Imágenes de páginas

which we know of, and the judgment as were originally defective in omitting to state rendered will have to be reversed and the the particular purposes for which the tax was cause remanded for a new trial.

levied, does not interfere with the vested rights

of taxpayers, but is valid exercise of legisAs the case will have to be tried again

lative power, and renders the tax levies subject and the same question arise for determi thereto legal and valid. nation, we will pass upon the proper compen

[Ed. Note.-For cases in point, see vol. 10, sation of the appellee, so there may be no

Cent. Dig. Constitutional Law, 88' 192, 213.) further controversy over the matter. The Appeal from Lake County Court; D. L. statute makes provision for the appointment Jones, Judge. of a special bailiff, but in no place defines Application by the people, on the relation what his compensation shall be. The court of Lewis C. Price, county treasurer, for å undoubtedly cannot be so obstructed by this judgment and order of sale against the propomission as to delay its business or clog its erty of the Wisconsin Central Railroad Comwheels. It has summary powers to do those pany for a county tax levied on such proper. things which are necessary to properly ad- ty. From a judgment refusing the applicaminister justice. One of these summary pow. | tion, relator appeals. Reversed. ers is to supply any slight defect or omission

Leslie P. Hanna, State's Atty. (Benjamin which may be necessary. At the same time

H. Miller, of counsel), for appellant. Charles the people of the county are interested to

Whitney, for appellee. the extent at least that an exorbitant or unjust claim shall not be allowed. The court CARTWRIGHT, C. J. At the June term, had authority to appoint appellee. It also

1905, the county court of Lake county rehad power to fix his compensation at such a fused the application of the county collector just and reasonable amount as would indem of said county for a judgment against the nify him for his time actually employed and

property of appellee for a county tax levied his necessary expenses in traveling over the

on said property, and from that judgment county to perform his duties. This allowance this appeal was prosecuted. At the Septemshould be made upon a showing of the char

ber session, 1904, the county board attempted acter of the work done and the reasonable

to levy a county tax of 75 cents on each compensation therefor.

$100 of taxable property according to its The judgments of the circuit court and of

assessed valuation, and did not specify the the Appellate Court will be reversed, and the

particular purposes for which the tax was cause remanded for further proceedings in

levied. Such a levy was not authorized by accordance with the views above expressed.

the statute, and the tax was vitiated by the Reversed and remanded.

failure to comply with the law. Cincinnati, I. & W. Ry. Co. v. People, 213 Ill. 197, 72

N. E. 774; Chicago, B. & Q. R. Co. v. People, (219 III. 94)

213 Ill. 458, 72 N. E. 1105. On February 28, PEOPLE ex rel. PRICE v. WISCONSIN

1905, the Legislature passed an act for the CENT. R. CO.

purpose of curing the defect in levies which (Supreme Court of Illinois. Dec. 20, 1905.) existed in this and other like cases. Laws 1. COUNTIES - TAXATION - LEVY OF TAXES

1905, p. 359. That act was in force from DESIGNATION OF PURPOSES.

and after its passage, and the only question A county tax levy of 75 cents on each $100 in this case is whether it cured the defect. of taxable property, according to assessed valu. ation, without specifying the particular pur

If it was within the power of the Legislature poses for which the tax is levied, is invalid.

to pass the act, the defect was thereby cured, 2. CONSTITUTIONAL LAW-STATUTES - CURA and the tax validated. TIVE ACTS-POWER TO Pass.

There is no prohibition in our Constitution Where there is no constitutional provision

against the passage of retroactive statutes, to the contrary, the Legislature may validate by a curative act any proceeding which it might

and they are not invalid if they do not im. have authorized in advance, such as cases in pair vested rights, or come in conflict with which the power to levy taxes has failed of

some provision of the Constitution. The proper execution through the carelessness of officers or other cause; but the Legislature can

general rule is that, where there is no connot by retrospective legislation confirm what stitutional prohibition, the Legislature may it could not originally have authorized, or cure validate, by a curative act, any proceedings an original want of authority to act.

