People ex rel. Edgar v. Nat'l Box Co.

• Decision Date: 09 February 1911
• Citation: 93 N.E. 778,248 Ill. 141
• Parties: PEOPLE ex rel. EDGAR v. NATIONAL BOX CO.
• Court: Illinois Supreme Court

248 Ill. 141

93 N.E. 778

PEOPLE ex rel. EDGAR

v.NATIONAL BOX CO.

Supreme Court of Illinois.

Dec. 21, 1910.

Rehearing Denied Feb. 9, 1911.

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Mandamus by the People, on the relation of Maxwell Edgar, to compel the Board of Review of Cook County to value and assess the capital stock of the National Box Company for taxes for the years 1899 to 1909, inclusive. Judgment for relator, and the box company appeals. Affirmed.Barker, Church & Shepard and M. W. Borders (Frank L. Shepard, of counsel), for appellant.

Maxwell Edgar (Ossian Cameron, of counsel), for appellee.

DUNN, J.

This appeal is from a judgment of the circuit court of Cook county awarding a peremptory writ of mandamus against the board of review of that county commanding it to value and assess the capital stock of the appellant, the National Box Company, for each of the years from 1899 to 1909, inclusive. The board of review answered the petition, admitting that the appellant is a corporation organized for purely manufacturing purposes, that it was the duty of the board to value and assess the capital stock of the appellant in the years mentioned, and that it had not done so. The appellant demurred to the petition, and, upon its demurrer being overruled, stood by it, and judgment was rendered upon the petition and answer of the board of review.

The first objection made to the judgment is that the statute authorizing the assessment, when discovered, of any property which may have been omitted in the assessment of any year or number of years, is in violation of the constitutional requirement of due process of law because it does not provide for any notice to the owner of the property or person to be assessed. Section 276 of the revenue act (Hurd's Rev. St. 1909, c. 120) directs that, if any property shall have been omitted in the assessment of any year or number of years, the same, when discovered, shall be listed and assessed by the assessor and placed on the assessment and tax books. Section 277 provides that, if the tax or assessment on property liable to taxation is prevented from being collected for any year or years by reason of any erroneous proceeding or other cause, the amount of such tax or assessment which such property should have paid may be added to the tax on such property for any subsequent year. In neither section is mention made of any notice. Section 278 is as follows: ‘No such charge for tax and interest for previous years, as provided for in the preceding section, shall be made against any property prior to the date of ownership of the person owning such property at the time the liability for such omitted tax was first ascertained: Provided, that the owner of property, if known, assessed under this and the preceding section, shall be notified by the assessor or clerk, as the case may require.’

Section 278 contains no provision for the assessment of property. It only fixes a limitation for the extension of the tax which has not been collected in previous years by reason of any erroneous proceeding or other cause, ‘as provided in the preceding section’ (277). The proviso then declares that ‘the owner of property, if known, assessed under this and the preceding section, shall be notified by the assessor or clerk as the case may require.’ The word ‘this,’ as here used, applies to section 277, and the word ‘preceding’ to the section before 277-that is, section[248 Ill. 144]276. ‘This' cannot refer to section 278 because it is used in the phrase ‘assessed under this section,’ while there can be no assessment under section 278, which provides for none. ‘This' is said in Webster's New International Dictionary to be ‘a demonstrative word referring particularly to what is present or near in place, time or thought, or to something just mentioned or to be mentioned.’ Section 277 had just been mentioned, and was near in thought when this proviso was added to section 278, and was the section referred to as ‘this' section. Expressing fully the idea intended to be conveyed by the proviso, section 278 would read as follows: ‘No such charge for tax or interest for previous years, as provided in the preceding section, shall be made against any property prior to the date of the ownership of the person owning such property at the time the liability for such omitted tax was first ascertained: Provided, that the owner of property, if known, assessed under the section which has just been mentioned and the preceding section, shall be notified by the assessor or clerk, as the case may require.’ No notice could possibly be given or required under section 278 because no person could be assessed under that section. Nor could the case, under any circumstances, require notice to be given by the assessor under section 277, because that section has nothing to do with the assessor, and he has no duties to perform under it. It deals only with a tax which had been already levied, and had not, for some reason, been collected. The assessor's duties arise under section 276 only, and the notice mentioned in the proviso to section 278 applies to sections 276 and 277. The assessment which before the revenue act of 1898 would have been made under section 276 by the assessor is since that act authorized to be made by the board of review (People v. Sellars, 179 Ill. 170, 53 N. E. 545;Barkley v. Dale, 213 Ill. 614, 73 N. E. 325), and the notice required to be given by the assessor must be given by the board of review. An assessment, made...