Gage v. Graham

• Decision Date: 30 September 1870
• Parties: ASAHEL GAGE et al.v.CHARLES GRAHAM et al.
• Court: Illinois Supreme Court

57 Ill. 144

1870 WL 6596 (Ill.)

ASAHEL GAGE et al.

v.CHARLES GRAHAM et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion states the case.

Mr. EDWARD ROBY, for the appellants.

Mr. JOHN P. WILSON, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit in equity, brought by appellees, in the Superior Court of Chicago, against appellants, to enjoin the issuing of tax deeds upon certificates of sale of real estate, for taxes, by the collector of Cook county, for the amount of certain special assessments, levied by the Cook County Drainage Commissioners, a corporation created by an act of the general assembly, adopted in 1852, (Sess. laws, 240). No answer having been filed, the bill was taken as confessed, and evidence heard, and the court found the facts charged in the bill to be true. The bill alleges as one of the grounds of relief, that there was a combination entered into before the sale between the principal bidders and the collector, to prevent competition at the sale, and that the property should be struck off to Waterman as the purchaser, for the sums charged against the respective tracts; that, by reason of this combination, bidding on this property was wholly prevented; that Waterman became the purchaser in pursuance of the agreement, and parceled out the certificates among those entering into the arrangement, and endorsed them in blank.

It is charged that Gage and Forsythe thus became and are still the holders of these certificates; that the amount of taxes for which the lands were sold, was a fraud upon the law, upon the owner, and is against public policy; that the collector had issued certificates of purchase in violation of law, fair on their face, thus enabling the holder, by endorsement, to sell them to innocent purchasers, and thus create a cloud on appellees' title, leading to litigation, cost and expense.

By issuing these certificates the same wrong was done as if the officer, without notice, judgment or any public sale, had issued them, inasmuch as no money had been paid, and they were issued without legal authority. Under the authority of the cases referred to in the brief, the court had the power to enjoin the execution of a deed on these certificates, and on the facts charged in the bill and confessed by the default, it was its duty to render the decree.

But there is another objection in this case that is fatal to the tax. It is, that the law under which it is levied is repugnant to the constitution. In the case of Harward v. The St. Clair & Monroe Levee & Drainage Company, 51 Ill. 130, it was held, that sec. 5 of art. 9 of the constitution of 1848, was a limitation upon the power of the legislature to delegate the right of corporate or local taxation to any other than the corporate local authorities, and by the phrase “corporate...