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

• Decision Date: 22 June 1927
• Docket Number: No. 18116.,18116.
• Citation: 157 N.E. 200,326 Ill. 179
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. STEWART, County Collector, v. CHICAGO, M. & ST. P. RY. CO.

326 Ill. 179

157 N.E. 200

PEOPLE ex rel. STEWART, County Collector,

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

No. 18116.

Supreme Court of Illinois.

June 22, 1927.

Applications by the People, on the relation of Roy J. Stewart, collector of McHenry county, for judgment and order of sale of lands for delinquent taxes. From judgments for taxes found to be delinquent, the Chicago, Milwaukee & St. Paul Railway Company appeals.

Affirmed in part, and reversed in part.Appeal from McHenry County Court; Charles P. Barnes, Judge.

D. T. Smiley, of Woodstock (C. S. Jefferson, of Chicago, of counsel), for appellant.

Alford H. Pouse, State's Atty., of Woodstock, for appellee.

DE YOUNG, J.

The collector of McHenry county made applications at the June term of each of the years 1924 and 1925 of the county court of that county for judgment and order of sale of lands returned delinquent for nonpayment of taxes levied for the years 1923 and 1924. The Chicago, Milwaukee & St. Paul Railway Company filed objections to certain of these taxes. After postponements from time to time the applications were heard together on November 1, 1926. Of the objections two were sustained and seven were overruled. Judgment was rendered for the taxes found to be delinquent, the causes were consolidated for the purpose of a review, and this appeal by the railway company followed.

Appellant objects that the county tax for the year 1923 extended against its lands in the sum of $1,416.59 is void because the report of the finance committee of the board of supervisors recommending the appropriations and tax levy was not adopted by an aye and nay vote, as required by section 54 of the County Act as amended by act approvedJune 24, 1921 (Laws 1921, p. 388). Smith-Hurd Rev. St. 1923, p. 565, c. 34, § 55. The record of the meeting of the board of supervisors at which this particular county tax is levied, held in September, 1923, was introduced in evidence. It fails to show an aye and nay vote on the adoption of the finance committee's report or on any resolution making appropriations for county purposes. The county clerk, however, testified that the roll had been called upon the question of making those appropriations and that he had recorded the vote on a tabulation sheet designed to show how the members voted at meetings of the board of supervisors. On this sheet, which was introduced in evidence, appears the heading ‘Finance,’ with the words ‘aye’ and ‘nay’ under it. The numeral ‘I’ is shown thirteen times on as many lines under the word ‘aye.’ No marks appear in the ‘nay’ column, nor is the name of any supervisor written on the sheet. At a meeting of the board of supervisors held in March, 1925, a resolution was adopted by an aye and nay vote amending the record of the meeting of September, 1923. The record as amended shows the names of the thirteen supervisors who attended that meeting; that each voted aye upon the question of the adoption of the finance committee's report; and that no vote was cast in the negative. H. M. Turner, a supervisor who attended the meeting of September, 1923, testified that the clerk called the roll of the members of the board on the question whether the tax levy should be adopted.

[1][2][3][4][5][6] Appellant, however, insists that the amendment of the record is ineffective decause: (a) There was a long lapse of time between the meeting at which the tax was levied and the meeting at which the record was amended; (b) the amendment was made without notice of leave of court; and (c) the evidence upon which it was made was insufficient and afforded no foundation for that purpose. The right of legislative or collective bodies to amend their records does not depend upon statute, but it is a right common to such bodies generally. People v. Chicago & Eastern Illinois R. Co., 314 Ill. 382, 145 N. E. 714;People v. Ross, 272 Ill. 285, 111 N. E. 987. The lapse of time between the making of the original record and the amendment could easily be accounted for and excused on the ground that the members of the board of supervisors had no knowledge that the informality in the original record would affect the validity of the tax. The tabulation sheet, which purported to show, on a call of the roll, the votes of the supervisors at their meeting in September, 1923, in connection with the testimony of the county clerk and supervisor Turner, afforded a sufficient basis for an amendment showing that an aye and nay vote had been taken. This evidence was admissible upon the hearing of the objection whether the record was then sought to be amended in court (People v. Illinois Central Railroad Co., 319 Ill. 266, 149 N. E. 749), or had previously been amended by the board of supervisors (People v. Chicago & Eastern Illinois Railway Co., supra). One of the purposes of the third paragraph of section 191 of the Revenue Act is to provide that upon the application for judgment and order of sale of land for the nonpayment of a delinquent tax, an amendment of the record may be allowed when there has been an attempt to comply with the law but because of some informality it is ineffective. Smith-Hurd Rev. St. 1925, p. 2130, c. 120, § 179; People v. New York Cent. R. Co., 314 Ill. 429, 145 N. E. 593. The burden is upon the objector to sustain his objection to the tax. People v. Hassler, 262 Ill. 133, 104 N. E. 177;People v. Chicago, Burlington & Quincy R. Co., 290 Ill. 327, 125 N. E. 310;People v. Hines, 293 Ill. 419, 127 N. E. 693;People v. Millard, 307 Ill. 556, 139 N. E. 113;People v. Chicago, M. & St. P. R. Co., 314 Ill. 378, 145 N. E. 725. It is sufficiently clear that an aye and nay vote was taken at the meeting of the board of supervisors in September, 1923, and the county court properly overruled the objection to the county tax.