which they might have authorized in ad. [Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, 88 526, 536

vance. 8 Cyc. 1083; 26 Am. & Eng. Ency. 540.]

of Law (2d Ed.) 609. Cases where the power 3. COUNTIES – TAXATION - LEVY-SPECIFICA

to levy taxes has failed of proper execution TION OF OBJECTS - CONSTITUTIONAL PRO through the carelessness of officers or other VISIONS.

cause come within that rule. Cooley, Const, Const. art. 9, § 8, prohibiting county au

Lim. (4th Ed.) 462; Cooley on Taxation, thorities to assess taxes, the "aggregate" of which exceeds 75 cents per $100 valuation, does

229. But while curative acts may heal irpot require the county board in levying a tax regularities, they cannot cure the want of to specify the particular purpose for which it is

authority to act at all, and the Legislature levied. 4. CONSTITUTIONAL LAW - STATUTES CURA

cannot, by retrospective legislation, confirm TIVE ACTS-VALIDITY.

what it could not originally have authorized, Laws 1905, p. 359, curiog tax levies wbich1 On that ground, it is contended by appellee that the curative act of 1905 is invalid. It | effectual in the law. No vested right was is urged that the Legislature could not have interfered with, and it was considered that authorized such a levy as was made, because the Legislature had the right to remedy the it would be in conflict with section 8, art. | defect while the tax remained uncollected. 9, of the Constitution, which provides: In the case of McVeagh v. City of Chicago, "County authorities shall never assess taxes, 49 Ill. 318, where a tax on bank shares was the aggregate of which shall exceed seventy- | not properly assessed by reason of a defecfive cents per $100 valuation, except for the tive law under which it was attempted, the payment of indebtedness existing at the court decided that the Legislature bad power adoption of this Constitution, unless authori. to pass a special law to cure the omission. zed by a vote of the people of the county."

It is within the power of the Legislature to The argument is based on the use of the change the mode for the collection of taxes word "aggregate,” as showing an intent that at any time before they are paid, discharged, the county authorities shall specify the par or otherwise released. Hosmer v. People, ticular purposes to which the money, when 96 Ill. 58. If the Legislature could have collected, shall be appropriated, and that the provided for the levy of county taxes in the aggregate shall not exceed the rate specified. manner in which this tax was levied, and no We are not prepared to say that the con. constitutional right of the taxpayer was instruction contended for should be given to vaded, the curative act would be effective the Constitution, but are of the opinion that to remedy the defect. The Legislature did the provision was intended merely as a limi not choose to change the plan for levying tation upon the power of county authorities

county taxes, which has been regarded as a to levy taxes.

wise one for the protection of taxpayers. The next question is whether the curative

No change was made in the method of levy. act interferes with or destroys any constitu ing taxes for any subsequent year, and the tional right of the taxpayer. It is the right

rule for the future remains precisely the of the taxpayer to have an opportunity to

same as before the passage of the act of 1905. be heard before a tax shall be finally adjudg County boards were not invested with power ed against him, and no tax can be valid with to levy county taxes without determining the out an opportunity for such a hearing.

| amount needed for each purpose included in Therefore, it was decided in Marsh v. Ches

the levy, and the act was only intended to nut, 14 III, 223, that the Legislature could

validate taxes previously levied, where counnot cure by subsequent legislation the fail ty officials had failed, through ignorance, to ure of an assessor to complete the assess specify the purposes of the tax. As we think ment, and return it to a particular place on

that the Legislature might have authorized a or before a certain day. The provision for

levy in this manner, and no vested right of such a return was to enable the taxpayer to

the taxpayer was interfered with, the curainspect the assessment, and to give him time

tive act had the effect to render the tax legal and opportunity to make application to the and valid. county commissioners' court for correction.

