Carney v. People

• Decision Date: 23 June 1904
• Citation: Carney v. People, 210 Ill. 434, 71 N.E. 365 (Ill. 1904)
• Parties: CARNEY v. PEOPLE.
• Court: Illinois Supreme Court

210 Ill. 434

71 N.E. 365

CARNEY

v.PEOPLE.

Supreme Court of Illinois.

June 23, 1904.

Appeal from Circuit Court, Cook County; F. A. Smith, Judge.

Action by the people against William J. Carney. From a judgment for plaintiff, defendant appeals. Reversed.

Newman, Northrup, Levinson & Becker, and Wilson, Moore & McIlvaine, for appellant.

James H. Wilkerson, Co. Atty., William F. Struckmann, Asst. Co. Atty., and Frank L. Shepard, for the People.

CARTWRIGHT, J.

This is an action of debt brought by the people of the state of Illinois against William J. Carney, under section 230 of the revenue act (Hurd's Rev. St. 1899, p. 1433, c. 120), to recover taxes alleged to be due and unpaid upon an assessment of his personal property for the year 1899. The declaration alleged an indebtedness of $507.20 for general taxes levied against defendant upon an assessment of his personal property in the town of South Chicago, and averred that the defendant on the 1st day of April, 1899, and for a long time prior thereto, was a resident of said town, and was the owner of, and had therein in his possession and control, personal property there subject to assessment for the purpose of taxation. A plea of nil debet was filed, and the issue was submitted to a jury, resulting in a verdict for the amount of the taxes. The court, after overruling motions for a new trial and in arrest of judgment, entered judgment on the verdict.

At the close of all the evidence the defendant asked the court to instruct the jury to return a verdict in his favor, but the court denied the motion, and that ruling presents all the material questions in the case.

The evidence on the part of the plaintiff consisted of the warrant issued by the county clerk of Cook county to the collector of the town of South Chicago for the collection of taxes extended upon an assessment against the property of W. J. Carney & Co.; the return of said town collector of said taxes as delinquent, showing that they remained unpaid; the testimony of the witness who produced and identified the warrant and return that the taxes had never been paid, but that he had no knowledge that they were due and unpaid, except what the book containing the return showed, or, in other words, that the book showed they were unpaid; and evidence that the defendant was doing a lumber commission business in the town of South Chicago under the name of W. J. Carney & Co. It was stipulated that the assessment was an original one made by the board of review against W. J. Carney & Co., doing business at 244 South Water street, in Chicago, on a valuation of $40,000 and an assessed value of $8,000. It was proved on the part of the defendant, and not disputed, that he resided in the town of Hyde Park, in Cook county, on and prior to April 1, 1899; that he was assessed on property there valued at $2,000, the assessed value being $400; that he paid the taxes levied thereon to the town collector; and that he had no notice from the board of review relating to his assessment for that year, or an increase of the same.

The court held that the return of the town collector was made prima facie evidence that the taxes were due and unpaid by the section of the statute under which the suit was brought. This was an error. That section provides that the return of the county collector that taxes are delinquent shall be prima facie evidence that they are due and unpaid, but the fact may be proved by other competent testimony. Section 169 provides for a return by the town collector, with a detailed statement of the taxes he has been unable to collect, and section 181 provides that county collectors shall then have the same powers and proceed in the same manner with the collection of taxes on real or personal property as the town collector. Section 144 provides that the county treasurer shall be ex officio county collector, and section 231 provides for a return by the county collector to the county clerk, with a statement in writing setting forth in detail the name of each person charged with a personal property tax which he has been unable to collect. The taxes are finally delinquent when the county collector has failed to collect them by some of the methods provided by the statute, and it is his return that is made prima facie evidence that the taxes are due and unpaid. The testimony of the witness from the county treasurer's office added nothing to the book, as what it showed was apparent without his testimony. If the return of the county collector is not in evidence, the liability may be shown by proving the assessment, the extension of the taxes, and their nonpayment. Ottawa Gaslight Co. v. People, 138 Ill. 336, 27 N. E. 924. The evidence was not legally sufficient to authorize a judgment. In the cases of Carrington v. People, 195 Ill. 484, 63 N. E. 163, and Elmwood Cemetery Co. v. People, 204 Ill. 468, 68 N. E. 500, the suits were for taxes on property forfeited to the state for want of bidders, and a different provision of section 230 was applicable.

The declaration averred that the defendant resided in the town of South Chicago, and that he had the property there subject to taxation, while the proofs showed that he resided in the town of Hyde Park. The liability for taxes is stautory, and the declaration must aver facts which show liability under the statute, and the right of plaintiff to recover. It must state the facts from which the legal liability results as a conclusion of law. People v. Davis, 112 Ill. 272; Ottawa Gaslight Co. v. People, supra. The facts alleged in the declaration would create a legal liability of the defendant to assessment and taxation on his property in the town of South Chicago, as his residence. Personal property is ordinarily to be assessed at the residence of the owner, but it is competent for the Legislature to provide for the assessment of such property where it is located; and section 13 of the revenue act (Hurd's Rev. St. 1899, c. 120, § 307) provides that the personal property of brokers shall be listed and assessed in the town where their business is carried on. The facts proved were that the defendant was a broker in the lumber trade in the town of South Chicago, where he did not reside, and that the property employed in that business was therefore assessable where the business was carried on. There was a clear variance between the declaration and the evidence, and the question was properly raised on the trial. The ruling on that subject was erroneous.

It is also urged that the tax was illegal because the assessment was an increase of the assessment of defendant's property without the notice to him required by section 34 of the act of 1898 for the assessment of property. Hurd's Rev. St. 1899, p. 1452, c. 120, § 328. The assessment was an original one made by the board of review, and the statute does not, in terms, provide for notice in a case of that kind. Defendant was assessed on his individual property in the town of Hyde Park, where he resided, but the assessment was against the firm of W. J. Carney & Co., a brokerage firm in the town of South Chicago. Defendant was engaged in the business of negotiating sales of lumber in the firm name, and was therefore a broker under that name. Braun v. City of Chicago, 110 Ill. 186. The firm name indicated a partnership or an association of individuals. In the case of...