DAVID HOOVER

v.

THE PEOPLE ex rel. W. E. Peabody.

Opinion filed December 22, 1897-Rehearing denied February 15, 1898.

1. SPECIAL TAXATION-judgments for special taxes are in rem, and several against each tract. Judgments for special taxes are in rem, and can lawfully operate only against the particular tract or lot of land against which the taxes were assessed.

2. SAME appearing and defending application for sale does not subject owner to personal judgment. A lot owner, by appearing and defending an application for judgment of sale for delinquent special taxes, does not subject himself to a judgment in personam, nor to a judgment which charges upon one of his lots or parts of lots the tax assessed against another lot or tract.

3. SAME-judgment ordering sale of lots for total taxes assessed against all is unauthorized. A judgment of sale for delinquent special taxes which imposes upon each of two separate properties taxes assessed and levied upon the other, and which orders that each or both be sold for the total amount assessed, is unauthorized, and cannot be sustained on appeal.

4. SAME-part of section 3 of Sidewalk act of 1875 is unconstitutional. The provisions of section 3 of the Sidewalk act of 1875 (Laws of 1875, p. 63,) are unconstitutional in so far as they purport to create a personal liability against the owner of a lot against which special taxes are assessed to pay for the construction of a sidewalk.

5. SAME—when report of unpaid sidewalk tax is insufficient. The report by a city clerk to the county treasurer of unpaid special sidewalk tax, which is so insufficient in description of the property, and in other respects, as not to be equivalent to the report required by section 4 of the Sidewalk act, (Laws of 1875, p. 64,) and to show that the legal requirements relating to the return had been complied with and that the tax was due and unpaid, does not make a prima facie case on application for judgment.

6. AMENDMENTS-when copy of ordinance may be filed before hearing, as amending unpaid tax report. Where the report of the city clerk to the county treasurer of unpaid special sidewalk tax is not accompanied by a copy of the ordinance for the improvement, as required by section 4 of the Sidewalk act, (Laws of 1875, p. 64,) the court may allow such copy to be filed, before the hearing, as an amendment of the report.

7. MUNICIPAL CORPORATIONS-general sidewalk ordinance may be incorporated in subsequent ordinance by reference. A general ordinance adopted by a city, providing that all sidewalks shall thereafter be

built by special taxation, upon a fixed basis respecting the proportion to be borne by the city and the owners, and which provides, in detail, the manner of construction, and that special ordinances may be passed from time to time locating such walks, may be incorporated, by reference, into a subsequent ordinance specifying the places where sidewalks are to be built by special taxation..

8. SAME-effect where sidewalk ordinance provides for giving notice to orners to build walk. A special taxation ordinance for the building of sidewalks need make no provision for notifying property owners to construct their portions of the walk, but where such ordinance makes it the duty of the street commissioner to serve such a notice, the city, on application for judgment of sale for the tax, must show affirmatively that such ordinance has been complied with.

APPEAL from the County Court of Christian county; the Hon. LYMAN G. GRUNDY, Judge, presiding.

J. C. MCBRIDE, for appellant.

A. H. RANES, City Attorney, E. A. HUMPHREYS, State's Attorney, and JOHN E. HOGAN, for appellee:

It is proper to permit amendment to every irregularity or informality in assessment rolls, or any of the proceedings connected with the assessment, levy and collection of taxes. Starr & Curtis' Stat. sec. 193, p. 3471; Mix v. People, 106 Ill. 426.

Failure of a town collector to return a delinquent list to the county collector, under oath, does not affect the jurisdiction of the court to render judgment for taxation. Fisher v. People, 84 Ill. 491.

Error or informality in the proceedings, or in the acts of officers connected with the assessment, levy and collection of taxes, not affecting the substantial justice of the tax itself, will not vitiate. Edwards v. People, 88 Ill. 340; Railway Co. v. Surrell, id. 535; DuPage County v. Jenks, 65 id. 275; Union Trust Co. v. Weber, 96 id. 346; Railway Co. v. People, 141 id. 483; Coal Co. v. People, 157 id. 543; Railroad Co. v. People, 147 id. 9; Smith v. People, 149 id. 549.

