Village of Morgan Park v. Knopf

• Decision Date: 23 June 1904
• Citation: 71 N.E. 340,210 Ill. 453
• Parties: VILLAGE OF MORGAN PARK v. KNOPF, County Clerk.
• Court: Illinois Supreme Court

210 Ill. 453

71 N.E. 340

VILLAGE OF MORGAN PARK

v.KNOPF, County Clerk.

Supreme Court of Illinois.

June 23, 1904.

Appeal from Appellate Court, First District.

Action by the village of Morgan Park against Philip Knopf, county clerk. From a judgment in favor of defendant, affirmed by the Appellate Court, plaintiff appeals. Affirmed.

See 65 N. E. 322.

Enoch J. Price, for appellant.

James H. Wilkerson, Co. Atty., and William F. Struckmann, Asst. Co. Atty., for appellee.

This is an action in assumpsit, brought by the plaintiff, the village of Morgan Park, to recover alleged overcharges for official fees made by Philip Knopf, county clerk of Cook county, for services rendered in the issuance of tax deeds. The facts upon which the plaintiff's claim is based are substantially as follows: There being no other bidders, the village of Morgan Park, at the tax sales of 1896 and 1897 for delinquent special assessments, became the purchaser of 1,495 tax-sale certificates, which were not subsequently redeemed, and upon which the plaintiff in due time applied to the defendant for deeds. The notices and affidavits required by the statute were prepared by the village attorney, as agent for the village. For convenience, a separate affidavit was made as to the sale of each separate special assessment, and when the affidavits were presented to the county clerk for tax deeds on the sales of 1896 he insisted that he was entitled to charge the same fee of 10 cents per 100 words for recording the tax-sale certificates as for recording the affidavits. The deeds were issued and delivered to the village, and the defendant rendered his bill for fees claimed to be due him therefor which included not only a recording fee of 80 cents for each certificate of sale, but also a fee of 10 cents per certificate for noting on the collector's warrant these sales, charged, as claimed, under authority of the last paragraph of section 56 of chapter 53 of Hurd's Rev. St. 1901. The total bill under the sale of 1896 was $711.60 for recording the tax-sale certificates, $15 for issuing deeds, $74.70 for noting tax sales on warrants, and $1.25 for acknowledging deed. On September 22, 1900, the plaintiff also presented to the defendant county clerk applications for tax deeds on the sales made to the village in the year 1897. There were eight affidavits, covering the same number of special assessments, and 748 tax-sale certificates covered by the affidavits which were returned with them. For issuing the deeds under the sale of 1897 the defendant charged the sum of $716, as follows: For recording affidavits, $20.60; for recording sale certificates, $598.40; issuing deeds, $21; noting sales on warrants, $74.80; acknowledging deeds, $2. Subsequent to receiving these payments, the county clerk consented to accept payment under a stipulation that it should not be deemed voluntary, but that the village should have the same right to recover illegal charges as if they had been paid before the deeds were delivered. This stipulation was made on December 17, 1900, and on the following day the present action was begun to recover the alleged illegal fees contained in the two charges mentioned.

WILKIN, J. (after stating the facts.)

Upon a trial before the court without a jury, three propositions of law were submitted to the trial judge, as follows:

‘(1) The court finds and holds as matter of law in this case that it is not the duty of the county clerk to copy upon the records of his office certificates of tax sales upon which he issues tax deeds, when the same are not referred to as exhibits, or in any way made a part of the affidavit filed for the purpose of securing such deeds, and that he was not entitled to receive any fees for recording the tax certificates offered in evidence in this case.

‘(2) The court finds and holds as a matter of law in this case that it is not the duty of the county clerk, in issuing tax deeds, to acknowledge the same, and that he has no right, under the statute, to charge or receive of the applicants for a tax deed any fee for acknowledging such deed, or any fee paid by him to a notary public or other officer for taking his acknowledgment to such deed.

‘(3) The court finds and holds as a matter of law that the act approved June 3, 1897 [Laws 1897, p. 220] and in force July 1, 1897, entitled ‘An act to amend section 4 of an act to provide for fees of certain officers therein named in counties of the third class,’ approved March 2, 1874, in force March 2, 1874, is invalid and void, because it purports to be an amendment of said original section, when, as a matter of fact, said section 4 had been repealed, except as re-enacted in an act approved June 18, 1883 [Laws 1883, p. 96], and in force July 1, 1883; and on account of the invalidity of said act of 1897 the county clerk of Cook county is not entitled to charge or receive any fee for noting upon the collector's warrants tax sales subject to redemption.'

These propositions were each marked ‘Refused,’ the court adding in the case of the two latter: ‘Expressing no opinion as to the law announced in this instruction, but because this charge was paid voluntarily.’

Upon an appeal to the Appellate Court for the First District the judgment of the circuit court was affirmed, except as to the charge mentioned in proposition 2, to which the court applied the rule of de minimis, and gave appellant no benefit of the error except a reduction of $3.25 in the costs taxed against the village.

The errors assigned all depend upon the ruling of the trial court upon the propositions of law submitted to it. Considering them in their inverse order, the third has been disposed of by our former decision in the case when it was here before, reported in 199 Ill. 444, 65 N. E. 322. A writ of error issued by the plaintiff below was then dismissed for want of jurisdiction in this court, and subsequently taken to the Appellate Court, from whith this appeal is prosecuted. Upon the former consideration of the case we held that the question as to the validity of the statute mentioned in the third proposition was not properly before us, for the reason that there had been no ruling of the circuit court upon it which could be reviewed here, the trial court having refused the same; but expressly stated that no opinion was rendered as to the law therein announced because the charge therein specified was paid voluntarily, and the plaintiff had failed to insist upon a ruling on the proposition as one of law, nor had it preserved an exception to the refusal of the court to do so; also for the reason that no protest was...