It was said in Chicago, B. & Q. R. Co. v. of the assessment. The curative act depriv

People, supra, that the failure to comply with ed him of an opportunity to appeal and a the statutory requirement was not a were hearing, and was void for that reason. The

irregularity, but a fatal omission, which same rule was applied on the same ground vitiated the tax, and it is argued that the in Billings v. Detten, 15 Ill. 218; and in

tax was therefore void, and could not be Conway v. Cable, 37 Ill. 82, 87 Am. Dec. 240,

given vitality by a subsequent act. Section it was held that the Legislature could not, 191 of the revenue act (Hurd's Rev. St. 1903, by retrospective enactment, make an invalid c. 120) is curative and prospective, and protax proceeding valid, and thereby divest an

vides that in tax proceedings no tax shall individual of his vested rights. It was there be considered illegal on account of errors held that a citizen might allow his real es or informalities in the proceedings not aftate to pass to a sale, relying upon the want fecting the substantial justice of the tax. of compliance with the law authorizing the What was said with reference to the tax in sale, and that his rights thereby acquired the case referred to related to the question could not be affected by subsequent legis- whether it was within the prospective curalation. On the other hand, in Cowgill V. tive provisions of that section. The defect Long, 15 Ill. 202, the court held that, al in that case and in this one did not come though it was essential to the validity of a within the curative provisions of that secschool tax that it should be certified to the tion, but it does not follow that the decounty clerk before the 1st of July, the Leg. fect was not cured by the retrospective act islature had power to pass a special act, I of 1905. declaring that a tax voted on the 20th of The judgment of the county court is reJuly and the act of certifying the tax to the versed, and the cause remanded. county clerk should be legal and valid and Reversed and remanded.

76 N.E.-6

(219 III. 76)

order of sale against said lands and lots for SMYTHE et al. V. PEOPLE ex rel. HAN said taxes and special assessments, with 11BERG, County Treasurer.

terest and costs. This section of the statute (Supreme Court of Illinois. Dec. 20, 1905.) is mandatory, and must be complied with 1. MUNICIPAL CORPORATIONS - SPECIAL AS strictly, otherwise the county court does not SESSMENTS-JUDGMENT OF SALE.

obtain jurisdiction to proceed. Cooley, in his The delinquent list on an application for

work on Taxation (1st Ed.) on page 335, says, judgment of sale for special assessment stands as a declaration, and the notice of process

that whether the notice required is to be must conform thereto.

made by publication or by posting, “it must 2. SAME-DESCRIPTION OF PROPERTY.

be complied with strictly. This is one of the The description of property in a delinquent

most important of all the safeguards which list as located in “Sherman & Krutz's Roseland

has been deemed necessary to protect the Park Addition to Pullman,” and in the notice as being in “Herman & Krutz's Roseland Park Ad interests of the parties taxed, and nothing dition to Pullman," constituted a fatal variance, can be a substitute for it, or excuse the failthough there is only one addition in Pullman of

ure to give it." Blackwell, in his work on the name in the delinquent list, and no addition of the name appearing in the notice.

Tax Titles (4th Ed.) on page 249, says, that

where "the statute declares what the conAppeal from Cook County Court; Orrin N.

tents of the advertisement shall be, each fact Carter, Judge.

required by the statute must appear in the Action by the people, on relation of John J.

advertisement or it will be void; thus, the Hanberg, county treasurer, against Charles

time and place of sale, a description of the H. Smythe and others. Judgment for plain.

lands to be sold, the amount of tax due, the tiff, and defendants appeal. Reversed.

name of the owner, * * * the year for Taylor & Martin, for appellants. Robert which the tax was due, a recital of the purRedfield and Frank Johnston, Jr. (James pose for which the tax was levied, and such Hamilton Lewis, Corp. Counsel, of counsel), other facts as the particular statute under for appellee.

