Mix v. Ross

• Citation: 1870 WL 6591,57 Ill. 121
• Parties: RUSSELL C. MIXv.CHARLES M. ROSS et al.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

57 Ill. 121

1870 WL 6591 (Ill.)

RUSSELL C. MIX

v.CHARLES M. ROSS et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Court of Common Pleas of the city of Aurora; the Hon. RICHARD G. MONTONY, Judge, presiding.

The opinion states the facts of the case.

Messrs. PARKS & ANNIS, for the appellant.

Messrs. CANFIELD & NICHOLS, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill for an injunction, to restrain the city collector of Aurora from proceeding to sell a span of horses of the appellant, which said collector had seized and taken under and by virtue of a warrant issued to him for the collection of a special assessment of $119, which had been made upon a lot of the appellant, in said city, as and for the special benefit which would be conferred upon said lot by the construction of a sidewalk in front of it. The court below, on motion, dissolved the injunction and dismissed the bill, and assessed damages on account of the injunction.

The only point we shall consider is, whether there was any legal authority to levy upon and sell personal property to pay this special assessment. Parts of sections 4 and 7 in chapter 3, of the charter of Aurora, are relied on as conferring such authority, which read as follows:

“Sec. 4. All taxes and assessments, general or special, levied on or assessed by the common council under this act or the act to which this is an amendment, shall be a lien upon the real estate upon which the same may be imposed, voted or assessed, for two years from and after the corrected assessment roll shall have been confirmed, and on personal estate from and after the delivery of the warrant for the collection thereof until paid, and no sale or transfer shall affect the lien. Any personal property belonging to the debtor, may be taken and sold for the payment of taxes on real or personal estate.

Sec. 7. All taxes and assessments, general or special, shall be collected by the collector or collectors, in the same manner and with the same power and authority as are given by law to collectors of county and State taxes.”

It is said that the first clause of sec. 4 specifically declares, that special assessments shall be a lien on personal estate, &c.; but that is to be read in connection with the second clause, which declares, that any personal property of the debtor may be taken and sold for the payment of taxes on real or personal estate. The word assessments, used in the preceding clause, is here dropped, and the mention that personal property may be sold for the payment of taxes, excludes the idea that it may be sold for the payment of assessments; only that is a lien which the personal estate may be sold to pay--so that the true reading of the first clause, taken together with the second, is, that all taxes and assessments, general or special, shall be a lien upon the real estate upon which they are imposed, and all taxes, shall be a lien on personal estate, &c.

It is again argued, that the collector of Aurora, having by its charter the same power and authority as the collector of State and county taxes, must have the right to levy upon and sell personal property for this assessment, as the collector of State and county taxes is required by law to make the amount of a person's real and personal tax out of his goods and chattels; and that section 155 of the revenue act, Gross' Statutes, 594, provides, that personal property shall be liable for taxes...