Prindable v. New York Cent. R. Co.

• Decision Date: 15 September 1948
• Docket Number: No. 30367.,30367.
• Parties: PEOPLE ex rel. PRINDABLE v. NEW YORK CENT. R. CO.
• Court: Illinois Supreme Court

400 Ill. 507

81 N.E.2d 201

PEOPLE ex rel. PRINDABLE

v.NEW YORK CENT. R. CO.

No. 30367.

Supreme Court of Illinois.

May 20, 1948.

As Modified on Denial of Rehearing Sept. 15, 1948.

Appeal from St. Clair County Court; Harlington Wood, Judge.

Action by the People, on the relation of D. A. Prindable, County Treasurer, ex officio county collector, against New York Central Railroad Company for judgment and order of sale of real estate for delinquent taxes of 1944. From an adverse judgment, the New York Central Railroad Company appeals.

Affirmed.

MURPHY, C. J., dissenting.

Farthing, Farthing & Feickert, of Belleville, for appellant.

L. P. Zerweck, State's Atty., and Kevin Kane, both of Belleville, and R. J. Kramer and John C. Roberts, both of East St. Louis, for appellee.

SIMPSON, Justice.

This is an appeal from a judgment of the county court of St. Clair County entered in an action in which the county treasurer, ex officio county collector, applied for judgment and order of sale of real estate for delinquent taxes of 1944. Appellant filed written objections to various items of taxes, but the only one involved on this appeal is with reference to the levy for educational purposes by school district No. 189, St. Clair County. The objection is that there is an excessive levy of 1.118 per cent included in the 2.118 per cent rate extended for educational purposes. The legal rate which the board could levy without authorization for an increase by election was one per cent. Appellant contends that the remainder, or 1.118 per cent, represents the total percentage of increase purportedly authorized at three different elections held in 1915, in 1922 and 1929, respectively. One of appellant's objections is that the proposition as printed on the ballots as a part of said elections was stated in language so indefinite and uncertain that a voter could not determine the percentage of increase for which he was voting. Another objection is that at the 1922 election the proposition printed on the ballot for an increase combined the proposal to increase both the educational rate and the building rate in one question, thereby depriving the voter of the opportunity to make a selection. It is also urged that the ballots at the 1922 and 1929 elections were in bad form in that they called for a vote of ‘for’ or ‘against’ instead of a ‘yes' or ‘no’ vote, as was required by section 16 of the Ballot Act.

Objections similar to the ones filed here and questioning the sufficiency of the ballots used in elections where an increase of tax rate for school purposes had been authorized were considered in People ex rel. Pickerill v. New York Central Railroad Co., 391 Ill. 377, 63 N.E.2d 405;People ex rel. Manifold v. Chicago, Burlington and Quincy Railroad Co., 386 Ill. 56, 54 N.E.2d 389;People ex rel. Manifold v. Wabash Railway Co., 386 Ill. 149, 53 N.E.2d 976, and People ex rel. Hempen v. Baltimore and Ohio Railroad Co., 379 Ill. 543, 42 N.E.2d 69. In each of these cases it was held that the evidence did not establish the objection, in that it could not be determined that the ballot actually used was subject to the objections made. The substance of the holdings in the several cases referred to was that the burden was upon the objectors to prove that the irregularities complained of actually appeared on the ballots used at the election, and the proof being insufficient to establish such fact the objections were overruled. Appellant in this case contends that it has overcome the deficiency of proof found in the cases above cited and that the defects pleaded in its objections are shown by the evidence to have been present on the ballots that were actually used at the elections.

Upon the trial it was stipulated that appellee made a prima facie case for judgment for the taxes to which objection was made. Appellant introduced in evidence in support of its objection the resolution of the board of education calling the election of April 17, 1915; the resolution of the board of education calling the election of April 8, 1922, and the resolution calling the election of April 13, 1929. Also, appellant introduced in evidence a canvass of the returns of the election held April 17, 1915, the same for the returns of the election held April 8, 1922, and of the election held April 13, 1929, showing in each case the proposition to levy additional tax was carried. Also, appellant introduced a purported transcript of the record of a bond issue of the district in 1915. This transcript was not identified by anyone. It contained a paper headed ‘School Election Ballot,’ but this was not marked as a specimen ballot or a sample ballot. Louis Beasley, a former election clerk, when his attention was called to this ballot, testified that he had no independent recollection, outside of seeing the ballot, as to just what it purports to be but that he would say it was a ballot, or rather a sample ballot, used in the election on April 17, 1915.

