Hoefer v. Chicago G.W.R. Co.

• Citation: 279 Ill. 176,116 N.E. 664
• Decision Date: 21 June 1917
• Docket Number: No. 11339.,11339.
• Parties: PEOPLE ex rel. HOEFER, County Collector, v. CHICAGO G. W. R. CO.
• Court: Supreme Court of Illinois

279 Ill. 176

116 N.E. 664

PEOPLE ex rel. HOEFER, County Collector,

v.CHICAGO G. W. R. CO.

No. 11339.

Supreme Court of Illinois.

June 21, 1917.

Error to Stephenson County Court; R. J. Carnahan, Judge.

Application for judgment and order of sale for delinquent taxes by the People, on the relation of Simon Hoefer, County Collector, against the Chicago Great Western Railroad Company, Judgment overruling objections of defendant, and it brings error. Reversed in part and remanded.Douglas Pattison, of Freeport (John Barton Payne, of Chicago, of counsel), for plaintiff in error.

Charles H. Green, State's Atty., of Freeport, for defendant in error.

CRAIG, J.

This is a writ of error to review the judgment of the county court of Stephenson county overruling certain objections of plaintiff in error to the application for judgment and order of sale for certain delinquent taxes for the year 1914 levied and assessed against its property in that county. The taxes involved are the road and bridge taxes for the towns of Ridott, Florence, Silver Creek, Loran, and Kent, in that county, and that portion of the county tax levied for the purpose of raising funds for the payment of the salary of the state's attorney. The objection urged to the road and bridge taxes of the towns in question is that the town clerks' records fail to show that the commissioners of highways of such towns held the two meeting required by sections 50 and 56 of the Road and Bridge Act-one meeting between the first Tuesday in August and the first Tuesday in September, and the other on the first Tuesday in September. The objection to the county tax is that the portion levied for salary of the state's attorney makes no allowance for the $400 paid by the state or the amount received from fines, fees, and forfeitures collected by such officer.

The record of the town clerk of Ridott township shows a meeting of the commissioners of highways was held on August 2, 1914, at which it was ‘talked that the levy for the coming year would have to be in full as prescribed by law, sixty-one cents on every $100 for roads and bridges,’ and that on August 29th a meeting was called for levying the road and bridge tax for the year 1915, at which it was voted to levy 61 cents on the $100. There is no record of any meeting on September 1, 1914, the first Tuesday in that month, although there is a record of other meetings held on September 3d and September 8th, respectively, which contains nothing with respect to the levying of a tax for roads and bridges or any other purpose. The record of the town clerk of Florence township, as appears from the testimony of the clerk, contains no entry or record of any meeting of the highway commissioner held in August or September of 1914, nor was any other book produced which is claimed to have been kept under or by authority of the town clerk, containing any record of such meetings. In each instance, however, a proper certificate was made out by the commissioners under date of September[279 Ill. 179]1, 1914, and transmitted to the county clerk, certifying the amount necessary to be raised for road and bridge purposes. In People v. Toledo, St. Louis & Western R. Co., 266 Ill. 122, 107 N. E. 227, we held the provisions of sections 50 and 56 of the Road and Bridge Law were mandatory and that a failure to hold such meetings would render the tax levied void; also, that the meeting therein specified to be held on the first Tuesday in September must be held on such date, and that a construction which would permit such meeting to be held at some other time would, in effect, deny to persons interested the right to appear and be heard as to the justice of such proposed tax levy. In the more recent case of People v. Chicago, Burlington & Quincy R. Co., 273 Ill. 110, 112 N. E. 278, we held that it was the duty of the town clerk to keep a record of such meetings and that the action of the commissioners could only be shown by such record; that, when it was shown that there was no record of such meetings in the record book of such town, it established a prima facie case of the invalidity of such tax, which could only be overcome by proving that such meetings were held and amending the record to show such fact, or the production of another record book of the town containing a record of such meetings. In People v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 271 Ill. 226, 110 N. E. 843 we held that the fact such meetings were held could not be established by the oral testimony of the clerk, although it was competent to show such fact by him for the purpose of amending his record.

In this case the records of the town clerks fail to show that the meetings were held. For this reason the objections to the tax in Ridott and Florence townships should have been sustained.

The record of the town clerk of Silver Creek township shows a meeting of the highway commissioners on August 29, 1914, at which it was determined to raise $6,000, or a rate of 61 per cent. on the $100, and another meeting on September 1st, at which the commissioners adopted the levy made August 29th and certified that they required that there be raised by taxation for the proper construction, maintenance, and repair of roads and bridges the sum of $6,000. It is insisted the record of this meeting is insufficient for the reason it does not state the purpose of the tax to be raised, and that the clerk, in writing up the minutes of this meeting, used the words ‘per cent.,’ instead of ‘cents,’ as indicating the rate determined upon. The statute does not require that the commissioners shall do more at this meeting than determine ‘the tax rate to be certified by them’ to the county board. Hurd's Stat. 1916, chap. 121, § 50. It does not require that they shall determine the amount of tax to be raised or the purpose for which the tax is levied. The record shows that everything was done at this meeting that the...