People v. Dummer

• Decision Date: 24 October 1916
• Docket Number: No. 10654.,10654.
• Citation: 274 Ill. 637,113 N.E. 934
• Parties: PEOPLE v. DUMMER.
• Court: Illinois Supreme Court

274 Ill. 637

113 N.E. 934

PEOPLE

v.DUMMER.

No. 10654.

Supreme Court of Illinois.

Oct. 24, 1916.

Appeal from Municipal Court of Chicago; Ralph F. Robinson, Judge.

Suit by the People of the State of Illinois against W. F. Dummer. From a judgment against defendant, he appeals. Judgment reversed.

Wm. Annan Taylor and Scott, Bancroft, Martin & Stephens, all of Chicago, for appellant.

Maclay Hoyne, State's Atty., of Chicago (Morris Schaeffer and Henry A. Berger, both of Chicago, of counsel), for the People.

CARTWRIGHT, J.

The people of the state of Illinois, appellee, brought two suits in debt, as cases of the first class, in the municipal court of Chicago against W. F. Dummer, appellant, and filed statements of claim for taxes alleged to be due from the appellant on his personal property in the town of North Chicago. The cases were consolidated, and an amended statement filed, including taxes for the years 1907 to 1914, inclusive. The appellant's affidavit of merits set up various defenses against the claim, and the issue was tried by the court without a jury, resulting in a finding and judgment against appellant for $19,415.99 and costs, from which he appealed.

It is assigned for error that the municipal court had no jurisdiction of the cause of action, and that the judgment is void for that reason.

By the act creating the municipal court, jurisdiction was conferred upon it in six classes of cases. Cases of the first class are those in which the amount claimed by the plaintiff exceeds $1,000, and if the municipal court had jurisdiction of this case it was by virtue of its being a case of that class. Such cases are defined by section 2 of the statute as follows:

‘Cases to be designated and hereinafter referred to as cases of the first class, which shall include: (a) All actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars $1,000; (b) all actions for the recovery of personal property when the value of the property sought to be recovered as claimed by the plaintiff exceeds one thousand dollars ($1,000); and (c) all actions for the recovery of damages for the conversion of personal property, and actions for the recovery of damages for injuries to personal property, when the amount of damages sought to be recovered, as claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).’ Hurd's Rev. St. 1915-16, c. 37, § 265.

This action not being for the recovery of personal property or for the recovery of damages for the conversion of or injuries to personal property, it did not come under division (b) or (c), and could only come, if at all, under division (a), conferring jurisdiction in actions on contracts, express or implied, and that is the claim of counsel for appellee.

A contract is an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing. 2 Blackstone's Com. 442; 2 Kent's Com. 449; 1 Parsons on Contracts, § 1. It may be express where the terms of the agreement are declared by the parties in writing or verbally at the time it is entered into, and, of course, there is no express promise by a property owner involved in a levy of taxes upon his property, and none was claimed in this case. A contract may be implied where an agreement in fact is presumed from the acts of the parties, and this is the proper meaning of an implied contract. An illustration of such a contract is where one performs services for another under circumstances showing that they were not intended to be gratuitous and the services are accepted. An example of a contract implied in fact is found in Chudnovski v. Eckels, 232 Ill. 312, 83 N. E. 846, where the plaintiff had entered defendant's street car and paid her fare, from which the law recognized the existence of a contract of the defendant to carry her safely. The law presumes a contract of a common carrier to be answerable for the goods he carries or to exercise the degree of care declared by law by receiving as a common carrier a passenger to be carried for hire. Another case is Harty Bros. v. Polakow, 237 Ill. 559, 86 N. E. 1085, where the liability of the owner depended both upon the obligation imposed upon him by the statute and his acts. The only difference between an express contract and an implied contract in the proper sense is that in the former the parties arrive at an agreement by words, either verbal or written, while in the latter the agreement is arrived at by a consideration of their acts and conduct. 2 Page on Contracts, § 771. It is clear that there is no contract between the people and a taxpayer in that sense.

The term ‘implied contract’ has also been applied to a class of obligations which are created by law without regard to the assent of the party upon whom the obligation is imposed, on the ground that they are dictated by reason and justice. They are not contract obligations in the true sense, because there is no agreement of the parties, but they are constructive contracts created by the law. A case of that kind is where one has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it, but it belongs to another. In such a case the right of the plaintiff does not depend upon any principle of contract between him and the defendant, but the right to recover is governed by rules of equity, although the money demanded may be recovered in an action in form ex contractu. The liability exists from an implication of law arising from the facts and circumstances, independent of an agreement, or even a presumed intention of the defendant. In those cases the idea of a contract is purely fictitious, since there are none of the elements of a contract present, and the intention of the parties is entirely disregarded. Board of Highway Com'rs v. City of Bloomington, 253 Ill. 164, 97 N. E. 280, Ann. Cas. 1913A, 471. Where a contract is implied in fact, it results as a legal inference from the facts and circumstances, although not formally stated in words, and the difference between such a contract and an express contract is in the means of proof, whether by words or by conduct. In contracts created by construction of law liability exists from an implication of the law arising from facts and circumstances independent of intention. 6 R. C. L. 558. Such contracts are contracts merely in the sense that a remedy is by the statutory remedy of assumpsit and are created and governed by the principles of equity.

As there is no express contract of the taxpayer to pay his taxes, and none is implied in fact, the question to be determined here is whether such contract is created by construction of law, regardless of an agreement or presumed intention, so as to come within the terms of the statute concerning jurisdiction of the municipal court. If any contract of the owner of property to pay taxes is to be implied by the law, it must result from the existence of the duty to pay them, but the mere existence of the duty does not, of itself, raise any implied promise to perform it. It may be conceded that the property owner owes to the government the duty to pay taxes in order that the government may be able to perform its functions. In Rae v. Hulbert, 17 Ill. 572, the court had under consideration the statute providing that a defendant in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff, might set up the same and have them allowed him upon the trial, and the question was whether a judgment was a contract. The court said that in the statute the words ‘contract’ and ‘agreement’ were used in their ordinary sense, and not with the intention of embracing every imaginable litigation upon a cause of action, and further:

‘In one sense it is true that every member of society impliedly agrees to pay all judgments which may be regularly rendered against him, and, in the same sense, does he impliedly agree to make amends for all torts which he may commit.’

The mere existence of the duty to pay taxes lawfully assessed is not different from any other duty owing to the government, the public or individuals, and the law does not imply a contract to do a thing merely because there is a duty to do it.

In determining whether the law will imply a contract of the property owner to pay taxes a consideration of the nature of taxation is important. A definition of taxes by Judge Cooley is as follows:

‘Taxes are defined as being an enforced proportional contribution of persons and property levied by the authority of the state for the support of the government and for all public needs.’ Cooley on Taxation, 1.

The power of taxation may be...