Fowler v. Edward R. Pirkins.

• Decision Date: 31 January 1875
• Parties: EDWIN S. FOWLERv.EDWARD R. PIRKINS.
• Court: Illinois Supreme Court

77 Ill. 271

1875 WL 8303 (Ill.)

EDWIN S. FOWLER

v.EDWARD R. PIRKINS.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon CHARLES S. ZANE, Judge, presiding.

This was an application by the appellee, as county collector of Sangamon county, to obtain judgment against certain lands for taxes. The appellant filed objections to the rendition of judgment against his lands, which were overruled, and judgment rendered. He thereupon removed the case to the circuit court by appeal. The latter court dismissed his appeal, and from that order this appeal is prosecuted.

Mr. N. M. BROADWELL, for the appellant.

Mr. L. F. HAMILTON, State's Attorney, and Mr. JAMES A. KENNEDY, City Attorney, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Under the Revenue law of 1872, as amended by the act of 1873, appellee, who was collector of taxes, made an application to the county court of Sangamon county, at the May term, 1874, for judgment for the taxes due on delinquent lands. Appellant filed objections, in writing, to any judgment against lands owned by him, but the same were overruled, and judgment rendered. An appeal was taken at the same term the judgment was pronounced, to the circuit court of the county, under the statute then in force. At the October term of the circuit court next ensuing, on motion of appellee, the appeal was dismissed, on the ground the court had no jurisdiction to entertain the appeal, the law under which it was taken having, in the meantime, been repealed, by the act in force July 1, 1874. That decision is assigned for error.

By section 192 of the Revenue law of 1872, as amended by the act of 1873, an appeal is given in this class of cases to the circuit court of the proper county. R. S. 1874, p. 890.

But section 123 of the act in force July 1, 1874, entitled “County Courts,” provides, “Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court to the Supreme Court, in proceedings for the sale of land for taxes and special assessments, and on the application of executors, administrators, guardians and conservators for the sale of real estate.” R. S. 1874, p. 344.

It is contended this latter section repeals the former, and, notwithstanding the appeal in this case was taken and perfected before the act of 1874 took effect, and while the former act was in force, it is insisted, the law in the meantime having been repealed, the appeal could not be maintained.

The action of the circuit court is based on a misapprehension of the effect of the 123d section of the act of 1874. If the 192d section of the Revenue law has been repealed at all, it must be by implication. It has not been done by any express statute, and the legislature has manifested no intention to repeal it. The act of 1874, which it is claimed effects the repeal, was not a revision or a recasting of the Revenue law, but is an act in relation to county courts. The words used in both acts, providing for the appeal, are, “may be taken.” It is claimed, the word “may” shall be read “shall,” and hence, it is insisted, the statute of 1874 is peremptory, the appeal shall be taken directly to the Supreme Court.

The words “may” or “shall,” when used in a statute, may be read interchangeably, as will best express the legislative intention. The rule adopted by this court is, “the word may means must or shall, only in cases where public interests and rights are concerned, and the public or third persons have a claim de jure that the power shall be exercised.” Schuyler County v. Mercer County, 4 Gilm. 20. And so, on the other hand, the word ““shall,” if any right to any one depends upon giving it an imperative construction, the presumption...