People ex rel. Gill v. Schweitzer

• Decision Date: 06 October 1937
• Docket Number: 24036,Gen. Nos. 24035,24038.
• Citation: 10 N.E.2d 337,366 Ill. 568
• Parties: PEOPLE ex rel. GILL, County Collector, v. SCHWEITZER. SAME v. MENEFEE. SAME v. BARNES.
• Court: Illinois Supreme Court

366 Ill. 568

10 N.E.2d 337

PEOPLE ex rel. GILL, County Collector,

v.SCHWEITZER.

SAME

v.MENEFEE.

SAME

v.BARNES.

Gen. Nos. 24035, 24036, 24038.

Supreme Court of Illinois.

June 11, 1937.

As Modified on Denial of Rehearing Oct. 6, 1937.

Appeals from Cook County Court; Edmund K. Jarecki, Judge.

Proceedings by the People, on the relation of Joseph L. Gill, County Collector, against Richard H. Schweitzer, against Joseph L. Gill, and against Cecil Barnes. From adverse judgments, the People appeal.

Reversed, and each cause remanded, with directions to overrule objections. Thomas J. Courtney, State's Atty., Barnet Hodes, Corp. Counsel, William Crilly, Manuel E. Cowen, Jacob Shambirg, Joseph F. Grossman, Otho S. Fasig, Norman N. Eiger, Richard S. Folsom, Frank S. Righeimer, Ralph Condee, Albert Fink, Ernst Buehler, Lawrence J. Fenlon, Edmond P. Maloney, Charles Center Case, and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago (Joseph B. Fleming and Thomas M. Thomas, both of Chicago, of counsel), for the People.

Robert N. Holt, Scott MacLeish & Falk, Adams, Nelson & Williamson, Winston, Strawn & Shaw, Richard C. Beckett, and Adelbert Brown, all of Chicago (Robert S. Cushman, of Chicago, of counsel), for appellees.

JONES, Justice.

The county court of Cook county sustained objections to all amounts in excess of .0463 or 4.63 per cent. of loss and cost items in the 1934 levies of the county of Cook, the Forest Preserve District of Cook county, the Sanitary District of Chicago, the city of Chicago, the Board of Education of the city of Chicago, the Chicago Park District and the former South Park District. Three separate appeals have been prosecuted by the people from the respective orders sustaining the objections and each is considered and disposed of in this opinion.

On the trial below it was stipulated that the following percentages were allowed by the different municipal governments for loss and cost and for tax deficiencies: County of Cook, corporate fund, 12 per cent. for ‘tax deficiency-loss and cost of collection’; highway, 12 per cent. tax deficiency; bond and interest, 10 per cent. loss and cost. Forest Preserve District, corporate fund 17 per cent. tax deficiency; zoological fund, 17 per cent. loss and cost; bond and interest, 12 per cent. loss and cost. Sanitary District of Chicago, bond and interest, 12 per cent. loss and cost, city of Chicago, corporate loss and cost, 11 per cent., bond and interest, 11 per cent. loss and cost, Board of Education, all funds, 6 per cent. for ‘loss and cost of collection, abatements, etc.’ Chicago Park District, corporate, 7 per cent. loss and cost; bond and interest, 10 per cent. loss and cost. Former South Park District, bond and interest, 10 per cent. loss and cost. None of such items was included in any levy, but appeared only as allowances in the budget appropriations of the several taxing bodies.

It was further stipulated that the evidence as to loss and cost extended for city of Chicago bonds, and the findings upon such evidence, shall govern and control the findings as to loss and cost of all the taxing bodies named, except that the issues raised by the Chicago Park District and the Sanitary District of Chicago as to certain validating acts, the question presented by the board of education under section 135 1/2 of the School Law (Smith-Hurd Ill.Stats. c. 122, § 158a), and the question presented by the city of Chicago under section 2 a of article 7 of the Cities and Villages Act (Smith-Hurd Ill.Stats. c. 24, § 102), shall not be controlled or affected by the stipulation.

