McClusky v. Alton & E.R. Co.

• Decision Date: 21 February 1935
• Docket Number: No. 22838.,22838.
• Citation: 194 N.E. 573,359 Ill. 440
• Parties: PEOPLE ex rel. McCLUSKY, County Collector, v. ALTON & E. R. CO. et al.
• Court: Illinois Supreme Court

359 Ill. 440

194 N.E. 573

PEOPLE ex rel. McCLUSKY, County Collector,

v.ALTON & E. R. CO. et al.

No. 22838.

Supreme Court of Illinois.

Feb. 21, 1935.

Proceedings by the People, on the relation of H. H. McClusky, County Collector, against the Alton & Eastern Railroad Company and another. From an order overruling objections by the defendants to an application for judgment for delinquent taxes, defendants appeal.

Judgment reversed in part, and cause remanded, with directions.

ORR, J., dissenting.Appeal from Jersey County Court; Fred W. Howell, Judge.

Green & Verlie, of Alton, F. A. DuHadway, of Jerseyville, and A. H. Bell, of Carlinville (Karl King Hoagland, of Alton, of counsel), for appellants.

Richard Clyde Chappell, State's Atty., of Jerseyville (G. R. Schwarz, of Jerseyville, of counsel), for appellee.

PER CURIAM.

This cause comes to this court by appeal from an order of the county court of Jersey county overruling objections by the Alton & Eastern Railroad Company and the Illinois Terminal Company, lessee, to an application for judgment for certain taxes alleged to be delinquent for the year 1933.

After the introduction of the people's testimony, appellants filed a motion, under a limited appearance, to dismiss the proceedings on the ground that the court was without jurisdiction. The grounds of the motion are, that the published notice stated that application for judgment would be made to the probate court of Jersey county when there is, in fact, no such court, and that the certificate of the publisher failed to show that the newspaper was one of general circulation in that county for more than six months prior to the publication of the notice. If the objection to the jurisdiction was otherwise valid, it came too late. A general appearance was entered by filing objections to the merits and proceeding to a hearing of the people's testimony. But appellants claim that under paragraph 3 of section 43 of the Civil PracticeAct (Smith-Hurd Ann. St. c. 110, § 167(3) all defenses, whether to the jurisdiction, in abatement, or in bar, may be pleaded together. A sufficient answer is that appellants' defenses were not pleaded together. Moreover, the Civil Practice Act does not apply to proceedings of this character.

Appellants' first objection relates to three items of the levy for county purposes, i. e., ‘County farm, $3,600; heat, light and water, court house and jail, $2,300; State's attorney, $1,625.’ It is urged that the first two items are not sufficiently definite to comply with section 121 of the Revenue Act (Smith-Hurd Ann. St. c. 120, § 109), which requires that, when the sum to be raised for county taxes is for several purposes, the amount for each purpose shall be stated separately. We have repeatedly upheld objections to similar indefinite appropriations. People v. Bowman, 253 Ill. 234,67 N. E. 304;People v. Cairo, Vincennes & Chicago Railway Co., 243 Ill. 217, 90 N. E. 730;People v. Cairo, Vincennes & Chicago Railway Co., 237 Ill. 312, 86 N. E. 721.

The item, ‘State's attorney, $1,625,’ is for the full amount of the state's attorney's salary. The board estimated that the receipts of his office for the taxing year would amount to $150. It is insisted that the levy is excessive by the latter sum. Where the receipts of the state's attorney's office amount to a considerable part of his salary, it has been held that the county board was authorized to levy only the difference between the amount of his salary and the probable receipts of his office. People v. Chicago Great Western Railroad Co., 279 Ill. 176, 116 N. E. 664;People v. Hines, 290 Ill. 519, 125 N. E. 336;People v. Jackson, 272 Ill. 494, 112 N. E. 344. But an objection to taxes should involve an amount substantial enough to justify the court in taking notice of the objection. Appellants' portion of the tax involved in this objection is so inconsequential the county court cannot be said to have abused its discretion in overruling it.

A tax of $169.84 extended at a rate of 11 1/2 cents on each $100, in addition to the 25-cent maximum rate permitted by statute for general county purposes was also objected to. The 11 1/2-cent rate was for the payment of certain bonds and interest issued to refund the floating indebtedness of the county. A proposition to issue bonds for that purpose in the amount of $40,000 was submitted to the voters in 1933 and was carried. The ballots at the election, after setting out the proposal to issue bonds, with their date, interest, amounts, and maturity, stated: ‘The principal and interest of said bonds to be met by a special tax, designated as ‘The County Bond tax,’ to be levied annually at a rate of taxation that will produce the following amounts: [Stating amounts and maturities.]' On the right-hand side of the face of the ballot the words ‘For County Bonds' and ‘Against County Bonds' appear, with appropriate space for the voter to mark the ballot. Appellants' claim is that the levy of the 11 1/2-cent rate was illegal because it was in addition to the statutory limit of 25 cents, and that authority to make the levy was not submitted to the voters.

Section 27 of the Counties Act (Smith-Hurd Ann. St. c. 34, § 27) provides that, whenever the county board shall deem it necessary to assess taxes in excess of the statutory limit of 25 cents, the board may, by an order of record, set forth the purpose and number...