Mail v. Maxwell

• Decision Date: 16 November 1883
• Citation: 107 Ill. 554,1883 WL 10334
• Parties: ISAAC D. MAIL, County Collector,v.GEORGE H. MAXWELL et al.
• Court: Illinois Supreme Court

107 Ill. 554

1883 WL 10334 (Ill.)

ISAAC D. MAIL, County Collector,

v.GEORGE H. MAXWELL et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Nov. 16, 1883.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Crawford county; the Hon. FRANKLIN ROBB, Judge, presiding.

On January 8, 1876, bonds, purporting to be the bonds of the town of Honey Creek, in Crawford county, Illinois, were issued to the Paris and Danville Railroad Company, to the amount of $15,000, payable, on their face, at a future day, with interest from October 11, 1875, at the rate of ten per cent per annum, payable annually on January 1 of each year, with interest coupons attached. These bonds were duly registered in the office of the Auditor of Public Accounts. At the March term, 1881, in the circuit court of Crawford county, in a suit in which Maxwell and other tax-payers and residents of the town of Honey Creek were complainants, and in which the county treasurer and collector of Crawford county and the town collector of the town of Honey Creek were defendants, a decree was entered, in obedience to the mandate of the Appellate Court for the Fourth District, by which the bonds in question were adjudged void, and a perpetual injunction ordered enjoining the county collector and the town collector, and their successors in office, among other things, from collecting from complainants, or either of them, any taxes levied upon the real estate of either of them, for the payment of interest upon any of the bonds mentioned. None of the bondholders seem to have been made parties to this proceeding.

On March 4, 1882, one Preston, a citizen of Louisiana, recovered a judgment against the town of Honey Creek, in the Circuit Court of the United States for the Southern District of Illinois, (in which Crawford county lies,) upon certain coupons of these bonds, for the sum of $1276.36, and on April 19, 1882, presented to that court a petition for a mandamus against the county collector of Crawford county. This petition was answered by the collector, and on demurrer to the answer by the petitioner, the court held the answer insufficient, on May 1, 1882, and ordered the writ to issue, and on May 3, 1882, a writ of mandamus was issued, under the seal of that court, reciting the filing of the petition, answer and demurrer, and the judgment of the court, and in obedience to that recited judgment commanding the county collector forthwith to proceed, as required by the statutes of Illinois, to collect all taxes assessed, levied and extended within and for the town of Honey Creek, now due and unpaid, against the owners of real estate and personal property therein, for the payment of interest due and to accrue on the bonds in question, for the year 1881 and prior years, appearing upon his tax warrant, “as well all such taxes returned as enjoined tax, as all such taxes as have been returned as delinquent, and to that end” to levy the same by distress and sale of personal property, etc., and that he “do, without delay, include in the advertisement now being made by him as such collector, giving notice of the intended application for judgment for sale of such said delinquent lands and lots so returned to him by the town collector of the town of Honey Creek, all the lands and lots against which any of said bond interest tax * * * now stands assessed and due,” and after having so advertised, etc., that he do include in his application for judgment and order of sale for taxes on delinquent lands and lots, at the approaching term of the county court of his county, and obtain judgment; and after he shall so obtain judgment as aforesaid, he shall proceed to sell, etc., until such taxes shall have been collected and returned to the authorities in the statutes provided. These lands were embraced in the delinquent list for 1881, and were advertised as chargeable with taxes for the payment of interest on railroad bonds, in two columns of figures,--one column headed “Enjoined Tax,” and the other “T. R. R. Tax.” The figures in the first column were intended to represent back taxes of prior years, and the figures in the second column intended to represent the tax for the year 1881, against the several tracts. The amounts in each column were for the payment of interest upon these railroad bonds.

The delinquent list, in that condition, was brought before the county court by the collector in the usual mode, and he asked for judgment against the lands, etc., for the payment of these taxes, which application was resisted by Maxwell and other land owners who were parties to the decree in the State court. The county court, after hearing evidence, refused to render judgment in that regard against the lands, and from this judgment of the county court the county collector appeals to this court, and insists that the county court erred in refusing to render judgment charging these lands with this railroad tax. On the hearing in the county court it was proven that Preston's judgment had been paid in full. Other facts are stated in the opinion of the court.

Messrs. CALLAHAN & JONES, for the appellant:

The mandate of the Circuit Court of the United States is not affected by an injunction of the State courts. High on Extraordinary Legal Remedies, p. 287, sec. 398.

The question of the validity of the bonds having been settled in the Federal court, can not be inquired into here. Ibid. p. 268, sec. 280; p. 283, sec. 396.

It is not necessary to obtain judgment before collecting money to pay the interest. Ibid. sec. 384.

Messrs. MAXWELL & ALLEN, and Messrs. PARKER & CROWLEY, for the appellees:

The bonds have been adjudged void for non-compliance with the conditions of the vote of the people. Parker et al. v. Smith et al. 3 Bradw. 356.

The county court should not order appellant to do the very thing he was enjoined by another court from doing. He should have seen that the injunction was dissolved before making his application for judgment.

Where a court of competent jurisdiction enjoins the collection of a tax, the matter should remain at rest until the injunction is dissolved in due form of law.

An excess of taxation is illegal and void. Ramsey v. Hœger, 76 Ill. 432; Thatcher v. People ex rel. 93 Id. 243; Mix v. People, 72 Id. 241.

In this case there is an apparent conflict of authority between the State and Federal courts,--the one enjoining a certain thing not to be done, the other ordering it to be done. If this be true, then the rule, as we understand it, is, that the court that first obtained jurisdiction of the matter will retain it. Under this rule, the State court having obtained jurisdiction of the case in 1879, and the Federal court in 1881, the former must retain control, and hence the injunction must be obeyed until dissolved by a court in review. The authority (High on Extraordinary Legal Remedies, sec. 395,...