In cause No. 24035 (Schweitzer, appellee) the principal issue relates to the amount properly allowable for loss and cost in the several taxing districts. It is agreed that they are narrowed to the question of whether or not a bona fide effort has been made to collect delinquent personal property taxes so as to justify the inclusion of such taxes as a loss. Other questions involving the proper method of calculation of allowable losses are also presented. The collector also contends that the allowance for loss and cost in the 1934 levies of the Chicago Park District was validated by the act of July 11, 1935 (Laws 1935, p. 1051 [Smith-Hurd Ill.Stats. c. 105, § 333.42]) and that the allowance for loss and cost of the Sanitary District of Chicago was validated by the act of June 17, 1935 (Laws 1935, p. 770 [Smith-Hurd Ill.Stats. c. 42, § 350a]). In cause No. 24036 (Menefee, appellee), the questions relate to the allowable losses under section 135 1/2 of the School Law (Smith-Hurd Ill.Stats. c. 122, § 158a). In cause No. 24038, (Barnes, appellee,) the issue is whether appropriations under section 2 a of article 7 of the Cities and Villages Act, (Smith-Hurd Ill.Stats. c. 24, § 102; Ill.Rev.Stats.1935, c. 24, par. 93, p. 354) are governed by the same rules as regulate levies by taxing bodies under the general revenue law.

In each cause the objector relies upon the decision of this court in People ex rel. Nash v. Northwestern Mutual Life Ins. Co., 361 Ill. 248, 197 N.E. 758. In that case this court upheld an order of the county court of Cook county sustaining objections to loss and cost allowances on the 1931 taxes in excess of 4.63 per cent. It appeared that the city comptroller predicated his loss and cost figure on the difference between net extensions and net collections for the city of Chicago and the city schools without making any allowance for forfeitures, real estate judgments refused, real estate and railroad taxes pending and appealed, and taxes suspended by injunction, none of which is a proper item to be included in the loss and cost and none of which is in the causes now before the court. The loss and cost item in the levy for bonds and interest of the city of Chicago was slightly in excess of 11 per cent. and was based on the average per cent. of uncollected taxes for ten years preceding the year 1930. It was shown there was a notable lack of diligence with respect to the collection of the personal property taxes for the years 1927 and 1928. No distraints for such taxes were made, nor were any levies made on any of the judgments recovered, and a steady annual increase of the amount of personal property taxes uncollected was disclosed. It also appeared there was a corresponding lack of diligence in collecting the 1931 personal property taxes. We held that such a condition results in an unjust and unfair discrimination against persons who voluntarily pay their personal taxes and against the owners of real estate, and that the constitutional guaranty of equality in taxation is violated, if not destroyed, as long as this condition obtains.

The present objectors claim that the county collector never attempted to collect unpaid personal property taxes by distraint and that such taxes were never charged upon real estate; that where judgments were recovered the payment thereof rested upon a purely voluntary basis; that no levies were made under any execution upon a personal property tax judgment, and that 95 per cent. of delinquent personal property taxpayers were entirely undisturbed by any of the legal processes provided for collecting said taxes.

The collector here introduced testimony to show that if the loss and cost in the Northwestern Mutual Life Ins. Co. Case, supra, had been based on actual collections up to 1936, in place of estimates at the time of levy, the rate for 1931 would be 9.23 on legal extensions, and 8.83 on gross extensions for that year, and that the total uncollectible taxes for 1931, including such loss and cost, would be 18.34; that for the year 1932 the taxes uncollected up to May 14, 1936, would represent an average loss and cost on legal extensions of 10.39, and that the total of uncollectible taxes, including such loss and cost, would be 19.50.

The testimony shows that for the years 1928 to 1934, the following percentages of taxes for those respective years remained uncollected up to May 14, 1936: For 1928, 10.44; for 1929, 16.35; for 1930, 22.33; for 1931, 24.33; for 1932, 30.95; for 1933, 31.18; for 1934, 36.90.

The objectors introduced a number of pages and items in the personal property warrant books of 1929 where no entries had been made indicating that any legal action had been taken on such items, amounting to $2,444,669. It is claimed the lack of entries shows that no action to collect any of such items had been taken. The testimony of the collector shows that the absence of entries in the warrant books was not an indication that no action had been taken; that entries were in fact not made until after something was paid on the judgment; that, prior to the year 1931, comparatively few suits were filed for delinquent personal property taxes under $100 and that the state's attorney considered it impractical to institute suits for such taxes under $50. The objectors rely upon this testimony as showing a want of diligence in the taxing authorities, but it is to be observed that any want of diligence on the part of former officials does not tend to establish any dereliction or failure of present taxing officials, and there is no testimony to show that since the year 1931 there has been a failure to make reasonable efforts to enforce the collection of delinquent taxes. The testimony on the part of the collector was, that of the 1931 delinquent personal property tax, $32,710,246, or almost 50 per cent. of the entire levy, was collected by the state's attorney after it had been referred to his office. For the years 1931 to 1934 there were turned over by the collector to the state's attorney, for collection, delinquent personal property items as follows: In 1931, 718,000; in 1932, 896,000; in 1933, 834,000; in 1934, 800,000. An assistant state's attorney testified that the available courts could not possibly handle that number of cases and the maximum number which could...