People v. Straus

• Decision Date: 06 April 1934
• Docket Number: No. 22126.,22126.
• Citation: 189 N.E. 877,355 Ill. 640
• Parties: PEOPLE v. STRAUS et al.
• Court: Illinois Supreme Court

355 Ill. 640

189 N.E. 877

PEOPLE

v.STRAUS et al.

No. 22126.

Supreme Court of Illinois.

Feb. 25, 1934.

Rehearing Denied April 6, 1934.

Error to Superior Court, Cook County; Robert E. Gentzel, Judge.

Suit by the People of the State of Illinois against Melvin L. Straus, trustee, and others. To review a decree for complainant, defendants bring error.

Affirmed.Gottlieb & Schwartz, of Chicago (Ulysses S. Schwartz, Claude A. Roth, and Harry E. Smoot, all of Chicago, of counsel), for plaintiffs in error.

Thomas J. Courtney, State's Atty., of Chicago, and Poppenhusen, Johnston, Thompson & Cole, of Chicago (Hayden N. Bell, Robert S. Cushman, Jacob Shamberg, Floyd E. Thompson, and Edward J. Fleming, all of Chicago, of counsel), for the People.

SHAW, Justice.

This is a writ of error by Melvin L. Straus, as trustee, and others, to the superior court of Cook county, seeking the reversal of a decree of foreclosure entered by that court against certain lots in Cook county for forfeited and past-due taxes, penalties, interest, and costs in the sum of $165,683.49. The proceedings were in equity under the provisions of section 253 of the Revenue Act (Smith-Hurd Rev. St. 1931, c. 120, § 238, Cahill's Rev. St. 1931, c. 120, par. 268), which provides for the foreclosure of tax liens by a proceeding in equity in the name of the people whenever taxes for two or more years upon the same description of property shall have been forfeitedto the state. It is the contention of plaintiffs in error that the suit should have been dismissed on their motion because the solicitor for the complainant had no right to appear for the people; that the board of county commissioners of Cook county had no authority to employ the solicitor to represent the people; that the court erred in finding that the property in question had been forfeited for the nonpayment of taxes for two or more years; and that the court erred in the admission of evidence on behalf of the complainant and erred in the entry of the order confirming and approving the sale of the property.

Much argument is devoted to the contention that the solicitor for the complainant had no right to represent the people, but we can find no merit in it, as the question does not affect the rights of plaintiffs in error. That part of the bill of complaint which recites that the people of the state of Illinois appear by a certain solicitor is, at most, an introduction to the gravamen of the complaint and does not constitute a material or traversable allegation. The rights of the parties are not, and necessarily cannot be, affected by the legal status of the solicitor who appears for either of them, but only by the material and issuable allegations presented.

Numerous cases are cited tending to show that it was the proper function of the state's attorney to prosecute this case, and there is much argument for the purpose of showing that the contract between the county commissioners and the solicitor who appeared for the people in the trial court is unconscionable, contrary to public policy, and void. The principal case relied on in this connection is Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120. That case is not in point on this inquiry, because the employment was there directly attacked and not brought collaterally in issue as is attempted here. In Mix v. People, 116 Ill. 265, 4 N. E. 783, 785, we used the following language: ‘The collection of the public revenues is of the utmost importance, and no court should allow a suit of this character to be dismissed because the solicitor who brings it may not happen to be the state's attorney or the attorney general, without good cause shown therefor. There is no statute requiring a bill of this kind to be signed in the official character of either of those officers, as there is with reference to an indictment.’ It sufficiently appears that the board of commissioners' of Cook county authorized the commencement of this suit in the name of the people, and that the people ratified the action through a purchase at the foreclosure sale. The people appear in this court by the state's attorney and Attorney General seeking the affirmance of the decree. Having thus authorized, approved, and ratified everything that was done, it makes no difference to plaintiffs in error whether or not said solicitor was duly authorized to bring this suit. Thompson v. Hemenway, 218 Ill. 46, 75 N. E. 791,109 Am. St. Rep. 239.

Although the record in the case shows that there are delinquent taxes against the property in question for the years 1924, 1925, 1926, 1927, 1928, and 1929, it is contended that there has been no such ‘forfeiture’ as to constitute the necessary condition precedent to an equitable foreclosure under section 253 of the Revenue Act. The argument in support of this position is technical and detailed, and is based in part upon the fact that many of the records introduced on behalf of the people show that certain objections to some of the taxes were at some time or other pending; that as to some of the records the notations of the clerk were obscure and difficult to comprehend; and that some of the records introduced in evidence were not properly verified. In considering the record in this respect it is necessary to bear in mind that it is the purpose of the statute to permit an adjustment, accounting, and collection of back taxes, regardless of omissions or irregularities which might be of such character as to be fatal to a tax title and therefore such as might effectually prevent bidding at a tax sale. The complexity of our tax assessing and tax collecting laws is such as to cast many difficulties in the path to a valid tax title, and it was obviously the legislative intent in passing section 253 to provide a remedy which would prove beneficial both to the people and the taxpayer. In equity, with all parties in court, it is at once possible for the taxpayer to secure for himself all just credits and adjustments and for the people to correct and overcome all technical objections. There is thus provided a remedy for all interested parties by which in one proceeding all past penalties and forfeitures can be determined and liquidated. The taxpayer is afforded the valuable right of paying an ascertained lump sum in settlement of the whole matter, and the people are afforded a sale under a decree which has cleared the title of past technical objections. Sanderson v. Town of La Salle, 117 Ill. 171, 7 N. E. 114.

The section under consideration, being remedial, must be liberally construed to effectuate its purpose, and any other construction would not only fail of that purpose but render it entirely nugatory. Two forfeitures, in fact, are sufficient to confer jurisdiction on a court of equity. Biggins v. People, 106 Ill. 270. The case of People v. Henckler, 137 Ill. 580, 27 N. E. 602, relied upon by p...