People ex rel. Fisher v. Baltimore & O.R. Co.

• Citation: 61 N.E.2d 382,390 Ill. 389
• Decision Date: 23 May 1945
• Docket Number: No. 28415.,28415.
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. FISHER, County Collector, v. BALTIMORE & O. R. CO.

390 Ill. 389

61 N.E.2d 382

PEOPLE ex rel. FISHER, County Collector,

v.BALTIMORE & O. R. CO.

No. 28415.

Supreme Court of Illinois.

May 23, 1945.

Appeal from Piatt County Court; B. E. Morgan, Judge.

Application by the People, on the relation of Cloyd D. Fisher, County Collector of Piatt County, for judgment for delinquent drainage taxes against the Baltimore & Ohio Railroad Company. Judgment for full amount of the special assessment was entered, and the railroad company appeals.

Reversed and remanded, with directions.

Frank J. Goebel, of Cincinnati, Ohio, and Hawbaker & Sievers, of Monticello (Elim J. Hawbaker, of Monticello, of counsel), for appellant.

Carl I. Glasgow, State's Atty., of Monticello (Robert F. White, of Sullivan, of counsel), for appellee.

Dobbins, Dobbins & Thomas, of Champaign, and Craig Van Meter and Fred H. Kelly, both of Mattoon, amici curiae.

GUNN, Justice.

The collector of Piatt county made application in the county court for judgment for delinquent taxes for 1941. Among those listed as delinquent in payment of taxes was appellant, the Baltimore & Ohio Railroad Company and its subsidiary, for nonpayment of both general taxes and drainage taxes. It paid one hundred per cent of its general taxes, part only being under protest. It paid none of the drainage taxes under protest, and filed objections to part of the general tax and all of the drainage special assessment. There has been no appeal from the judgment of the county court in its ruling upon general taxes, and consequently this appeal only involves the judgment rendered against appellant for nonpayment of special assessments levied for the improvement of the Hammond Mutual Drainage District of Piatt and Moultrie counties.

Appellant filed some fifteen objections, and appellee made a motion to dismiss all of the objections and for the entry of judgment against appellant because no part of the special assessment, for which judgment was sought, had been paid under protest. The court denied this motion. All of the objections of appellant, some fifteen in number, to the application for judgment were, upon motion of appellee, stricken by the court, and judgment entered against appellant for the full amount of the special assessment, together with interest and costs.

The appellee contends the payment of seventy-five per cent of the amount of the special assessment under the provision of section 194 of the Revenue Act of 1939 (Ill.Rev.Stat.1943, chap. 120, par. 675) was jurisdictional, and therefore appellant has no right to question the rulings of the trial court in striking the objections made to the validity of the assessment. It has been frequently held that there is a substantial difference between a tax and a special assessment. County of McLean v. City of Bloomington, 106 Ill. 209;DeClercq v. Barber Asphalt Paving Co., 167 Ill. 215, 47 N.E. 367;Carlyle v. Battels, 315 Ill. 271, 146 N.E. 192. The foundation for the distinction is laid down in Cooley on Taxation, 2d Ed., 616: ‘The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.’

In People ex rel. Smith v. Brewer's Estate, 362 Ill. 88, 199 N.E. 109, we held that the term ‘taxes,’ as used in section 162 of the Revenue Act, as amended in 1933, and prior to the adoption of the Revenue Act of 1939, did not apply to special assessments, and that section did not require the payment of seventy-five per cent of the amount of the special assessment to entitle the objector to resist the entering of judgment for delinquent assessments. Appellee says that the change in the statute renders this decision inapplicable. Prior to 1939, and at the time the Brewer decision was rendered, section 162 provided: ‘If any person shall desire to object * * * to all or any part of any one or more of the taxes levied by the various taxing authorities which form the aggregate of all taxes levied, * * * he shall pay at least 75 per cent of the same under protest, * * *.’ Section 194 of the Revenue Act of 1939 (Ill.Rev.Stat.1943, chap. 120, par. 675) provides: ‘If any person shall desire to object * * * to all or any part of a real property tax for any year, for any reason other than that the real estate is not subject to taxation, he shall first pay at least 75 per cent of the tax.’

We are unable to see any substantial distinction between ‘any part of any one or more of the taxes levied,’ on a piece or parcel of land, and ‘any part of a real property tax.’ The distinguishing feature between the two sections lies in the words ‘for any reason other than that the real estate is not subject to taxation.’ This language is not in the prior statute, and, very obviously, it means that the owner of land which is not subject to any taxation at all is not required to pay any amount under protest in order to object to a tax. We think the distinction claimed is without merit.

It is also contended that our decision in People v. Taylorville Sanitary Dist., 371 Ill. 280, 20 N.E.2d 576, has, in effect, overruled the Brewer case. Counsel misapprehend the holding in the Taylorville case. What was involved in that case was the equality or priority of liens of general taxes and special assessments, and it had nothing to do with the construction of the procedure for the filing of objections to taxes. The case did not involve tax objections, or the method of filing the same, but the references to the Revenue Act were solely for the purpose of deciding the general proposition of law as to whether one species of taxes had priority over another. A judicial opinion must be read as applicable only to the facts involved and is authority for what is actually decided in the case (City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 39 N.E.2d 26;White v. Seitz, 342 Ill. 266, 174 N.E. 371) and not for other questions to which the language has no application.

Appellant filed a number of objections to the validity of the drainage tax. There were fifteen in number. It is not necessary to do more than classify the nature of these objections. The first class indicates that the railroad company never was included in or a part of the drainage district in question, and never later became a part of it; second, that the proceedings failed to show that a district had been created under the particular provision of the drainage act; and third, that the assessment was never legally made by the district, and the assessment against appellant's land was excessive. We deduce such to be the effect of the objections, although the arguments of counsel take a much broader range. All objections made by appellant were stricken. Attached to the objections was the contract under which the Hammond Mutual Drainage District of the counties of Piatt and Moultrie was organized.

It appears that the drainage district in question was organized under section 77 of the Farm Drainage Act. Ill.Rev.Stat. 1943, chap. 42, par. 162. Sections 1 to 70 of the Farm Drainage Act provide for a complete and comprehensive system of farm drainage, and the method of organization by petition, description of territory, character of drain, etc. By section 77, an alternative method of organizing a district is provided, where it is done by mutual agreement of the landowners and not by court action. It is provided, in effect, that the owners of land which require combined drainage may form a district by mutual agreement to include lands of their own only, by an instrument in writing and duly signed...