 3,000,000 feet there that winter. We had no logs at Burlington in winter of 1885. We have used the harbor for nine years. We could keep logs there safer than at Burlington, and with less expense. Corporation did not own the land. It leased shore privileges; that is, we pay something, rather than have bother or trouble, to those who own the land, same as if we used a wharf. We have been renting shore privileges several years. The right to tie rafts on his shore was rented of Prentiss. The corporation had E. L. Willitts employed to look after logs, and see that none got away. When we wanted logs, we sent after them by steamer. Willitts was the only man we had employed, or that had charge of them there.

Edward L. Willitts testified: ‘I was in the employ of the Burlington Lumber Company in the fall, winter, and spring of 1884 and 1885. Was employed by the month to keep logs afloat, and see that none got away. Got $50 per month. I know the situation of the logs that winter and spring. There were four rafts, and about 750,000 feet in each. Cross-examined. I have been employed five years to look after all rafts. I give receipt to boat, deliver to boat, and take receipt. I have control while there. I had moved them across slough to keep them afloat. The Burlington Lumber Company put a raft in Sturgeon bay on the first of May. Part of it is there yet.’

It is claimed that the property in question, under the evidence, was in transitu, and therefore not taxable in this state. It is a plain proposition that property in course of transportation from one state to another over one of our navigable rivers, or over any of the public highways of the country, is not liable to taxation, as it passes over such highway, by the state authorities along the line of such highway, and we think it is equally clear that if property, while in the course of transportation over one of our navigable rivers, should be detainedby low water or ice or other cause, it would not be liable to be taxed by the authorities where the detention occurred. Any other rule would have a direct tendency to obstruct commerce between states, which, of course, could not be done under our system of laws.

But the question here presented is whether the property, when assessed, was in course of transportation over a public highway. We have given the evidence bearing upon this point that consideration which the importance of the question demands, and we have reached the conclusion that the property was not in transitu. For nine years the complainant had used the harbor at New Boston as a place of safety for depositing logs during the winter. Land along the shore had been leased where the property was anchored, and a man employed, who was placed in the possession of the property. At the time the boats started from Wisconsin with the rafts, to convey them down the river, the destination of the property had not been determined by the company; but, after departure, as stated by the vice-president in his evidence, the boats were then instructed to leave a part of the rafts at New Boston, and there they would remain until wanted at the mill in Burlington, when a steamer would be sent for them. Now Boston harbor or Sturgeon bay, as it is usually called,...