Sellars v. Barrett

• Citation: 185 Ill. 466,57 N.E. 422
• Parties: SELLARS, County Clerk, v. BARRETT et al.
• Decision Date: 17 April 1900
• Court: Supreme Court of Illinois

185 Ill. 466

57 N.E. 422

SELLARS, County Clerk,

v.BARRETT et al.¹

Supreme Court of Illinois.

April 17, 1900.

Appeal from circuit court, Coles county; Frank K. Dunn, Judge.

Suit in chancery by Margaret Barrett and others against Ambrose C. Sellars, county clerk of Coles county. From a decree overruling a demurrer to the bill, defendant appeals. Reversed.J. H. Marshall, H. A. Neal, Emery Andrews, H. S. Clark, A. J. Fryer, H. P. Cofer, and S. S. Anderson, for appellant.

James W. & Edward C. Craig, Henley & Henley, I. B. Craig, Bennett & Voigt, and Bryan Tiven, for appellees.

This is a bill filed by Margaret Barrett and 70 other persons, appellees herein, averring that they are residents of Coles county, and taxpayers thereof; that the personal property owned by each of them was assessed by the town assessor in the town of Mattoon in said county in the years 1894, 1895, 1896, 1897, and 1898, and taxes were extended against each of them upon the property so assessed against them; that each of them paid the taxes for each of said years so assessed and extended against them; that the appellant and two others, constituting the board of review, at the meeting of the board for the year 1899 claimed to have discovered credits, other than of bank, banker, broker, or stockjobber, omitted by each of the complainants for the years 1894, 1895, 1896, 1897, and 1898, and that they, as said board of review, are empowered by the statute to assess each and all the complainants or appellees upon credits, other than of bank, banker, broker, or stockjobber, so claimed by them to have been omitted for the years aforesaid, and have listed and assessed appellees upon credits, other than of bank, banker, broker, or stockjobber, for said years, and for the amounts specified in the bill; that the appellees, each in person or by attorney, appeared before said board of review at its meeting in August, 1899, and objected to the listing and assessment of such credits by said board upon the ground that such assessment was illegal, and that said board had not power or authority of law to assess such omitted credits for the years aforesaid, and that their acts in assessing were illegal and without authority of law, etc.; that the board has returned the assessment books to the appellant, Ambrose C. Sellars, county clerk of said county, that he may extend the taxes upon the assessments so made upon such credits claimed by the board of review to have been omitted by appellees for the said years, and assessed by said board, and the said Sellars, county clerk of said county, will extend the taxes upon said credits as listed and assessed by the said board for each of said years, and against each of appellees, and add the same to the current taxes of each of appellees for the year 1899, together with a penalty of 10 per cent. interest upon said credits claimed to have been omitted unless he is restrained by injunction; that the listing of such credits by said board is without authority of law, and that said county clerk has no legal right to extend said taxes against appellees. The bill prays for an injunction against the county clerk from extending the taxes against such return and assessments. A demurrer was filed to the bill by the appellant, and hearing was had upon the demurrer. The court overruled the demurrer, and sustained the bill as to appellant, Sellars, but sustained the demurrer as to the two other members of the board of review, who were made defendants below, and dismissed the bill as to them. The present appellant elected to stand by his demurrer. The court therefore decreed that the bill be taken as confessed against appellant, and that he be enjoined from extending said assessment against the appellees, etc. The present appeal is prosecuted from the decree of the court so enjoining the tax upon said assessments.

MAGRUDER, J. (after stating the facts).

It is admitted by counsel for both sides that the demurrer to the bill, which was overruled, raises two questions: First. Had the board of review any authority to assess any property omitted by the assessors prior to 1899? Second. If it had such authority in any case, had it any authority to assess credits for any year or years prior to 1899?

1. It must be held, in view of the language of the statutes, and of a recent decision of this court interpreting those statutes, that the board of review had authority to assess property omitted by the assessors prior to 1899. Section 276 of the revenue act provides as follows: ‘If any real or personal property shall be omitted in the assessment of any year or number of years, or the tax thereon, for which such property was liable, from any cause has not been paid, * * * the same, when discovered,shall be listed and assessed by the assessor and placed on the assessment and tax books. The arrearages of tax which might have been assessed, with ten per cent. interest thereon, from the time the same ought to have been paid, shall be charged against such property by the county clerk.’ 3 Starr & C. Ann. St. p. 3516. Section 35 of the revenue act passed by the legislature at the extra session of 1898, entitled ‘An act for the assessment of property and providing means therefor and to repeal a certain act therein named,’ provides as follows: ‘The board of review shall: ‘First, assess all property subject to assessment which shall not have been assessed by the assessors. The board of review may make such alterations in the description of real or personal property as it shall deem necessary,’ etc. In People v. Sellars, 179 Ill. 170, 53 N. E. 545, sections 276 and 35, above quoted, came under the consideration of this court in connection with the first question raised by the demurrer here. In that case, which was a petition for mandamus, the petitioner, a citizen and taxpayer of Coles county, alleged that the assessor for the town of Mattoon had discovered personal property in his township omitted in the assessments for the years 1894, 1895, 1896, 1897, and 1898, upon which the taxes were not paid during said years, and that the town assessor had listed and assessed, and placed on the assessment and tax books, such property so omitted, and filed the same in the office of the county clerk, and had made demand upon the county clerk to extend such taxes. A demurrer was filed to the petition for mandamus, and the trial court sustained the demurrer and entered judgment against the petitioner, which judgment was affirmed by this court. It was there held that the town assessor for the year 1898 had no authority under the foregoing statutes to make an additional assessment against the omitted property, upon the ground that the power to assess such omitted property had been conferred by the act of 1898 upon the board of review. In that case we said (page 175, 179 Ill., and page 547, 53 N. E.): ‘Under section 276 of the old revenue law, where property has been omitted in an assessment of any year or years, when the omission has been discovered, the assessor was authorized to assess such omitted property, and make return to the county clerk. But, under section 35 of the new law, section 276 of the old law is changed and modified so that the power to assess omitted property is taken from the assessor, and conferred upon the board of review. The language, ‘First, assess all property subject to assessment which shall not have been assessed by the assessors,’ is plain, and was doubtless intended to cover all cases where property liable to be assessed had for any cause been omitted from the assessment by the local assessor. Section 276 of the revenue law was not repealed, but it was changed and modified so that the power of assessing omitted property was taken from the local assessor and conferred upon the board of review.' The assessment in the case at bar was made by the board of review. When the power of assessing omitted property was taken from the local assessor and conferred upon the board of review, the power of the board was not confined to the assessment of the current year, but extended to property omitted from the assessment of prior years. The precise question in People v. Sellars, supra, related to the power of the assessor of Mattoon township for the year 1898 to assess omitted property for the years from 1894 to 1898, inclusive; and it was there said, in answer to the contention that the board of review created by the act of 1898 was only intended to review such assessments as might be made under that act, that the language of section 35 of the act as above quoted was ‘general, and broad enough to cover cases that may have arisen as well before the act took effect as afterwards.’ It follows that the first question propounded as above must be answered in the affirmative.

[185 Ill. 471]2. Counsel for appellees, however, insist that, even if the board of review has power to assess all other kinds of...