People ex rel. Cnty. Collector of Ogle Cnty. v. Chicago, B.&Q.R. Co.

• Decision Date: 23 December 1926
• Docket Number: No. 17337.,17337.
• Citation: People ex rel. Cnty. Collector of Ogle Cnty. v. Chicago, B.&Q.R. Co., 323 Ill. 536, 154 N.E. 468 (Ill. 1926)
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. COUNTY COLLECTOR OF OGLE COUNTY v. CHICAGO, B. & Q. R. CO.

323 Ill. 536

154 N.E. 468

PEOPLE ex rel. COUNTY COLLECTOR OF OGLE COUNTY

v.CHICAGO, B. & Q. R. CO.

No. 17337.

Supreme Court of Illinois.

Dec. 23, 1926.

Action by the People, on the relation of the County Collector, against the Chicago, Burlington & Quincy Railroad Company. From the judgment, defendant appeals.

Reversed in part, and remanded, with directions.Appeal from Ogle County Court; Leon A. Zick, Judge.

Seyster & Fearer, of Oregon, Ill. (J. A. Connell, of Chicago, of counsel), for appellant.

Martin V. Peterman, State's Atty., of Rochelle (H. A. Smith, of Oregon, Ill., of counsel), for appellee.

PER CURIAM.

The collector of Ogle county applied to the county court at the June term, 1924, for a judgment against the property of the Chicago, Burlington & Quincy Railroad Company and an order of sale for delinquent taxes levied in 1923. The railroad company filed objections to the road and bridge taxes for the towns of Oregon, Pine Creek, Buffalo, Eagle Point, Dement, Flagg, Pine Rock, Nashua, Mt. Morris, Lincoln, Forreston, White Rock, and Scott, because the taxes were levied in a lump sum for road and bridge purposes, instead of stating separately the several amounts to be levied for various purposes, as required by section 50 of the act of 1913 to revise the law in relation to roads and bridges. Laws 1913, p. 542. The railroad company also objected to all the road and bridge taxes in excess of 50 cents on each $100 valuation of the taxable property levied in the towns of Pine Creek, Buffalo, Eagle Point, Dement, Flagg, Pine Rock, Nashua, Mt. Morris, Lincoln, Forreston, White Rock, and Scott, because consent was not obtained for the levy of such excess from the respective boards of town auditors, as required by law. At the October term, 1925, the objections were overruled, except as to the excessive levy, in the following towns in the amounts stated: White Rock, $203.56; Dement, $94.60; Pine Creek, $202.41; Eagle Point, $90.60; Buffalo, $181.47. As to these amounts, the objection was sustained, and judgment was rendered for all other taxes, with penalties, interest, and costs, as provided by the statute, and a sale of the railroad company's property was ordered, from which it appealed.

[1] It was stipulated that all the certificates of levy for road and bridge taxes made by the commissioners of highways of the towns named were for a lump sum for all purposes, and not itemized, as required by the statute. The failure to comply with the provisions of the statute made this levy invalid. People v. Illinois Central Railroad Co., 314 Ill. 373, 145 N. E. 731;People v. Chicago, Terre Haute & Southeastern Railway Co., 315 Ill. 589, 146 N. E. 532.

By an act of the Legislature approved June 20, 1925, it was enacted:

‘In all cases where in any town a tax for road or bridge purposes has been heretofore and prior to the passage of this act levied and the commissioner of highways of such town has not itemized such tax as provided by part ‘b(3)’ of section 50 of ‘An act to revise the law in relation to roads and bridges,’ approved June 27, 1913, as amended, such tax if otherwise legal, is hereby declared valid.' Laws of 1925, p. 545.