which the notice is given may have rendered

essential. Any omission in these respects, or HAND, J. This was an application for variance between the contents of the notice judgment and order of sale against the lands and the facts of the case, will invalidate the of appellants in the county court of Cook proceedings.” This court (McChesney V. county to satisfy the first installment of a People, 178 Ill. 542, 53 N. E. 356, and Gage v. special assessment levied for the construc People, 188 Ill. 92, 58 N. E. 947) has held that tion of a system of sewers in the city of Chi a material variance between the notice and cago, known as the “West One Hundred and the delinquent list is fatal to a valid judg. Thirteenth Street System.” The appellants ment and order of sale. The variance beappeared specially, and filed objections on tween the notice and delinquent list in the the ground that there was a fatal variance McChesney Case was that the name of the between the notice for judgment and order owner appeared in the notice as "Chesney" of sale and the delinquent list, and pointed and in the delinquent list as "A. B. McChesout in their objections that the property was ney," and the variance in the Gage Case was described in the notice as being located in that the notice and delinquent list described "Herman & Krutz's Roseland Park Addition differently the special assessment warrants, to Pullman,” whereas it was described in the both as to date and the improvement for delinquent list as being located in “Sherman which the special assessment was to be levied. & Krutz's Roseland Park Addition to Pull The delinquent list stands as a declaration man." Appellee introduced evidence showing and the notice as process, and they must that there was only one "Sherman & Krutz's | agree. Hann v. People, 102 Ill. 346. The Roseland Park Addition to Pullman" and no appellee sought to correct the defect by show"Herman & Krutz's Roseland Park Addition ing that there was no "Herman & Krutz's to Pullman," whereupon the court overruled Roseland Park Addition to Pullman," but the objections, and rendered judgment, and that there was a “Sherman & Krutz's entered an order of sale against the lands Roseland Park Addition to Pullman," and of appellants, to reverse which judgment and reliance is placed upon a line of cases which order of sale the appellants have prosecuted hold that, if a description is of such a charathis appeal.

acter that a competent surveyor with reasonThe statute (3 Starr & C. Am. St. 1896 (2d able certainty, either with or without exEd.] c. 120, par. 184, p. 3464) provides that trinsic evidence, can identify the property, the county collector shall give notice for judg the tax levy will be sustained. Law v. People, ment and sale for delinquent taxes and special SO Ill. 268; Otis V. People, 196 III. 542, 63 assessments by publication, which publica N. E. 1053. Those cases are not in point. tion notice shall contain a list of the delin There the sole question raised was whether quent lands and lots upon which the taxes or the property had been sufficiently described special assessments remain due and unpaid, in a delinquent list or in a tax deed, while the names of the owners, if known, the total here the question is, did the court have jurisamount due thereon, and the year or years | diction to render judgment against appellants' for which the same are due, and that he will property, and to order it sold to satisfy a apply to the county court for a judgment and delinquent special assessment? We think it clear, under the authority of the McChesney | cent to the strip taken. Judgment was renand Gage Cases, there was a material vari- | dered in accordance with the verdict, and this ance between the notice and the delinquent appeal is prosecuted to reverse that judgment. list, and that the county court erred in not

Eddy, Haley & Wetten and J. L. O'Donnell sustaining the objections of appellants to the

(Charles H. Pegler, of counsel), for appellant. application for judgment and order of sale.

C. W. Brown, Coll McNaughton, and P. The judgment of the county court will be reversed, and the cause remanded to that

Shutts, for appellee. court for further proceedings not inconsistent with this opinion.

RICKS, J. (after stating the facts). The Reversed and remanded.

principal contention of appellant is that the damages are excessive. It will be seen from

the statement of the case that the amount of (219 Ill. 91)

damages allowed for the land taken amounted ILLINOIS, I. & M. RY. CO. v. RING.

to $183 per acre for the 642 acres. The evi(Supreme Court of Illinois. Dec. 20, 1903.)

dence discloses that the land was worth from 1. APPEAL - REVIEW – CONFLICTING EVI.

$120 to $200 per acre, some of the witnesses DENCE.

testifying that the land was worth from $200 A verdict in condemnation proceedings will to $300 per acre. The amount of the damages not be disturbed on appeal, where the evidence was within the range of the evidence, which is conflicting, and the jury viewed the premises, and there is no showing of prejudice or that the

was all that was necessary; and as to the amount is grossly excessive.

damages to the land not taken, the jury fixed (Ed. Note. For cases in point, see vol. 3, the price at $43.50 per acre. Eleven witCent. Dig. Appeal and Error, 88 3935–3937; nesses testified for appellee as to the damages vol. 18, Cent. Dig. Eminent Domain, 8 685.)

