Wilson v. Weber

• Decision Date: 28 February 1878
• Citation: Wilson v. Weber, 3 Ill.App. 125, 3 Bradw. 125 (Ill. App. 1878)
• Parties: JAMES H. WILSON, Receiver,v.HERMAN G. WEBER.
• Court: Appellate Court of Illinois

3 Ill.App. 125

3 Bradw. 125

JAMES H. WILSON, Receiver,

v.HERMAN G. WEBER.

Appellate Court of Illinois, Fourth District.

February Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WM. H. SNYDER, Judge, presiding.

Mr. BLUFORD WILSON and Mr. J. M. HAMILL, for appellant; That the offer of complainant to prepare sufficient affidavit for continuance was within the requirements of the statute, and the court should have granted a continuance, cited Rev. Stat. 1874, Chap. 69, § 18; Shirwin v. The People, 69 Ill. 58; Cole v. Choteau et al. 18 Ill. 441; St. L. & S. E. R'y Co. v. Teters, 68 Ill. 146.

Illness of counsel is good cause for continuance: Jarvis v. Sherlock et al. 60 Ill. 379.

It is improper to allow evidence contradicting an affidavit for continuance: Supervisors Fulton County v. M. & W. R. R. Co. 21 Ill. 368; Wick v. Weber, 64 Ill. 168.

Where answer and replication have been filed and the cause is heard on the pleadings without proof, it is error to dismiss the bill: Cummins v. Cummins, 15 Ill. 34; Parkinson v. Truesdale, 3 Scam. 370; Davis v. McVickers, 11 Ill. 327; Hummert v. Schwab et al. 54 Ill. 147; Brockway v. Rowley et al. 66 Ill. 99.

It was error to dismiss the bill on motion to dissolve the injunction: Maher v. Bull, 39 Ill. 538; Parkinson v. Truesdale, 3 Scam. 370.

Under the prayer for general relief a court of chancery may decree that which is not specifically prayed for: Isaacs v. Steel, 3 Scam. 97.

The county clerk cannot add delinquent real estate tax to the tax on personal property: Rev. Stat. 1874, Chap. 120, §§ 129, 229, 172, 188, 182, 185, 190, 191, 194, 195, 197, 199, 203, 226.

An injunction will be granted to restrain the collection of a tax fraudulently levied: Viele v. Thompson, 77 Ill. 625; Town of Lebanon v. O. &. M. R'y Co. 77 Ill. 539; McConkey v. Smith, 73 Ill. 314; C. B. &. Q. R. R. Co. v. Cole, 75 Ill. 592.

Where it is impossible to distinguish the legal from the illegal tax, the whole should be enjoined until evidence can be taken upon that point: Taylor v. Thompson, 42 Ill. 17; Briscoe v. Allison, 43 Ill. 296.

As to the power of the collector to distrain for personal taxes: Rev. Stat. 1874, Chap. 120, § 137; Laws of 1873, 45, § 1.

There is no lien upon real property for the tax levied on personal property: Schaeffer v. The People, 60 Ill. 181; Parks v. Miller, 48 Ill. 364.

An answer in chancery should state facts and not conclusions of law: 2 Daniel's Ch. Pr. 814; Stone v. Moore, 26 Ill. 172; Craig v. The People, 47 Ill. 493.

The revenue law relating to assessment of capital stock is limited to companies created under the laws of this State: W. U. Tel. Co. v. Leib, 76 Ill. 172.

Consolidation of companies organized in different States does not constitute the same legal entity in both States: O. & M. R'y Co. v. Wheeler, 1 Black. 247; R. & M. R. R. Co. F. L. & Tr. Co. 49 Ill. 331; So. Car. R. R. Co. v. Charleston, 2 Otto, 667; Central R. R. Co. v. Georgia, 2 Otto, 665.

Laws imposing taxes are strictly construed in favor of the taxpayer: Dwarris on Statutes, 742; Cooley on Taxation, 202; United States v. Wigglesworth, 2 Story, 369; Chestnutwood v. Hood, 68 Ill. 132.

The capital stock tax is not a tax upon shares of stock, but upon the property of the corporation: State Tax on Railroad Cases, 2 Otto, 575; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292; C. B. & Q. R. R. Co. v. Cole, 76 Ill. 591.

The jurisdiction of the taxing power is limited to persons and property within the limits of the State: Cooley on Taxation, 15; State Tax on Foreign-held bonds, 15 Wall. 300.

A tax upon the property of a company by valuation cannot be sustained: Delaware Railroad Tax Case, 18 Wall. 207; Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561.

A tax assessed upon property exempt from taxation may be restrained by injunction: C. B. & Q. R. R. Co. v. Cole, 76 Ill. 591.

What property is subject to assessment is a matter of law, and the assessor has no discretion: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292.

The listing and valuation must be made in the manner and within the time required by law: Blackwell on Tax Titles, 106; Cooley on Taxation, 256; Town of Lebanon v. O. & M. R'y Co. 77 Ill. 541; Marsh v. Supervisors Clark County, Cent. Law Jour. Dec. 14, 1877, 509; Schuttler v. Fort Howard, 6 Cent. Law Jour. 68.

