People ex rel. Winkler v. Chicago & E.I. Ry. Co.

• Decision Date: 19 October 1929
• Docket Number: No. 19363.,19363.
• Citation: 168 N.E. 294,336 Ill. 506
• Parties: PEOPLE ex rel. WINKLER, County Collector, v. CHICAGO & E. I. RY. CO.
• Court: Illinois Supreme Court

336 Ill. 506

168 N.E. 294

PEOPLE ex rel. WINKLER, County Collector,

v.CHICAGO & E. I. RY. CO.

No. 19363.

Supreme Court of Illinois.

Oct. 19, 1929.

Commissioner's Opinion.

Application by the People on the relation of Walter C. Winkler, Collector of Marion County, against the Chicago & Eastern Illinois Railway Company for judgment and order of sale against respondent's property for delinquent taxes. From the judgment, defendant appeals.

Affirmed in part and reversed in part, and remanded.Appeal from Marion County Court; S. N. Finn, Judge.

John L. Kagy, of Salem, and Craig & Craig, of Mattoon (K. L. Richmond, and G. Bruce Hill, both of Chicago, of counsel), for appellant.

Charles F. Dew, of Centralia, for appellee.

PARTLOW, C.

Appellee, the county collector of Marion county, made application to the county court of that county for judgment and order of sale against the property of appellant, the Chicago & Eastern Illinois Railway Company, for delinquent taxes. Appellant filed objections to $1,541.10 levied as a county bond issue tax, and to $154.11, levied in three separate items, for light, water, fuel, supplies, and repairs for the courthouse and jail. Upon the hearing, appellee made a written motion to strike from the files the objection of appellant to the county bond tax. The motion was allowed, the objection was stricken, the objections to the other taxes were overruled, judgment and order of sale were entered, and an appeal has been prosecuted to this court.

The objection to the county bond tax alleged that the clerk extended a rate of ten cents to produce $14,200 for bonds and interest; that a proposition to levy an additional tax for this purpose was submitted to the electors at the general election of November 4, 1924; that the total vote for the state's attorney was 13,293, a majority of this vote being 6,647; that 5,722 votes were cast for the tax and 3,975 votes were cast against it; that the proposition did not receive a majority of all votes cast, it failed to carry, and the tax is not authorized in addition to the limitation for general county purposes.

The motion of appellee to strike this objection from the files alleged that appellant in 1925 made an attack upon the election of November 4, 1924, and that election is not now, and cannot be, a question of litigation raised by the objector, for the reason that the same objector filed its objections in the county court in 1925 raising a constitutional question as to the election, and made a specific attack upon the election, the ballot, and the notices; that the objections were heard by the county court and a judgment entered; that the same cause was thereafter heard in this court and reported in 319 Ill. 366, 150 N. E. 286; that the objector in said cause could then have extended its objections to the election and raised the same issue it is now raising; that the objections now filed, and the questions involved therein, are res judicata, and by the position assumed in its objections to the tax of 1924 the objector is now estopped from its present position and claim.

In support of the motion to strike, appellee offered in evidence a part of the objections filed by appellant in 1925 to the 1924 tax and a part of the argument made in a brief filed by appellant in this court in that cause. The argument was to the effect that the vote taken on the bond issue was not a vote upon a constitutional question; that the proposition as to the bonds was carried by a majority of the votes at the election; that the bonds were legally issued, and 50 cents and 14 cents of the tax were legal; and that the 64 cents deducted from 75 cents would leave only 11 cents for the state-aid roads.

There are several reasons why the judgment as to the county bond tax will have to be reversed. Section 191 (paragraph 209), chapter 120, Cahill's Stat. 1927, p. 2107, provides that, if a defense, specifying in writing the particular cause of objection, be offered by any person interested in any of the lands or lots to the entry of judgment against the same, the court shall hear and determine the matter in a summary manner without pleadings, and shall pronounce judgment as the right of the case may be. Appellant filed objections in writing to this tax, as provided in the statute. No complaint is made by appellee as to the form of the objections. They will therefore be presumed to be in proper form until the contrary appears. Appellee was not required to file written pleadings or motions, but he saw fit to file a written motion to strike the objections of appellant from the files. If everything stated in the motion to strike be conceded to be true, it would not justify striking the objections. The motion states that in 1925 appellant filed objections to this tax raising a constitutional question as to the tax and attacking the ballot and notices, and that a judgment was entered. It is not stated what the judgment was which was entered, in whose favor it was entered, on what grounds it was entered, or that it was on the merits or was a final judgment. It alleged that the judgment was afterwards affirmed by this court; that appellant could have extended the objections and raised the points made in this case; that the questions now raised have been adjudicated; that the former judgment is res judicata of them; and that appellant is now estopped from its present position and claim. The motion not only does not give any details or particulars to show what judgment was entered, but it does not even state that the installment of tax involved in the present case was an installment of the same tax objected to in 1925. The burden was on appellee to sustain the motion. Smith v. Rountree, 185 Ill. 219, 56 N. E. 1130;Sawyer v. Nelson, 160 Ill. 629,43 S. E. 728.

Even if the motion to strike had been sufficient, the evidence offered in support of it was not sufficient. Appellee did not offer in evidence the judgment of 1925, which he claimed was res judicata of the questions at issue in this case, and which he claimed estopped appellant from urging the objections in this case. The only evidence offered by appellee was a part of the objections filed by appellant in 1925, together with a part of the argument filed by appellant in that case in this court. These objections and this argument were not identified by appellee before they were admitted in evidence. They were admitted over the objection of appellant, and were not sufficient to sustain appellee's motion to strike. The objections made by appellant in 1925 were sustained by the trial court, and the judgment was affirmed by this court, therefore the judgment sought to be set up by appellee as res judicata and constituting an estoppel was a judgment in favor of the present appellant, and was not in favor of the present appellee.

Appellee seeks to excuse the failure to introduce in evidence the judgment of 1925 by claiming that the opinion of this court in 319 Ill. 366, 150 N. E. 286, states all of the facts; that this court will take judicial notice of its records; and that the opinion was sufficient basis for sustaining the motion to...