Kelly v. Jones

• Citation: 125 N.E. 334,290 Ill. 375
• Decision Date: 17 December 1919
• Docket Number: No. 13022.,13022.
• Parties: KELLY v. JONES.
• Court: Supreme Court of Illinois

290 Ill. 375

125 N.E. 334

KELLY

v.JONES.

No. 13022.

Supreme Court of Illinois.

Dec. 17, 1919.

Suit by Joseph A. Kelly against Benjamin D. Jones. From decree dismissing the bill, plaintiff appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Will County; Arthur W. De Selm, judge.

George Warner Young, of Joliet, for appellant.

Robert W. Martin, of Joliet, for appellee.

CARTWRIGHT, J.

The appellant, Joseph A. Kelly, a resident of Joliet, in Will county, in 1918 returned to the township assessor a schedule of personal property amounting to $405, not includingany shares of capital stock. He was notified by the board of review to appear and show cause why his assessment should not be increased. A hearing was had on September 5, 1918, and the board assessed him on 20 shares of Republic Iron & Steel Company preferred stock, 40 shares of United States Steel Company preferred stock, 93 shares of Corn Products Refining Company common stock, 50 shares of Sears, Roebuck & Co. preferred stock, for the years 1914, 1915, 1916, 1917, and 1918, and also 50 shares of Columbia Gas & Electric Company stock for the year 1918. The various shares of stock were not valued separately, but a value was placed on all as a total for each year, making a final assessment of $14,175 cash value for the whole. The assessment was returned by the board of review as an assessment of omitted property, and a tax having been extended on the assessment, the appellee, Benjamin D. Jones, as collector, demanded of the appellant payment of the taxes. Thereupon the appellant filed his bill in this case in the circuit court of Will county to enjoin the collection of the tax, alleging that he did not own the shares of stock on the 1st day of April of any year for which he was assessed, except the shares of the Columbia Gas & Electric Company, which he owned in 1918. He offered to pay taxes on the assessment of 1918 on the Columbia Gas & Electric Company stock if the court could determine the amount of such tax, but alleged that it was impossible to separate the tax levied upon property owned by him from the tax on property which he did not own, so as to determine the amount justly due. He prayed for an injunction restraining the collection of the tax, and a temporary injunction was issued. The bill was answered by the appellee admitting the assessment as charged, but denying the ground of relief alleged, and upon a hearing the bill was dismissed for want of equity.

Taxing authorities cannot arbitrarily assess a person on property he does not own, and the proper remedy to preventthe collection of a tax levied on such an assessment is in equity by bill for injunction. Weber v. Baird, 208 Ill. 209, 70 N. E. 231;Duckett v. Gerig, 223 Ill. 284, 79 N. E. 94;Bates v. Parker, 227 Ill. 120, 81 N. E. 334. Upon an issue of that kind the presumption is that the tax is just and lawful, and the objector assumes the burden of showing its invalidity. People v. Keener, 194 Ill. 16, 61 N. E. 1069;Tolman v. Raymond, 202 Ill. 197, 66 N. E. 1086;People v. Hulin, 237 Ill. 122, 86 N. E. 666;People v. Martin, 283 Ill. 380, 119 N. E. 296. The complainant was the only witness at the hearing concerning the ownership of the shares of capital stock assessed to him. He testified that at one time he owned the 20 shares of Republic Iron & Steel Company preferred stock, the 40 shares of United States Steel Company preferred stock, and 50 shares of Sears, Roebuck & Co. preferred stock, but that he sold all of them before April 1, 1914, to raise money to go into the Joliet Trust & Savings Bank, the Woodruff Building, and the Joliet Pure Ice Company, business enterprises at Joliet; that he sold the United States Steel Company preferred stock some time in February, 1914, and had a memorandum of that, as it was sold on account of his daughters and he gave them credit for half of it, but as to the other shares he had no memorandum when he bought or sold them. As to those stocks he testified generally that he had no data to go by; that he went into the Woodruff Building in 1910, and the last stock he bought in the Pure Ice Company was in 1912. He had alleged in his bill that the only stock he had owned since 1914 was the shares of Columbia Gas & Electric Company, but said that was a mistake, and admitted that he had owned 93 shares of Corn Products Refining Company at one time; that he had bought and sold shares of that stock several times, but he could not tell when he bought that stock and had no dates to guide him. He was uncertain about the dates, but said that he did not own that stock during the whole five-year period from 1914 to 1918. He could not give any dates or details of transactions concerning that stock, and his testimony was not so clear and explicit as to overcome the presumption of the validity of the tax on that stock.

The reason alleged for sustaining the decree is that the chancellor did not believe the complainant, and it is evident...