Wright v. Wabash

• Decision Date: 12 May 1887
• Citation: 12 N.E. 240,120 Ill. 541
• Court: Illinois Supreme Court
• Parties: WRIGHT, Collector, etc., v. WABASH, ST. L. & P. RY. CO.

120 Ill. 541

12 N.E. 240

WRIGHT, Collector, etc.,

v.WABASH, ST. L. & P. RY. CO.

Supreme Court of Illinois.

May 12, 1887.

Error to circuit court, Morgan county.

Bill to restrain collection of tax.

Charles A. Barnes, State's Attorney, and W. P. Callon, for plaintiffs in error.

George B. Burnett (Geo. S. Grover, of counsel,) for defendant in error.

SHOPE, J.

The county of Morgan appears not to have adopted township organization. In 1882 a tax was levied on all the taxable property within the county, for county purposes, of 77 cents on each $100 valuation; and, in addition thereto, on all taxable property outside incorporated cities and villages, the county board assessed a road tax of 20 cents on each $100 valuation. This aggregate tax of 97 cents on each $100 valuation was extended against all taxable property outside incorporated cities and villages, including the property of the Wabash, St. Louis & Pacific Railway Company within Morgan county. On bill filed by the railway company, the circuit court enjoined the collection of all this tax in excess of 75 cents on each $100 valuation for county purposes; and, to reverse this decree, William C. Wright, county collector, and the county of Morgan sued out this writ of error.

It is not questioned but that the levy for county purposes, to the extent of 2 cents, the excess over 75 cents on each $100 valuation, was an illegal levy, and the decree to that extent correct; both parties conceding that section 8 of article 9 of the constitution prohibits county authorities from assessing a tax in excess of 75 cents per $100 valuation for county purposes. That section reads: ‘County authorities shall never assess taxes the aggregate of which shall exceed seventy-five cents per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of the county.’

The material question presented by this record is, does this constitutional provision prohibit county boards, in counties not under township organization, from assessing a road tax of 20 cents per $100 valuation, on all the taxable property within the county, and outside of incorporated cities and villages, in excess of a levy of 75 cents per $100 valuation, for ordinary county purposes, thus making an aggregate levy of 95 cents per $100 valuation? The circuit court held that the county board was prohibited from levying in excess of 75 cents per $100 valuation, and that the levy of 20 cents per $100 valuation for road purposes, in excess of the 75 cents per $100 valuation for county purposes, was without warrant of law, and so decreed. Unless, therefore, it shall be found that the circuit court erred in this respect, its decree must be affirmed.

The constitutional provision referred to was considered by this court in Wabash, St. L. & P. Ry. Co. v. McCleave, 108 Ill. 368, and it was held that, in counties under township organization, town taxes, levied for town purposes,are not county taxes, within the meaning of this section of the constitution. And in that case care was taken to show that the constitution itself (section 9, art. 9) in terms recognized the power of the legislature to authorize municipal corporations to assess and collect taxes for municipal purposes, and to further show that organized townships, under the township organization law, were municipal corporations. It was also shown in that case by whom, as a matter of law, township taxes were to be levied, and, although the board of supervisors assumed to order the levy, it was held that this action neither added to nor detracted from the levy,-the levy being made by the township authorities by filing their certificate of the amount required with the county clerk, on the authority of which he extends the same upon the tax books.

Counsel for plaintiffs in error direct our attention to that part of the McCleave Case where this language is used: ‘Section 8 of that article is only a limitation on the legislative power to authorize the levy of county taxes, and we have seen the taxes complained of are in no sense county taxes. As well claim the state taxes are for county purposes. The one is no more dissimilar to a county tax than the other. When collected, they are paid to town officers, and expended for town purposes.’ And then asks: ‘Is the constitution to be construed differently for counties under township organization and those not? Is it the law that townships can levy road taxes in the townships without violating section 8 of article 9 of the constitution, and that counties not under township organization cannot levy road taxes in the road-districts of the county, to be used only in the district where collected, without doing so?’ And adds:...