to the remainder of the land; the lowest be2. EMINENT DOMAIN-OPINION EVIDENCE.

ing $55 and the highest $80 per acre, the In condemnation proceedings, a witness may base his opinion as to the damage to land

balance of the witnesses ranging in amounts on the possibility of danger of fire from sparks

between the two. The amount found by the from locomotives.

jury to be the actual damages was less than (Ed. Note.-For cases in point, see vol. 18, the lowest estimate placed upon the land by Cent. Dig. Eminent Domain, 88 294, 298.]

any witness for appellee. We have repeated3. APPEAL-REVIEW-ASSIGNMENT OF ERRORS.

ly held that allowances for damages by a jury Where the action of the court in overruling a demurrer is not assigned as error, it cannot be

in a condemnation proceeding, if within the reviewed.

range of the evidence, will not be disturbed on (Ed. Note.—For cases in point, see vol. 3, appeal, where the evidence is conflicting and Cent. Dig. Appeal and Error, $ 2973.]

the jury viewed the premises. Illinois, Iowa

& Minnesota Railway Co. v. Humiston, 208 Appeal from Will County Court; Arthur

Ill. 100, 69 N. E. 880, and cases cited. This W. Deselm, Judge.

court will not disturb the finding of the jury Condemnation proceedings by the Illinois,

under such circumstances, unless we can say Iowa & Minnesota Railway Company against

from the record that the jury were prejudiced Martin Ring. From a judgment, the railroad

and unfair in reaching their conclusion, or company appeals. Affirmed.

that the amount found is grossly excessive for This was a condemnation proceeding begun the land taken and damaged. No such conin the county court of Will county by the dition exists in this record. The verdict of filing of a petition by the appellant company the jury is in accord with the evidence in against the appellee to condemn under the every respect, and it would be unwise for this statute a strip of land 100 feet in width court to undertake, as an abstract proposition across the 80-acre farm owned by appellee. of law, to determine what the amount of The strip of land as located by appellant damages would be upon a condemnation proruns lengthwise and diagonally across the 80 ceeding, without having an opportunity to see acres of land, by beginning on the north line and inspect the premises. All we have to of the tract, where the west line of the said go by is the evidence as it appears in the right of way is 196 feet from the northwest record, and if we find that the judgment is corner of the said tract, then running partly reasonable and sustained by the evidence it is on a curve to the southeast corner of the our duty to sustain the verdict of the jury. tract, so that the east line of the right of way It is next insisted that it was error in peris 3912 feet from the said southeast corner, mitting the witness Baker to testify as to the dividing the 80 acres, lengthwise, into two element of damages that might arise from irregular, triangular shaped pieces of land, fire that might be emitted from the engines in one of which contains about 4542 acres and use on said road. Other witnesses testified to the other 28 acres. The cause was tried be substantially the same as did the witness fore the court and a jury. The jury made a Baker, but no objection was made or exceppersonal inspection of the premises, and re tion taken to their testimony. The witness turned a verdict finding the sum of $1,189.50 testified that one of the things he took into as just compensation for the 642 acres of land consideration as to the determination of the taken, and finding the sura of $3,197.25 as market value of the land was the danger from damages to the remainder of the land adja- fire. We think that the evidence was proper,

as it is competent for witnesses to give their firmed. The petition was answered by Wil. opinion as to the state of facts upon which liam Fenimore Cooper, master in chancery, they base their opinion, and we see no good and by complainant. An order was entered reason why the probabilities of fire from pass- | dismissing the petition for want of equity, ing trains should not be shown by the evi- | which order was affirmed by the Appellate dence to be an element of damages that may Court, and intervener appeals. Affirmed. be taken into consideration. Chicago, Padu

This is an appeal from a judgment of the cah & Memphis Railroad Co. v. Atterbury,

Appellate Court affirming a decretal order 156 Ill. 281, 40 N. E. 826.

of the circuit court of Cook county entered It is next urged that counsel for appellee,

in said cause on the 13th day of April, 1904, in addressing the jury, made improper re

setting aside a sale of the premises involved marks; but upon objection by counsel for ap.