William L. Heckert and Henry Albrecht, witnesses for appellant, testified that appellant's exhibit No. 11, taken from a transcript found among the files of the Mississippi Valley Trust Company of St. Louis, Missouri, was an official ballot of the type prepared for use at the election in April, 1922. They each testified, however, that they had no independent recollection of the ballots voted at the April, 1922, election, but only from refreshing their memory by looking at this exhibit could they testify.

Adrienne Pe Leate testified that she was employed at the board of election commissioners' office in East St. Louis and made a search for official ballots in that office for school district No. 189 for the school elections held in 1915, 1922 and 1929; that she found nothing in connection with the elections of 1915 and 1922. In connection with the 1929 election she found a bunch of papers which she identified as a scrapbook of newspaper notices of election and specimen ballots and other papers which have to do with the election of 1929. On page 125 of the scrapbook she found what she testified was a specimen ballot used at the school board election on April 13, 1929. She had no personal knowledge as to this ballot or whether it was a specimen ballot that was used at that election. She said, ‘All I know is what I found in this book by looking at it and I know from looking at it, it is market ‘Specimen Ballot.“

John C. Reimann, witness for appellant, testified he was formerly employed in the office of board of election commissioners in East St. Louis and that he started the scrapbook to which reference was made. He further testified that he had no personal recollection and that he could not have a recollection of 17 years ago. Referring to the ballots used in the 1929 election he testified that he wouldn't be able to say that they had been destroyed and that ‘It is possible those ballots are still in the vault upstairs, at that time some things were kept in a room upstairs I wouldn't know.’ The record does not show that the vault referred to was ever searched.

Section 127 of the School Code (Ill.Rev.Stat.1943, chap. 122, par. 136) provides that the board of education has all the duties and power of boards of directors and is subject to the same limitations. Section 112 provides that the clerk of the board of directors shall keep in a punctual, orderly and reliable manner a record of the official acts of the board. Ill.Rev.Stat.1943, chap. 122, par. 120. These sections of the school code are substantially the same in the above respect as sections 127 and 112, respectively, of the 1909 School Law, which was continued in the school law and was in full force and effect in 1915, 1922 and 1929.

The above section requiring the clerk to keep a record of the ‘official acts of the board’ requires that a record be kept of the essential steps in levying a tax. People ex rel. Toman v. Chicago Heights Terminal Transfer Railroad Co., 375 Ill. 590, at page 597, 32 N.E.2d 161. Every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the records of the body authorized to act upon them. People ex rel. Stuckart v. Chicago, Lake Shore and Eastern Railway Co., 270 Ill. 477, at page 483, 110 N.E. 720. It cannot be disputed that a legal ballot is one of the essential steps in levying the tax which is objected to in this case. And, where public officials are required to keep a record of their proceedings, such record constitutes the only lawful evidence of action taken, and cannot be contradicted, added to or supplemented by parol. Gietl v. Com'rs of Drainage Dist. No. 1, 384 Ill. 499, at page 502, 51 N.E.2d 512.

This court has often held that the officers charged with the keeping of the record of the action of taxing bodies may be permitted in the presence of the court to amend the record in accordance with the facts shown by the evidence (People ex rel. Coffman v. Illinois Central Railroad Co., 314 Ill. 339, at page 343, 145 N.E. 719), yet it does not appear from the record herein that the court permitted any amendment of the school board record or that any such amendment was asked. The proof concerning the ballot used at the election was by evidence other than the record, i.e., by aprol. In People ex rel. Yohe v. Hubble, 378 Ill. 377, 38 N.E.2d 38, it was held that the contents of lost or destroyed records may be proved by parol and that the rule that the record is the only lawful evidence applies only when the parol evidence is offered to supply, amend, contradict or supplement the record, and does not apply when the record did exist but has been lost. However, in the instant case a part of the record was introduced in evidence in regard to the elections and it was sought by the introduction of the parol evidence to supplement the records by showing the form of the ballot used.

The record also shows that the transcript of the 1915 bond issue was not identified by anyone. The only showing as to...