Sawyer v. the City of Alton

• Decision Date: 31 December 1841
• Citation: 1841 WL 3271,4 Ill. 127,3 Scam. 127
• Parties: Seth T. Sawyer, plaintiff in error,v.The City of Alton, defendant in error.
• Court: Illinois Supreme Court

3 Scam. 127

4 Ill. 127

1841 WL 3271 (Ill.)

Seth T. Sawyer, plaintiff in error,

v.The City of Alton, defendant in error.

Supreme Court of Illinois.

December Term, 1841.

Error to Madison.

The interest of a member of a municipal corporation, and a taxpayer, is too remote to exclude him from being a witness in favor of the corporation, in a suit to recover a tax or penalty imposed by the corporation.

A party cannot assign for error the admission of testimony to which he did not except. ^a

Under the constitution of Illinois, when property is to be taxed, the mode of levying the tax must be by valuation, and the tax must be uniform: but the legislature possesses the power to impose such other taxes as may be consonant to public justice and the circumstances of the country may require.

A poll or capitation tax, without regard to property, is constitutional; and so is the act of the legislature requiring road service or labor from each male inhabitant between the ages of 21 and 50 years. ^b

The constitution of Illinois is not to be regarded as a grant of power, but rather as a restriction upon the powers of the legislature; and it is competent for the legislature to exercise all powers not forbidden by that instrument, nor delegated to the general government, nor prohibited to the state by the constitution of the United States. ^c

This cause was heard in the Madison Circuit Court, at the February term, 1840, before the Hon. Sidney Breese.

Wm. Martin, for the plaintiff in error.

S. T. Sawyer, pro se:

The third error is as to the constitutionality of the law upon which the suit is brought, and one which is desired to be discussed and to have decided.

The plaintiff contends that the said tenth section of said act, Laws of 1837, 22, is in violation of the twentieth section of the eighth article of the constitution of the state of Illinois, R. L., 46; Gale's Stat., 35; which section is, that the mode of levying a tax shall be by valuation, etc.

That this is a tax there can be no doubt, as appears by the context of the very act, as well as by the sixteenth section of the law of 1835, concerning public roads: Laws of 1835, 184; Gale's Stat., 598.

That this road labor is a tax there can be no doubt. It matters not how or in what shape the tax is levied, whether in money, in service, or in kind, it is the same to the payor: Say's Political Economy, B 3, chap. 8, p. 450, et seq.

The second error assigned is, that the court permitted improper testimony, in admitting evidence of a written notice, when it was not produced nor its absence accounted for: Norris' Peake's Ev., 140; 3 Yeates, 271; 1 Dallas, 424; 11 Johns., 260; 10 Mass., 327; 4 Yeates, 340.

The best evidence must be first produced, which the nature of the case is capable of: 1 Gilbert's Law Ev., 4; 1 Stark Ev.

The first error assigned is, that Miller, the witness, was incompetent, he being a resident taxpayer in the city of Alton, and having a direct interest in the event of the suit.

At common law, no member of a corporation could be a witness in any case where he was to gain or lose by the suit. To remedy this evil, divers acts of Parliament were passed, for instance, the statute of Wilton, making hundreders competent witnesses for or against the hundred.

Also, where a part of the penalty of a statute was given to the poor or others of the parish or hundred, etc., as 2 Geo. III., chap. 19, sec. 5; also, 33 Geo. II., etc., and other English and American statutes upon similar subjects.

Also, so considered by our own legislature, in ordaining that the supervisor of the district should be a competent witness for the prosecution: Acts of 1835, sections 28, 128; Gale's Stat., 661.

A liability for costs will render a witness incompetent: Main v. Nenson, 1 Anthon's N. P.; Peake's Ev., 231, note.

An inhabitant of a city is not a competent witness in support of a prosecution, where the penal benefit inures to the city: Supreme Court of Massachusetts, 1797, MS.; Norris' Peake's Ev., 220, note; Commonwealth v. Kiegler, 2 Esp. N. P., 711-13.

W. S. Lincoln, N. D. Strong and Junius Hall, for the defendant in error.

TREAT, Justice, delivered the opinion of the court.¹

This was an action instituted before the mayor of the city of Alton, by the defendant in error, against the plaintiff in error, to recover the penalty of three dollars imposed by the tenth section of the “Act to incorporate the city of Alton,”² approved the 21st of July, 1837, for a failure to perform three days' labor on the streets. Judgment was rendered in favor of the defendant in error, for the amount claimed, and an appeal prosecuted by the plaintiff in error to the Circuit Court, where the cause was tried by the court and the judgment of the mayor affirmed.

The bill of exceptions shows that, on the trial in the Circuit Court, the defendant in error called as a witness one Miller, a resident and taxpayer of the city of Alton, for the purpose of proving that the plaintiff in error was notified to perform the labor on the streets, to whose competency as a witness the plaintiff in error objected; but the court overruled the objection and permitted the witness to testify, the plaintiff in error excepting.

The witness, in answer to a question by the defendant in error, stated that he had given the notice to the plaintiff in error, and upon being interrogated by the plaintiff in error, said the notice was in writing. No exception appears to have been taken to this testimony of the witness. It is now assigned for error,

First. The court erred in permitting the witness Miller to testify;

Second. In permitting the witness to speak of the written notice, without producing the original, or giving the plaintiff in error notice to produce it;

Third. In rendering judgment for the defendant in error because the tenth section of the act to incorporate the city of Alton, and under which the defendant in error claimed to recover, is in violation of the constitution of this state.

The first assignment of error raises the question, whether an inhabitant of a municipal corporation, being a tax payer, is a competent witness in behalf of the corporation, when a party to a suit. In England he was not a competent witness, until made so by statute. That rule seems not to have prevailed in this country. In the case of Bloodgood v. The Overseers of Jamaica,¹ which was an action to recover a penalty, the court says, “It is true that the penalty, if recovered, is to be applied for the support of the poor of the town in which the witness is liable to be taxed for that object, but such an interest is too remote and contingent to exclude the witness.” In the case of the Trustees of Watertown v. Cowen,² the chancellor remarks, “The remote and contingent interest of a corporator in a mere municipal corporation is not sufficient to exclude him as a witness in behalf of the corporation.” The same rule seems to have been adopted in Connecticut, New Jersey, New Hampshire and other states. The interest of the witness is so trifling that it cannot be supposed to give an undue bias to his testimony. There is often a necessity for his testimony, without which the corporation would be unable to establish its rights. We do not, therefore, hesitate to concur in the rule.

The second assignment of error cannot avail the plaintiff in error, for the record nowhere shows that he...