People ex rel. Morse v. Chambliss

• Decision Date: 22 January 1948
• Docket Number: No. 30426.,30426.
• Citation: People ex rel. Morse v. Chambliss, 399 Ill. 151, 77 N.E.2d 191 (Ill. 1948)
• Parties: PEOPLE ex rel. MORSE v. CHAMBLISS et al.
• Court: Illinois Supreme Court

399 Ill. 151

77 N.E.2d 191

PEOPLE ex rel. MORSE

v.CHAMBLISS et al.

No. 30426.

Supreme Court of Illinois.

Jan. 22, 1948.

Appeal from Circuit Court, Alexander County; Loyd M. Bradley, judge.

Action by the People, on the relation of Mack Morse, on behalf of himself and all other taxpayers similarly situated, against Hugo Chambliss and others for an accounting of taxes, interest and costs due on property of named defendant and for foreclosure of tax lien on such property, and for other relief.Named defendant's motion to strike out the complaint and dismiss the action as to him was allowed, and relator appeals.

Affirmed.

D. B. Reid, of Cairo, for appellant.

Charles L. Rice, of Cairo, for appellees.

SIMPSON, Justice.

January 22, 1947, a verified complaint was filed in the circuit court of Alexander County by appellant, Mack Morse, against Hugo Chambliss, hereinafter referred to as appellee, and the county clerk and the sheriff of Alexander County, the latter also designated as ex-officio collector of Alexander County.The suit is brought by appellant in the name of The People on relation of himself as a taxpayer and on behalf of all other taxpayers similarly situated, and prays for an accounting of the taxes, interest, penalties and costs due upon property of appellee Chambliss, and for foreclosure of the tax lien upon said property if the amount found due is not paid.The complaint also asks for deed in case of sale unless redemption is effected and prays for other and further relief as equity may require.Motion of appellee to strike the complaint and dismiss the action as to him was allowed.An appeal was taken directly to this court, as the case is one relating to revenue.

The complaint alleges that appellee was on December 17, 1945, and at the time of the bringing of the suit, the owner of lots 6, 7, 8, and 9 in block 11 in the city of Cairo, Alexander County, Illinois; that taxes on said lots together with interest, penalties and costs for the years 1930 to 1944, inclusive, were due and unpaid in the aggregate amount of $28,061.37 as shown by the tax, judgment, forfeiture, sale and redemption records of said county; that on December 17, 1945, the county clerk certified to the sheriff, upon instructions of the board of county commissioners of Alexander County, the amount of back taxes and penalties, plus one year's interest of 12 per cent together with costs due upon said lots, as being the sum of $14,518.50 and that the sheriff received said amount as full satisfaction thereof and marked his books accordingly.It is alleged that the board of county commissioners was without authority to authorize the acceptance of any less sum than the actual amount due; that the county clerk was without authority to certify any amount less than that actually due and that the sheriff and ex-officio collector was without authority to accept the lesser sum as full payment, etc.The complaint then alleges that the People are entitled to have and receive from appellee the balance of said taxes, penalties, interest and costs amounting to $13,542.87 and that the property had been forfeited to the State for failure to pay that amount.

The motion to strike the complaint and dismiss the suit is made upon the ground that a private individual has no authority to bring a suit to foreclose a tax lien; that the suit, being one to foreclose a tax lien, can only be instituted by virtue of section 216 of the Revenue Act of 1939 now in force; that the petition is not sufficient for other reasons shown on the face thereof and is not sufficient to confer jurisdiction on the court.

Section 216 of the Revenue Act, in force when this suit was filed (Ill.Rev.Stat.1945, chap. 120, par. 697), provided for the enforcement of a lien on real estate for unpaid taxes by foreclosure of the lien.This section declares that the action is one in rem.It provides that the tax lien may be foreclosed in the name of the People of the State of Illinois on the direction of the county board of the county or upon the direction of the corporate authorities of any taxing body entitled to receive any part of the delinquent tax.

It is evident that the complaint is not based upon said section 216 of the Revenue Act nor does appellant attempt to bring himself within the provisions of that section.He admits that the suit is not brought under the Revenue Act, and says it is not to enforce a tax lien.In his argument appellant says: ‘The primary object of this action, is for an accounting against the appellee, Chambliss, to determine the amount of taxes, interest, penalties and costs he yet owes to the People of the State of Illinois, and when such accounting is had, that the appellee, Chambliss, be required to pay the balance yet due within a short day to be fixed by the court, and in default thereof, the premises mentioned in the complaint herein or such portion thereof as necessary, be sold by the sheriff and exofficio collector of Alexander County, as provided by law, to recover the amount so found to be due.So that this action is not an action to foreclose a tax lien, as provided by Section 216 of the Revenue Act, * * *.’

There can be no question but that the suit is for the collection of taxes alleged to be due and owing.The complaint alleges that the People still retain a lien against said property by reason of the unpaid taxes for the sum of $13,542.87, which is the amount for which judgment is requested.The early case of People v. Biggins, 96 Ill. 481, was one to enforce by foreclosure the lien given by law on certain land in Madison County for the taxes due from 1871 to 1878 in the sum of $9000.Demurrer to that bill was sustained.The sole question in that case was the jurisdiction of a court of equity of a proceeding by bill for collection of taxes delinquent on real estate.The statute at that time provided: ‘The taxes assessed upon real property shall be a lien thereon from and including the first day of May in the year in which they are levied, until the same are paid,’Rev.St.1874, C. 120, s 253, but it gave the court no jurisdiction to foreclose the tax lien.We said in that case, ‘* * * is there any logical or legal ground for holding that a lien of this character can be enforced by bill in chancery in the same manner that a lien can be enforced which is created by a real estate mortgage?This is not an equitable lien, nor a lien created by contract or usage.* * * The lien provided by the section, supra, was not created by contract, nor does it fall within the class denominated equitable liens, but it is a lien imposed and created by statute.* * * The same statute which creates the lien, provides the various steps that shall be taken to enforce that lien, and the lien can only be enforced by a strict compliance with the requirements of the statute.’In 1881, immediately following the Biggins case, the statute was amended to provide that the tax lien may be foreclosed in equity in any court of competent jurisdiction.Such provision is still in the statute.

In the Biggins casewe further said, ‘Suppose a person, after he had obtained a judgment which had become a lien on real estate, for some reason should neglect to levy upon and sell...