[2] The appellee claims that by this act the levy was made valid, while the appellant claims that the act was beyond the legislative power. Where there is no constitutional prohibition, there can be no question of the power of the Legislature to validate by a curative act any proceeding which it might have authorized in advance. People v. Wisconsin Central Railroad Co., 219 Ill. 94, 76 N. E. 80;People v. Illinois Central Railroad Co., 301 Ill. 288, 133 N. E. 779;People v. Sandberg Co., 282 Ill. 245, 118 N. E. 469. In the case of People v. Wisconsin Central Railroad Co. supra, the county board attempted to levy a county tax, but did not specify the particular purposes for which the tax was levied. On February 28, 1905 (Laws 1905, p. 359), the Legislature passed an act for the purpose of curing the defect in levies in this and other cases. Upon application of the collector to the county court for judgment at the June term, 1905, judgment was refused, but this court reversed the judgment, holding that the Legislature might have authorized the levy in this manner, that no vested right of the taxpayer was interfered with, and the curative act had the effect to render the taxes legal and valid.

The appellant contends that the failure to state separately the several amounts to be levied for the various purposes mentioned in the statute was a defect in the levy incapable of cure by legislation, and cites the case of People v. Wabash Railway Co., 311 Ill. 579, 143 N. E. 488, in support of its contention. In that case was involved the effect of a curative act purporting to validate taxes levied by highway commissioners in excess of 50 cents on the $100 valuation without having obtained the consent of the board of town auditors, as required by the statute, and the court, holding the act invalid, said:

‘The power of the Legislature to validate a tax by a curative act is limited to the case of irregular exercise of power, and it cannot make valid proceedings which were void, which would be equivalent to levying a tax by the curative act. There was not a mere irregular exercise of power but an absence of the essential requirement of official action, and the written consent could not be supplied by a curative act.’

It is true that we said in People v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 314 Ill. 455, 145 N. E. 727:

‘We have held in many cases that where a statute authorizing a tax levy for several purposes requires the amount for each purpose to be stated separately, a failure to comply with such requirement is not a mere irregularity but a fatal omission, which makes the levy void.’

We cited cases decided before that decision, and the same statement has been made since. People v. Chicago, Terre Haute & Southeastern Railway Co., 315 Ill. 589, 146 N. E. 532;People v. Wabash Railway Co., 316 Ill. 403, 147 N. E. 455. In each of the cases the word ‘invalid’ would have been more accurate than ‘void,’ but in none of them was the effect of a curative act involved. In answer to a similar claim made in the case of People v. Wisconsin Central Railroad Co., supra, in connection with the previous decision of Chicago, Burlington & Quincy Railroad Co. v. People, 213 Ill. 458, 72 N. E. 1105, it was said:

‘Section 191 of the Revenue Act is curative and prospective, and provides that in tax proceedings no tax shall be considered illegal on account of errors or informalities in the proceedings not affecting the substantial justice of the tax. What was said with reference to the tax in the case referred to related to the question whether it was within the prospective curative provisions of that section. The defect in that case and in this one did not come within the curative provisions of that section, but it does not follow that the defect was not cured by the retrospective act of 1905.’

[3][4]At the time of the attempted levy of the tax in question, three things were necessary to be done to make it valid: The highway commissioner had to itemize the tax (Road and Bridge Act, § 50 [Smith-Hurd Rev. St. 1925, c. 121, § 56]); a proper certificate of an itemized levy had to be filed with the county clerk; and the certificate of the tax as itemized had to be passed upon by the county board (Road and Bridge Act, § 56 [Smith-Hurd Rev. St. 1925, c. 121, § 62]). It is contended by appellant that, while the Legislature may have had power to waive the approval of the county board and to waive the filing of a proper certificate, it did not do so, and that the validating act, as passed, only validated the irregular act of the highway commissioner, and did not validate, or attempt to validate, the irregularity of the certificate or the irregular act of the county board in acting upon an unitemized certificate. Whenever a statute is susceptible of two constructions, one of which will give effect to, and the other nullify, its provisions, courts will so construe it as to effectuate the legislative purpose rather than to nullify it. Yeadon v. Clark, 276 Ill. 424, 114 N. E. 1023;People v. Price, 257 Ill. 587, 101 N. E. 196, Ann. Cas. 1914A, 1154;People v. Hinrichsen, 161 Ill. 223, 43 N. E. 973. It is evident that in no case where the highway commissioner did not itemize the tax in accordance with the provisions of section 50 of the act could there be a compliance with the provisions of section 56. We must therefore construe the...