The court erred in assessing damages and awarding $800 attorneys' fees to the Attorney-General and State's attorneys: Constitution, Art. 5, § 23; Rev. Stat. 1874, Chap. 53, § 1.

Evidence as to assessment of damages on dissolution of the injunction must be preserved in the record: Hamilton v. Stewart, 59 Ill. 331; White v. Pearce, 47 Ill. 415.

The damages are grossly excessive: Terry v. Hamilton School, 72 Ill. 478; Jevne v. Osgood, 57 Ill. 346; Elder v. Sabin, 66 Ill. 128; Collins v. Sinclair, 51 Ill. 330.

Mr. JAMES K. EDSALL, Att'y-Gen., for appellee; that the motion for continuance was properly overruled, it being a matter resting in the discretion of the court, and there being no affidavit filed in support of it, cited Rev. Stat. 1874, 581, § 18; Vickers v. Hill, 1 Scam. 307; Mitchell v. Chicago, 40 Ill. 174; Woodruff v. Tyler, 5 Gilm. 458; Harmison v. Clark, 1 Scam. 131; Smith v. Powell, 50 Ill. 21.

After replication is filed the cause is deemed at issue and stands for hearing: Rev. Stat. 1874, 201, § 29; Gregg v. Brown, 67 Ill. 526.

When a cause is heard upon bill, answer and replication, only such portions of the bill as are admitted by the answer can be taken as true: Harris v. Reeve, 5 Gilm. 131; Selby v. Geines, 12 Ill. 69.

And where the answer denies the allegations of the bill, they must be supported by proof: DeWolf v. Long, 2 Gilm. 679; Trenchard v. Warner, 18 Ill. 142; 1 Barb. Ch. Pr. 141; Munson v. Miller, 66 Ill. 380; Thomas v. Adams, 59 Ill. 223.

The action of the State Board of Equalization in assessing the capital stock, property and franchises of appellant was valid: Porter v. R. R. I. & St. L. R. R. Co. 76 Ill. 561; Republic Life Ins. Co. v. Pollack, 75 Ill. 292; Ottawa Glass Co. v. McCaleb, 81 Ill. 556; State Railroad Tax Cases, 2 Otto, 575; Huck v. C. & A. R. R. Co. Sup. Ct. Ill. 1877; C. B. & Q. R. R. Co. v. Siders, Sup. Ct. Ill. 1877.

The Statute makes it the duty of the State Board to assess the rolling stock, track, etc., in the various counties along the line of the road, and the Board assumed to assess property within its jurisdiction. There was no such irregularity as would warrant the intervention of a court of equity: Rev. Stat. 865; Cook county v. C. B. & Q. R. R. Co. 35 Ill. 460; Jenks v. Board of Supervisors, etc. 65 Ill. 271.

Complainant should have shown what part of tax, if any, was legal, and tendered payment of the same: Merrill v. Humphrey, 34 Mich. 170; State Railroad Tax Cases, 2 Otto, 616.

The assessment of damages on dissolution of the injunction having been made after the bill was dismissed and appeal prayed, the appeal from the decree dismissing the bill does not bring up this subsequent order: McWilliams v. Morgan, 70 Ill. 551; Freeman v. Freeman, 66 Ill. 54.

TANNER, P. J.

This was a suit in equity, instituted in the Circuit Court of St. Clair county. A temporary injunction was granted, by which the collectors of revenue in the several counties named in the bill were restrained from distraining and selling the personal property belonging to the St. Louis and Southeastern Railway company (consolidated) for certain taxes assessed and levied against its real and personal property for the years 1873 and 1874. On the 24th day of October last an answer was filed to the bill and a motion was entered to dissolve the injunction. The motion was set down for hearing on the 31st day of the same month, by order of court. When the day arrived for hearing, and the motion was called up, the solicitor for the company moved to continue the motion to dissolve the injunction, and proposed to prepare and immediately present an affidavit showing that certain material parts of the defendant's answer were untrue, and also that he had testimony which would disprove all the material parts of the answer specified, which he could produce at the next term of the court, or at an earlier day; and that he had no opportunity to procure such testimony since the coming in of the answer. And further, that the senior counsel of the railway company, and who had drawn the bill for the injunction, was unable to be in court by reason of sickness in his family. On this statement the court refused to continue the motion to dissolve the injunction, but a hearing was then had on the motion, the injunction was dissolved, and the bill dismissed. A suggestion of damages was then filed, and the court, after hearing evidence touching the same, decreed that the defendant in the suit have and recover $800 for attorneys' fees.

The railway company brings the case to this court, and assigns the following errors: First, the court erred in overruling the motion for a continuance, and urges with much earnestness that in offering to present the affidavit in support of his motion for a continuance, the company brought itself within the provisions of section 18, chapter 69, R. S. 1874. This section provides: “If, after a motion is made to dissolve an injunction the complainant in the bill will satisfy the court by his own affidavit, or that of any disinterested person, that the answer or any material part thereof (to be specified in such affidavit) is untrue, and that he has testimony which will disprove the answer, or such material part thereof, which he can produce at the next term of the court, or at an earlier day, and that he has had no opportunity to procure such testimony since the coming in of the answer, the court may grant a continuance of such motion until the next term, or until such testimony can be produced.”

It is insisted on behalf of ...