McChesney v. People ex rel. Kochersperger

• Decision Date: 18 June 1898
• Citation: 174 Ill. 46,50 N.E. 1110
• Parties: McCHESNEY v. PEOPLE ex rel. KOCHERSPERGER, County Treasurer.
• Court: Illinois Supreme Court

174 Ill. 46

50 N.E. 1110

McCHESNEY

v.PEOPLE ex rel. KOCHERSPERGER, County Treasurer.

Supreme Court of Illinois.

June 18, 1898.

Appeal from Cook county court; O. N. Carter, Judge.

Application, on the relation of D. H. Kochersperger, treasurer and ex officio collector of Cook county, for judgment of sale against certain delinquent lands and lots. From a judgment in favor of relator, A. B. McChesney appeals. Reversed.F. W. Becker, for appellant.

Charles S. Thornton, Corp. Counsel, and John A. May, for appellee.

CARTWRIGHT, J.

On application by the county collector of Cook county for judgment against delinquent lands and lots, appellant entered a special appearance for the purpose of questioning the jurisdiction of the court, and filed objections challengingthe sufficiency of the notice by publication, the certificate of such publication, the filing of the delinquent list and the collector's report. The same objections were made as each item of evidence to sustain the jurisdiction was offered, and they were overruled, after which the court overruled the objections filed, and entered judgment. The certificate of publication admitted in evidence is in the words and figures following:

‘State of Illinois, County of Cook-ss.: I, William Penn Nixon, publisher of the Inter-Ocean, do hereby certify that the foregoing list of lands and lots contained in the newspaper known as the Inter-Ocean, to which this certificate is attached, is a list of all the delinquent lands and lots upon which remains due and unpaid the taxes levied and assessed for the year 1896, etc., and also a list of the delinquent lands and lots upon which remains due and unpaid special assessments and special taxes levied and assessed by the following corporate authorities [describing them], with notices hereto attached, were published and advertised once in the Inter-Ocean, a newspaper printed and published in the county of Cook and state of Illinois; and the whole of said advertisement was contained in one edition of said newspaper, being a newspaper of general circulation throughout said county, and the date of the newspaper containing the same was the 18th day of June, A. D. 1897, etc. In witness whereof I have hereunto set my hand this 18th day of June, 1897. William Penn Nixon.

‘State of Illinois, County of Cook-ss.: Subscribed and affirmed to before me this 18th day of June, A. D. 1897. Fred W. Uhl, Notary Public. [Seal.]’

This certificate is unintelligible. There is no subject of the verbs ‘were published and advertised.’ The person making the certificate states what the list is, with notices thereto attached, but wholly fails to say what was published, and no presumption can be indulged in for the purpose of supplying the omission of the certificate. No other evidence of publication was offered.

The certificate is also defective in failing to certify to the relation of the person making it to the newspaper. Section 186 of the revenue act requires a certificate under oath by the printer, publisher, or financial officer or agent of the newspaper publishing the list. Courts do not take judicial notice who are the publishers of newspapers; and no proof was offered, outside of the certificate, that William Penn Nixon was publisher of the Inter-Ocean. The statute means that the fact shall be sworn to, and the recital or description of the person making the certificate as publisher of the Inter-Ocean was no part of his declaration. Perjury could not be assigned upon the affidavit in that respect, as he does not certify to the fact. No presumption is to be indulged in, but the fact must affirmatively appear. Haywood v. Collins, 60 Ill. 328. In Steinbach v. Leese, 27 Cal. 295, an affidavit of publication, required to be made by the printer, his foreman or principal clerk, describes the person making it as principal clerk in like manner with the description here, and the court said: ‘That affiant is one of the three is itself a substantive fact, and must be proved as such before the court in which the action is pending can proceed to render judgment against the parties to whom notice is intended to be given. In the affidavit now in question the affiant swears to nothing except to the matters set forth after the word ‘deposes.’ He names himself as principal clerk, but he does not swear that that was his position in fact.' The certificate must be under oath, and all the requisite facts must be certified to, and the certificate was insufficient. Pentzel v. Squire, 161 Ill. 346, 43 N. E. 1064;Hill v. Hoover, 5 Wis. 354;Iverslie v. Spaulding, 32 Wis. 394;Miller v. Railroad Co., 58 Wis. 310, 17 N. W. 130.

In an order made before the hearing, requiring parties interested to file objections by a time fixed, the court recited that due notice as required by law had been given of the application for judgment. The bill of exceptions, on the contrary, shows that all the evidence upon which ...