People v. Salomon

• Decision Date: 31 January 1868
• Citation: 46 Ill. 333,1868 WL 4876
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. O. H. MINER, Auditor, etc.v.EDWARD S. SALOMON, County Clerk of Cook County.
• Court: Illinois Supreme Court

46 Ill. 333

1868 WL 4876 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. O. H. MINER, Auditor, etc.

v.EDWARD S. SALOMON, County Clerk of Cook County.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

The facts are fully stated in the opinion.

Mr. R. G. INGERSOLL, Attorney General, and Mr. S. D. PUTERBAUGH, for the relator

Messrs. BECKWITH, AYER & KALES, for the respondent.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an application by the Auditor of Public Accounts of this State, for a mandamus against the County Clerk of Cook county, to compel him to extend on the books of the collectors of that county, the equalized tax ordered by the State Board of Equalization.

By the alternative writ the clerk was commanded, in preparing the books for the collectors of taxes, to provide therein five columes for values, specifying what the first and second columns should contain; and that he should extend in separate columns, State, county and all other taxes, against the equalized valuation according to the Auditor's certificate which the clerk had received, in which was set forth the action of the Board of Equalization in respect to Cook county; and in all cases of extension, when the equalized valuation should happen to be fractional, to reject all fractions falling below fifty cents; and that he should extend all fractions of fifty cents or more, as one dollar, and that when the collector's books were completed, he report to the Auditor the valuation as equalized, and the amount of State, county and other taxes charged thereon, and that he make to each collector a certificate of the rate of deduction or addition determined by the Board of Supervisors in the township to which such book should pertain, as required by sections eleven and fifteen, of the ac? entitled “An act to amend the Revenue Laws and to establish a State Board for the Equalization of Assessments,” approved March 8, 1867, and to do and perform all such acts and things in the premises as the law requires, or appear before the Supreme Court forthwith, to show cause why he refused so to do.

Accompanying the petition of the Auditor were the proceedings of the Board of Equalization, and this notice, directed to the clerk, and issued from the office of the Auditor, and bearing date October 15th, 1867: “Sir:--You are hereby notified that the State Board of Equalization, at their session begun on the first Tuesday, being the first day of October, 1867, determined the rate of 24 per cent. to be added to the assessed valuation of all property listed for taxation in the county of Cook for the year 1867. You will, therefore, in pursuance of law, proceed to extend the equalized valuation of all property so listed, by increasing the valuation, as equalized by the Board of Supervisors, at the rate of 24 per cent.”

The clerk made a formal and elaborate return to the writ, in which he takes exception to the action of the board in several particulars, but admits he has disregarded the action of the board, and the “request” of the Auditor to extend the taxes upon “the pretended” equalization made by that board, for the reason, that the act of the General Assembly creating the board, is unconstitutional and void, because it undertakes to establish a mode of ascertaining the value of property subject to taxation, in violation of the constitution, and their proceedings were not in conformity with that act, but so far as related to the county of Cook, were an arbitrary imposition of 24 per cent. to the assessed value of property in that county, without any ascertainment of its real or proportionate value, and ?? prays the judgment of this court whether he ought to extend such taxes upon such pretended equalization of the property of that county.

To this return the relator demurred, and there was a joinder in demurrer.

The first question for us to determine is, what is the character of this return?

Writers of authority on the subject of mandamus, recognize three descriptions of return to the alternative writ, namely: traverses, special returns, or those of confession and avoidance, and a statement in the nature of a demurrer to the writ.

This court has often said, that the alternative writ is in the nature of a declaration, and being so, is open to all the modes of pleading applicable to a declaration, and consequently, the allegations of the writ can be traversed, can be confessed and avoided, by setting up facts which go to avoid its effect, or by raising a question of law upon the facts stated in the writ by way of demurrer.

This return traverses no fact alleged in the writ. It confesses none except the refusal to extend the equalized tax, and in justification thereof, alleges the unconstitutionality of the act establishing the board of equalization, so that, without a demurrer by the relator, the whole question involved was fully presented by the return.

It is certainly so, by the demurrer of the relator, and we are called on to decide upon the validity of an act of a co-ordinate department of the government, whose special prerogative it is to enact laws. Such questions, we have repeatedly said, we approach with diffidence and with reluctance, and with a close observance of the principle, that unless the case be a very clear one of constitutional violation, we will uphold the law; and this. not only because the legislature are not to be presumed to have done an act not warranted by the organic law, but because it must be clearly established they have so done. The small proportion which the actual revenue of the State bore to the real value of the property of the State, under the operation of laws, which, pretending to carry out the behests of the constitution, that all taxes should be levied by valuation, so that every person and corporation should pay a tax in proportion to the value of his or her property, to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly might direct, created wide spread alarm and dissatisfaction, rendering it an absolute necessity that some effective mode should be devised, by which this constitutional provision might be carried out in its true spirit.

The want of such a mode may be well admitted, when the returns of the assessors of the different counties are examined, which were made so late as 1867.

We have extracted from the table accompanying the report of the board of equalization, some startling cases of the gross inequality which prevailed up to the time of the meeting of the board. Reports of the Auditor of Public Accounts, made to the General Assembly in the preceding years, made apparent the same grievances, and that body would have been recreant in their duty if they had not provided a proper correction.

In the county of Cook, the most northerly, as it is the most populous and most wealthy county in the State, horses were assessed in 1867, at an average value of thirty-seven dollars sixty-four cents, cattle at eight dollars thirty-nine cents, mules at thirty-five dollars six cents, sheep at one dollar eleven cents, hogs at one dollar eighty-seven cents, carriages and wagons at thirty-six dollars sixty-nine cents, clocks and watches at twelve dollars seventy-nine cents, pianos ninety-four dollars ninety-seven cents!

In Alexander county, in the extreme southern part of the State, one of the smallest, least populous, and, outside of the city of Cairo, least improved counties of the State, horses were assessed, the same year, at an average value of fifty-six dollars six cents, cattle at sixteen dollars thirty-nine cents, mules at seventy-seven dollars eighty-one cents, sheep at one dollar eighty-five cents, hogs at one dollar eighty-eight cents, carriages and wagons at thirty-six dollars seventy-three cents, clocks and watches at twenty-one dollars seventy-three cents, pianos at two hundred and fifteen dollars fifty-one cents. These instruments in ...