Chicago & N.W. Ry. Co. v. People ex rel. McKee

• Decision Date: 18 June 1898
• Citation: 50 N.E. 1057,174 Ill. 80
• Court: Illinois Supreme Court
• Parties: CHICAGO & N. W. RY. CO. v. PEOPLE ex rel. McKEE, County Treasurer.

174 Ill. 80

50 N.E. 1057

CHICAGO & N. W. RY. CO.

v.PEOPLE ex rel. McKEE, County Treasurer.

Supreme Court of Illinois.

June 18, 1898.

Appeal from Dupage county court; John H. Batten, Judge.

Application by the people on the relation of James W. McKee, county treasurer and ex officio tax collector of Dupage county, for a delinquent tax judgment against the Chicago & Northwestern Railway Company. Judgment for relator, and the company appeals. Affirmed.A. W. Pulver (E. E. Osborn and Lioyd W. Bowers, of counsel), for appellant.

Mazzini Slusser, State's Atty. (Leonard E. De Wolf, of counsel), for town of Milton.

WILKIN, J.

This is an appeal from a judgment rendered in the county court of Dupage county against the Chicago & Northwestern Railway Company, for delinquent taxes levied against its property in the towns of Milton, Wayne, and Winfield, in that county. Upon the application of the county collector for judgment, the company filed certain objections, which were overruled, and judgments entered as prayed. The objector appeals.

It is first contended on the part of the appellant that its property in the town of Milton was not properly listed for a road tax included in the assessment by the highway commissioners, because the valuation of the railway property to be taxed, and the amount of the tax, were not apportioned among the several road districts in the town, but its whole property placed upon one separate list; and hence the levy of that tax is illegal, being contrary to sections 83, 84, et seq., c. 121, Rev. St. (page 3587, 3 Starr & C. Ann. St. [2d Ed.]). That it is unnecessary, under a proper construction of the provisions of the statute referred to, to distribute the valuation of the railway track, and the amount of taxes, according to road districts, was decided in the case of Ohio & M. Ry. Co. v. People, 119 Ill. 207, 10 N. E. 545. No claim is made that the tax upon appellant's property has been in any way increased by the manner of apportioning the same. The controlling question here is whether a list was actually made showing the tax against appellant's property, and that fact sufficiently appears from the record.

It is also objected that the list extending the tax in the said town was not signed by all of the highway commissioners. We do not understand it to be necessary to the validity of the tax that all should sign the road tax list. To so hold would make it impossible for a majority of the commissioners to transact the business of the town. Here a majority of them did sign the list, and that was all that was necessary.

It is further claimed that there is no oath of delinquency to the lists for the town of Milton, as required by the statute. No attempt was made to show that the tax had been paid. The affidavit is not jurisdictional. What was said in the case of Wabash R. Co. v. People, 138 Ill. 316, 28 N. E. 57, applies with equal force to this and each of the other foregoing objections, viz.: ‘The jurisdictional facts are the levy of the tax, and the failure to pay it by the person lawfully charged. The defaulting taxpayer is not interested in the affidavit. He may show that the tax has in fact been paid; but, if he shall not do so, it does not concern him that the proper authorities have acted upon less or different evidence in that respect than they might have required.’ The most that can be said here is that the matters pointed out by appellant in its objections are mere irregularities, which do not affect the substantial justice of the tax itself, and hence do not vitiate the levy. See section 191 of the revenue act (Rev. St. c. 120; 3 Starr & C. Ann. St. [2d Ed.] p. 3471).

The next contention is that the town tax, levied against the property of appellant in the town of Wayne, is illegal. It appears that, upon the hearing, the town clerk, at the instance of appellant, produced in evidence the transcript of that which purported to be the record of a meeting of the board of highway commissioners of the town of Wayne, at which (as appears from the transcript) the board proceeded to certify the amount of taxes necessary for town purposes; and it is insisted that the levy for town taxes cannot be made in this manner, i. e. by the commissioners of highways. This proposition is not denied. Appellee contends, however, that it does not appear from the record in this...