Jack v. Weiennett

• Citation: 3 N.E. 445,115 Ill. 105
• Parties: JACK and others v. WEIENNETT, County Treasurer, etc.
• Decision Date: 14 November 1885
• Court: Illinois Supreme Court

115 Ill. 105

3 N.E. 445

JACK and others

v.WEIENNETT, County Treasurer, etc.

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from county court, Peoria county.

Wm. Jack and Leslie D. Puterbaugh, for appellants.

John M. Niehaus, for appellee.

SCHOLFIELD, J.

The main controversy here is whether creditors, in case of assignment under our insolvent laws, acquire such vested right in the property assigned that it cannot be thereafter taken or appropriated for the payment of taxes levied before that time, but which had not then become a lien on the property assigned. If a claim for taxes is but an ordinary debt, creating the relation of debtor and creditor, the question must be answered in the affirmative, for all creditors, under the statute relating to insolvency, must share pro rata under the assignment. But such a claim is not a debt within that sense. Cooley says: ‘Taxes are defined as being the enforced personal contribution of persons and property, levied by the authority of the state for the support of the government, and for all public needs. They are the property of the citizen, demanded and received by the government, to be disposed of to enable it to carry into effect its mandates, and to discharge its manifold functions.’ And, again, he says: ‘In an exercise of the power to tax, the purpose always is that a common burden shall be sustained by common contributions, regulated by some fixed general rule, and apportioned by the law according to some uniform ratio of equality.’ Cooley, Tax'n, 1, 2. See, also, Blackw. Tax Titles, 7; Op. Judges, 58 Me. 591;Shreveport v. Gregg, 28 La. Ann. 836.

A creditor has no right to distrain and sell property. He must first get a judgment and an execution. But the state, because of the importance and urgency of its claim, is not required to wait for a judgment. If a tax due is not paid on demand, the collector may proceed to seize property and sell it for its payment. See Cooley, Tax'n, 298-301. Before property can be protected, and the rights of creditors enforced, the state must have the means of subsistence. It cannot perform its functions without them, and they can only be obtained through some system of taxation. The claim for the payment of taxes upon the citizen is, therefore, of necessity, paramount to all other claims against his property. Our constitution, moreover, requires that the general assembly shall provide such revenue as shall be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to his, her, or its property. Section 1, art. 9. To the enforcement of this provision it is obviously indispensable that the tax shall have priority in right of payment over individual debts. In Dunlap v. Gallatin Co., 15 Ill. 7, the court held that the claim of the county for taxes is entitled to priority over individual debts. And the following from the language of the opinion in discussing that question is quite pertinent here:

‘The claim of the county ( i. e., for taxes) does not stand on the same footing with the other indebtedness of the bank. It is entitled to priority in payment. A tax is not an ordinary debt. It is levied for the support of government, and takes precedence of all other demands against the owner. It is a charge upon the property, without reference to the matter of ownership. The property itself may be seized and sold, although there may be prior liens upon it. The estate of a deceased person is primarily liable for the taxes that may be due from it. The state is not bound to wait until the estate is administered, and then participate with the creditors in the distribution of the proceeds. It may enforce payment to the exclusion of all other creditors. And so of an insolvent estate in the hands of trustees, under a compulsory or voluntary assignment. In this case, the property passed to the assignees for the benefit of the creditors of the bank. It became a common fund for the payment of their debts. But the assignees acquired the same subject to the right of the statute to charge it with taxes. The creditors likewise acquired interests therein subordinate to the right of taxation. They are only entitled to the surplus that may remain after the payment of the taxes, and the necessary expenses of administering the assignment.’

The same principle is referred to with approval in the subsequent case of Dennis v. Maynard, 15 Ill. 477. The assignment simply placed the...