Mcconkey v. Smith

• Decision Date: 30 September 1874
• Citation: Mcconkey v. Smith, 73 Ill. 313, 1874 WL 8983 (Ill. 1874)
• Parties: WILLIAM J. MCCONKEYv.LOT SMITH.
• Court: Illinois Supreme Court

73 Ill. 313

1874 WL 8983 (Ill.)

WILLIAM J. MCCONKEY

v.LOT SMITH.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McHenry county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Messrs. SLAVIN & SMITH, for the appellant.

Messrs. COON & CURTIS, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery, filed by William J. McConkey, in the McHenry circuit court, against Lot Smith, collector of taxes for the town of Chemung, in that county, to restrain from collecting certain taxes assessed against the complainant, on the allegation such taxes were unlawfully assessed.

There was a demurrer to the bill, which was sustained, the injunction dissolved and the bill dismissed. To reverse this judgment, complainant appeals.

As the demurrer admits all the facts which are properly pleaded, the question is, do the facts as pleaded warrant the interposition of a court of equity to grant the relief sought.

This court has decided in a multitude of cases, that a court of equity will restrain the collection of taxes in cases of fraud, or when the assessment or levy is made without the authority of law, or when it is levied upon property not subject to taxation. Drake v. Phillips, 40 Ill. 388; Vieley v. Thompson, 44 Id. 9.

The allegation in the bill is, that complainant gave to the assessor a true list of his taxable personal property, which the assessor accepted without any objection, and which amounted in the total to eight hundred dollars, and no more.

This the assessor, without notice to the owner, altered, and entered the assessment on his books, from eight hundred dollars to four thousand one hundred dollars. This is admitted, and brings the case within the ruling of this court in Cleghorn v. Postlewaite, 43 Ill. 428, where it was held, when a party liable to taxes makes out and delivers to the assessor a list of his taxable property, which is accepted by the assessor, without question, the assessor has no power afterward, arbitrarily and of his own motion, to alter it without first giving the party assessed notice.

But it is not the collection of the taxes on this assessment so made by the assessor that was sought to be collected, and to restrain which the bill was filed. It appears by the bill that, at the July term, 1873, of the board of supervisors, appellant was notified to appear before the board in regard to this assessment, when he learned for the first time of its increase, at which time h...