People ex rel. Pearsall v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 05 February 1926
• Docket Number: No. 16969.,16969.
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. PEARSALL, County Collector, v. CHICAGO, M. & ST. P. RY. CO.

319 Ill. 415

150 N.E. 247

PEOPLE ex rel. PEARSALL, County Collector,

v.CHICAGO, M. & ST. P. RY. CO.

No. 16969.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied Feb. 5, 1926.

Action by the People, on the relation of Ira E. Pearsall, County Collector, against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed in part, and reversed in part.

See, also, 314 Ill. 378, 145 N. E. 725.Appeal from Lake County Court; Perry L. Persons, Judge.

E. V. Orvis, of Waukegan, and Carl S. Jefferson, of Chicago, for appellant.

Ashbel V. Smith, of Waukegan (Arthur Bulkley and Sidney H. Block, both of Waukegan, of counsel), for appellee.

HEARD, J.

This is an appeal from the judgment of the county court of Lake county, Ill., overruling objections of appellant to the application of appellee for an order of judgment and sale against real estate of appellant returned delinquent for nonpayment of taxes for the year 1924.

[1][2] In the levy for the county tax there was an unitemized amount of $20,000 levied for miscellaneous claims. The levy for general county purposes was $285,400. In the town of Libertyville there was a levy of $500 for unitemized miscellaneous expenses and town supplies. The total levy for town tax was $3,500. In the town of Grant there was a levy of $400 for unitemized contingent expenses. The total levy for the town was $2,100. In the town of Shields there was an unitemized levy of $1,900 for contingent expenses. The total levy for the town was $4,500. This court has recognized the necessity for an assessment of a small amount for contingent or miscellaneous expenses, for the reason that it is not possible to foresee all contingenciesrequiring the expenditure of money. Such levy, however, must be a very small proportion of the entire tax. The right of the taxpayer to have separately stated the purposes for which the tax is levied is a substantial right, of which he cannot be deprived through the guise of possible needs. People v. Millard, 307 Ill. 556, 139 N. E. 113;People v. Wabash Railway Co., 314 Ill. 388, 145 N. E. 734. When these respective levies are tested by the rules heretofore laid down by this court, they must be held to be invalid, and the court erred in not sustaining appellant's objections to the same.

[3] In the towns of Fremont, Libertyville, Avon, Grant, Warren, and Newport, respectively, there was a levy of 66 cents on each $100 for road and bridge tax, the excess of 16 cents in each case being based upon consents of the boards of town auditors at special meetings held before the first Tuesday in September. The amendment to the Township Organization Act of 1923 (Laws 1923, p. 628) authorizes special meetings of boards of town auditors. This amendment, however, did not change the meaning of section 56 of the Roads and Bridges Act (Smith-Hurd Rev. St. 1925, c. 121, § 62), which authorizes the extension of a levy by the highway commissioner of a greater rate than 50 cents on each $100. This court has repeatedly held section 56 to mean that the consent of the town auditors can only legally be given at its regular meeting on the first Tuesday of September before the making of such levy by the commissioner. The full audit of the claims of the highway commissioner can only be made on the first Tuesday in September, and before that time it cannot be definitely ascertained what amount is necessary to be raised by taxation. The objection to the excess of 16 cents in each of these towns should have been sustained.

[4] In the town of Shields the highway commissioner levied a lump sum for road and bridge purposes, instead of stating separately the several amounts to be levied for the various purposes, as required by law, and filed his certificate with the county clerk accordingly. Upon the trial the commissionerof highways of the town testified that he was present at the meeting of September 2, 1924, and at that time it was determined that it would require $7,000 for the construction of new roads and $33,000 for the maintenance of roads, and that the rate of tax necessary to be levied for 1924 would be 40 cents on each $100, and that the total amount to be raised was $40,000. A motion was made by appellee to amend the certificate in accordance with the facts. An amended certificate was made and offered in evidence. While the law permits amendments of public records, so as to make them state the facts, the amendment could be of no avail in this case, for the reason that the certificate required by section 56 to be filed in the office of the county clerk was not itemized, and the information conveyed by the itemization is needful to enable the county board to exercise an advisory judgment in approving the amount of the levy. People v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 314 Ill. 455, 145 N. E. 727. The court should have sustained appellant's objection to this tax.

[5] It is argued by appellant that the record does not show that there was any necessity levy taxes for damages for laying out roads and...