People ex rel. Hudson v. Cleveland, C., C. & St. L. Ry. Co.

Decision Date17 April 1935
Docket NumberNo. 22888.,22888.
Citation360 Ill. 180,195 N.E. 631
CourtIllinois Supreme Court
PartiesPEOPLE ex rel. HUDSON, County, Collector, v. CLEVELAND, C., C. & ST. L. RY. CO.

OPINION TEXT STARTS HERE

Tax proceeding by the People, on the relationship of I. J. Hudson, County Collector, against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From the judgment, the defendant appeals, and plaintiff cross-appeals.

Reversed and remanded, with directions.

Appeal from Pulaski County Court; C. S. Miller, Judge.

Dewey & Cummins, of Cairo (Samuel W. Baxter, of Cincinnati, Ohio, of counsel), for appellant.

Joseph O'Sullivan, State's Atty., of Mound City, and Charles L. Rice, of Springfield, for appellee.

HERRICK, Justice.

The county court of Pulaski county overruled the objections of the objector, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to the application of the county collector of that county for judgment for a delinquent tax for 1933, designated in the record as the additional county tax as to 25 cents on the $100 valuation, and entered judgment and order of sale therefor. The county tax and the additional county tax were each extended at the rate of 32 cents and the county highway tax at the rate of 16 cents on the $100 valuation. The county court sustained the objector's objections to 7 cents of the rate both for the county tax and the additional county tax, being the excess above the 25-cent rate in each instance, and also sustained the objection to 3 1/2 cents (the excess over the statutory rate of 12 1/2 cents of the county highway tax) and entered judgment and order of sale for the taxes as so reduced. The objector deposited with the county collector the amount of the additional county tax extended at the 25-cent rate and costs and has perfected this appeal, as provided by the statute, from the judgment for the additional county tax.

The collector, appellee herein, filed with the notice of appearance notice of a cross-appeal from the judgment sustaining the objections to the excess rates of the county tax, additional county tax and county highway tax. The objectorraises the issue that the collector cannot be cross-appeal bring the record here for review of the judgments sustaining the objections to such excess tax rates. The objector takes the position that, notwithstanding rule 35 of this court, adopted at the December term, 1933, the provisions covering the trial of tax objections, and appeals from judgments entered thereon, are not within the purview of the Civil Practice Act, but are regulated and controlled by the provisions of chapter 120, commonly referred to as the Revenue Act.

Section 74 of the Civil Practice Act (Smith-Hurd Ann. St. c. 110, § 198, Cahill's Rev. St. 1933, c. 110, par. 202, p. 2159) provides: ‘Every order, determination, decision, judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal, and such review shall be designated an appeal and shall constitute a continuation of the proceeding in the court below. Such appeal shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error.’ The rules of this court prescribe the procedure for the taking of appeals under the act. Subdivision 2 of section 77 of the same act (Smith-Hurd Ann. St. c. 110, § 201, subd. (2) provides: ‘Leave to appeal shall first be obtained only where such leave is expressly required by law.’ No appeal bond is required unless a supersedeas is desired.

Section 1 of the Civil Practice Act (Smith-Hurd Ann. St. c. 110, § 125; Cahill's Rev. St. 1933, c. 110, par. 129, p. 2150) is as follows: ‘The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in attachment, ejectment, eminent domain, * * * or other actions in which the procedure is regulated by special statutes,’ etc. Subdivision 2 of section 31 of the same act (Smith-Hurd Ann. St. c. 110, § 155 subd. (2) provides: ‘Proceedings in attachment, ejectment, eminent domain, * * * or other actions in which the procedure is regulated by special statutes, shall be in accordance with the statutes dealing therewith.’

Rule 2 of this court is: ‘In the actions referred to by section 1 and sub-section 2 of section 31 of the Civil Practice act, the separate statutes shall control, to the extent to which they regulate procedure in such actions, but the Civil Practice act shall apply to matters of procedure not so regulated by separate statutes.’