[7][8][9] In each of the years 1923 and 1924 the tax levy of the town of Burton amounted to $650, of which $300 was for ‘town purposes.’ Two of appellant's objections, one in each year, were made to this portion of these tax levies. The item of $300 for town purposes out of a total levy of $650 renders nearly one-half of the tax unitemized. To justify the levy of a tax for contingent or miscellaneous expenses or for unitemized town purposes, the sum so levied must be a very small proportion of the entire tax. People v. Wabash R. Co., 321 Ill. 39, 151 N. E. 601;People v. Chicago, M. & St. P. R. Co., 319 Ill. 415, 150 N. E. 247;People v. Wabash Railway Co., 314 Ill. 388, 145 N. E. 734;People v. Millard, supra; People v. Cleveland, C., C. & St. L. R. Co., 256 Ill. 501, 100 N. E. 250;People v. Chicago, Burlington & Quincy R. Co., 253 Ill. 100, 97 N. E. 245. The taxpayer's right to have separately stated the purposes for which a tax is levied is a substantial right, and he cannot be deprived of it under the guise of possible needs of the municipality. People v. Wabash R. Co., supra; People v. Chicago, M. & St. P. R. Co., supra. Appellant's objections to the portions of the taxes levied on its real property by the town of Burton for unitemized town purposes, amounting to $46.91 in the year 1923 and to $47.19 in the year 1924, should have been sustained.

[10] The certificate of tax levy for the year 1924, signed by the president and clerk of the board of directors of school district No. 11 in McHenry county, was dated August 6, 1924, and appellant objected that the levy was not made on or prior to the first Tuesday in August, as required by section 190 of the School Act (Smith-Hurd Rev. St. 1925, c. 122, § 213). On the hearing of this objection Jacob J. Freund, the clerk of the directors, testified that the school district's tax levy for the year 1924 was made at the meeting of the directors held on June 22, 1924, that all the directors were present at the meeting, and that he made a record of the proceedings as follows:

‘Meeting held by the Board of Dir. for the purpose of levying taxes for the year 1924. Fifteen hundred dol. being the am. required Teaching, Fuel & Incidentals. It was also moved and seconded that Miss Winn should be retained at $135 a month. No further business the board adjourned.

‘Dated this 22nd day of June, 1924.

‘J. J. Freund, Clerk.’

[11] Appellant objected to the introduction of the record on the ground that it failed to show a valid tax levy. The objection was overruled, and the record was admitted. The witness was asked whether at the meeting a motion was made, seconded, and carried that a tax in the sum of $1,500 be levied for that year, and he answered in the affirmative. Appellee then moved that the witness, as clerk of the school directors, be allowed to amend the record to conform to what actually occurred at the meeting. The motion was granted and the record was amended. The testimony was sufficiently certain to justify the court in permitting the amendment. People v. Illinois Cent. R. Co., 319 Ill. 266, 149 N. E. 749. It is not necessary that the certificate of the levy be signed on the day the levy is made, and the fact that the certificate was dated August 6 did not show that the levy was made on that day. The objection was properly overruled.

[12]The tax levied by school district No. 30 in McHenry county was extended upon a certificate dated August 9, 1923. Appellant objected that the levy was not made on or prior to the first Tuesday in August, and that the tax on its real property, amounting to $204.24, was void. George B. Myers, the clerk of the school directors, testified that a meeting was held on the 1st or 2d day of August, 1923, when he and Sommer, another director, decided that the levy should be $900, subject to the approval of Tamblyn, the president of the directors, who was then absent; that he remembered levying the tax; that he kept the record of the directors' meetings on loose-leaf blanks; and that he had searched for the record of the meeting relating to the tax levy in question but that he could not find it. The certificate was signed by himself and approved by the president...