in this cause to the German Old People's pellant the remarks objected to were either at

Home, one of the appellees, and refusing to once withdrawn or modified, and we are un

confirm an alleged sale thereof to the appelable to see how the jury could have been

lant, and the order of a resale of said premprejudiced by the remarks.

ises. The facts of the case disclose that on It is next urged that a demurrer which was

June 5, 1902, the German Old People's Home, filed to the appellee's cross-petition should

a corporation organized under the laws of the have been sustained. The demurrer was over

state of Illinois for charitable purposes, and ruled, but the ruling of the court is not as

John W. Buehler, as trustee, filed their bill signed as error, and appellant abode the rul

of complaint in the circuit court of Cook ing of the court on the demurrer. Under this

county against August Warnhoff and others condition of the record we are not at liberty to foreclose a trust deed in the nature of a to decide this question, as only errors that

mortgage upon certain property in Cook counare assigned can be reviewed by this court.

ty. The German Old People's Home was the After a careful examination of the record

owner of the indebtedness secured by said we find no error which would justify us

trust deed. John C. Wilson was one of the in reversing the judgment. The judgment of parties defendant to the bill, being the own. the county court of Will county is accordingly er of the equity of redemption, and was repaffirmed.

resented in the foreclosure proceedings by Judgment affirmed.

William Slack, appellant, filed an answer on behalf of said Wilson; the other defend

ants being defaulted. A reference was had 219 III. 138)

on the bill and answer and replication to SLACK V. COOPER et al.

William Fenimore Cooper, one of the mas(Supreme Court of Illinois. Dec. 20, 1905.)

ters in chancery of said circuit court, and 1. APPEAL-REVIEW-DISCRETION OF LOWER

on March 10, 1904, a decree of foreclosure COURT-JUDICIAL SALES-CONFIRMATION.

and sale was entered in said cause, finding A broad discretion is vested with the due the German Old People's Home from the chancellor in the matter of approving or dis defendant the sum of $8,197.11, together with approving the acts of a master in chancery with reference to judicial sales, and such dis

all costs incurred in the suit, and $409.85 cretion will not, unless abused, be interfered

attorney's fees, and decreeing that the premwith on appeal.

ises be sold at public auction for cash to (Ed. Note. For cases in 'point, see vol. 3, satisfy the same, provided the defendants did Cent. Dig. Appeal and Error, $ 3850.)

not pay the sum found due in three days 2. MORTGAGES-FORECLOSURE-SALES-REFUS- from the date of the decree, and providing AL TO CONFIRM. A sale under foreclosure decree was made

for execution in case of a deficiency after by the master in chancery to the solicitor for

sale. The master duly advertised the said the owner of the equity under a misapprehension premises for sale according to law and the that he was acting for complainant. There was

terms of said decree. The time and place no one else present at the time of the sale, but a few moments afterwards complainant's solici

fixed for the same was 1 o'clock in the aftertor arrived and made an increased bid, which noon of April 5, 1904, at the judicial salesthe master, being apprised of the mistake under rooms of the Chicago Real Estate Board in which he had been laboring, accepted. Held,

Chicago. Between 1 o'clock sharp and 5 that it was a proper exercise of discretion for the chancellor to refuse to approve either sale minutes after 1, upon said day at said place, and to order a resale.

the master, acting under apparent misappre3. SAME.

hension that the owner of the decree was The master acted properly under the cir.

represented at said sale by appellant and cumstances in making the second offer of sale after learning his mistake.

that all persons interested were present, of

fered the premises for sale; the master, from Appeal from Appellate Court, First Dis- his statements, having been confused as to trict.

the attorneys that represented the parties Bill to foreclose a trust deed by the German interested. At the time said master offered Old People's Home and another against Au | the premises for sale there was no one presgust Warnhoff and others. A sale of the prem | ent at the salesroom except Wilson and his ises was bad, at which William Slack became solicitor, appellant. The master, immedi. a purchaser and filed an intervening petition, ately after 1 o'clock, offered said property praying that the sale to him should be con- | for sale and the appellant bid $3,000, and,

« AnteriorContinuar »