Section 191 of the Revenue Act (Smith-Hurd Ann. St. c. 120, § 179, Cahill's Rev. St. 1933, c. 120, par. 209, p. 2337) provides, in substance, that on application for judgment and order of sale for property for delinquent taxes the court shall examine the county collector's list of delinquent property, ‘and if defense (specifying, in writing, the particular cause of objection) be offered by any person interested * * * the court shall hear and determine the matter in a summary manner, without pleadings.’ Section 192 of the same act (Smith-Hurd Ann. St. c. 120, § 180) provides that appeals from the judgment of the county court may be taken to the Supreme Court within thirty days from the rendition of the judgment, on the party praying an appealexecuting a bond to the people, with two or more sureties to be approved by the court, in some reasonable amount to be fixed by the court, conditioned that the appellant will prosecute his appeal with effect and will pay the amount of the tax in litigation, with costs, with the further proviso that no appeal shall be allowed from any such judgment, nor any writ of error to review the judgment shall operate as a supersedeas unless the party praying the appeal or desiring the writ of error shall, before taking the appeal or suing out such writ of error, deposit with the county collector an amount of money equal to the amount of the judgment and costs. There are further provisions in this section for the entry of judgment in this court, with a penalty of not to exceed 10 per cent. in the event the judgment is affirmed, and a provision for ordering the county collector to credit the judgment with the amount deposited with him and awarding an execution for the deficiency, if any, with the costs. Writs of error as applied to civil cases are not recognized by the Civil Practice Act except where statutory provision is made therefor. Smith-Hurd Ann. St. c. 110, § 198, Cahill's Rev. St. 1933, c. 110, par. 202, p. 2159. It is apparent that section 192 relates to appeals by the property owners. The Civil Practice Act specifically excludes from its provisions those proceedings in which the practice is regulated by special statutes. Rule 2 of this court relates only to the practice in proceedings coming expressly within the terms of the Civil Practice Act and not to statutory proceedings wherein a designated practice is prescribed. The procedure to enforce the payment of taxes against real and personal property is definitely prescribed by the Revenue Act. An appeal cannot be taken by the property owner from an order of sale against his property until he has deposited the tax that is in litigation. Neither can he obtain a supersedeas on a writ of error without likewise depositing the tax.

The proceeding is clearly within the exception of the Civil Practice Act and rule 2 of this court. The rule is, that in hearings on tax objections the judgment as to the different items involved is a distinct judgment as to each of such items. People v. Baltimore & Ohio Railroad Co., 319 Ill. 366, 150 N. E. 286;People v. Chicago & Eastern Illinois Railway Co., 310 Ill. 257, 141 N. E. 824;People v. Chicago & Alton Railway Co., 289 Ill. 282, 124 N. E. 658. The items of the county tax and the county highway tax are distinct and separate items of tax from the additional county tax. The appeal brought here by the objector involves only the issue as to the correctness of the judgment entered by the trial court against the objector for the additional county tax. The ruling of the trial court as to the items of the county tax and the county highway tax cannot be presented for review here by the purported cross-appeal taken by the collector. In order to review the judgments on those items, a separate appeal should have been prosecuted by the collector. However, the record involving the additional county tax being here, the collector may properly assign cross-errors on the ruling of the trial court denying judgment for the excess rate of 7 cents of the additional county tax and by cross-errors have such ruling reviewed.

The board of county commissioners on August 29, 1932, adopted a resolution calling for an election on the proposition of levying an additional tax of 25 cents on the $100 assessed valuation. The preamble of the resolution recited that the necessary and actual running expenses of the county, exclusive of the amount necessary for the improvement and maintenance of roads, was found by the board to exceed $38,000 and that the total assessed valuation of the property in the county was $6,974,534, and it was only possible to raise on said amount for county purposes by a 25-cent levy on the $100 valuation, $17,436. The resolution proceeded to recite that it was necessary that an additional county tax of 25 cents on the $100 assessed valuation be levied in addition to the statutory and constitutional limitation in order to pay blind pensions, mothers' pensions, constructing and repairing of bridges and approaches on the county line, and to pay other legal obligations of the county. The resolution directed the county clerk to give the proper notice ‘that the question of levying an additional tax of twenty-five cents on each $100 of the assessed valuation of said county, said tax to be in...

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