The burden of overcoming the prima facie case made by the clerk's return is upon the objector, and the evi

dence must be clear and explicit. Railway Co. v. People, 116 Ill. 401; Railway Co. v. People, 119 id. 207.

Where the tax is a particular kind, and all unpaid, judgment may be rendered for the aggregate sum. Railway Co. v. People, 119 Ill. 207.

All residents of a city are charged with notice of the contents of all ordinances passed for its government and welfare. Mather v. Ottawa, 114 Ill. 660.

Mr. JUSTICE BOGGS delivered the opinion of the court:

This is an appeal prosecuted to bring in review proceedings had in the county court of Christian county in the matter of the application of the county treasurer of said county for judgment for unpaid special taxes levied for the purpose of constructing sidewalks upon certain streets of the city of Taylorville.

The appellant, Hoover, owned two separate parts of lots, against each of which judgments were asked for alleged unpaid special taxes levied against them separately. Various objections were presented by the appellant in the county court and are renewed in this court, but it is not necessary we should notice all of them.

The

It is conceded by counsel the judgment appealed from is the total amount due for the whole of such alleged special taxes, which had been assessed and levied in separate amounts upon two different lots or parts of lots. effect of the judgment was, therefore, to impose upon each of the separate properties taxes assessed and levied upon the other, and to order that each or both be sold for the total amount of taxes assessed and levied against both. Such a judgment is wholly unauthorized. Judgments for special taxes are in rem, and can only lawfully operate against the particular tract or lot of land against which the taxes were assessed. We held in Craw v. Village of Tolono, 96 Ill. 255, and City of Virginia v. Hall, id. 278, that the provisions of section 3 of the act in force July 1, 1875, authorizing cities and towns to collect spe

cial taxes wherewith to defray the cost of local improvements, (Laws of 1875, p. 63,) were unconstitutional, so far as they purported to create personal liability of the owner of the lot or part of lot against which the assessments were levied to pay such taxes. The appellant, the lot owner, appeared and defended, but did not thereby subject himself to a judgment in personam, but in such applications the only judgment which may be lawfully entered is against the property upon which the taxes are assessed. (People v. Dragstran, 100 Ill. 286.) Nor does an owner so defending subject himself to a judgment which charges upon one of his lots or parts of lots the tax assessed against or levied upon another lot or tract. judgment appealed from must be reversed.

The

It is proper, as the question has been raised and argued by counsel, and as the application must again be heard by the county court upon the order of this court remanding it, that we should notice the objections urged against the report made by the city clerk to the county treasurer of the lands and lots against which the special taxes in question remained unpaid.

Section 4 of the act of April 15, 1875, (Hurd's Stat. 1889, p. 296,) provides: "Upon failure to collect such special tax as heretofore provided in this act, it shall be the duty of said clerk, within such time as such ordinance may provide, to make report of all such special tax, in writing, to such general officer of the county as may be authorized by law to apply for judgment against, and sell, lands for taxes due county or State, of all the lots or parcels of land upon which such special tax shall be so unpaid, with the names of the respective owners thereof, so far as the same are known to said clerk, and the amount due and unpaid upon each tract, together with a copy of the ordinance ordering the construction of said sidewalk, which report shall be accompanied by the oath of the clerk that the list is a correct return of the lots and parcels of land on which the special tax levied by

authority of said city, town or village for the cost, or partial cost, (as the case may be,) of the sidewalk in said. ordinance specified, remains due and unpaid, and that the amounts therein stated as due and unpaid have not been collected, nor any part thereof. Said reports, when so made, shall be prima facie evidence that all the forms and requirements of the law in relation to making such return have been complied with, and that the special tax, as mentioned in said report, is due and unpaid."

The report of the clerk in the case at bar consists of the original warrant issued by said city clerk to the city marshal of the city of Taylorville, commanding the said marshal to collect from the appellant the sum of $124.74, being the special taxes levied against the two pieces of property, upon which warrant is endorsed the return of the marshal to the effect he had demanded payment of said sum of appellant and that payment had been refused. The warrant contained what is alleged to be a description of the property, as follows, to quote from the warrant: "Being the special tax levied against the following described real estate, to-wit: For construction of concrete sidewalk east of lot 12, block 22, original town (now city) of Taylorville, 96-3x8c-770 square feet at 14c, $107.80; 35-6x7-1, 251 square feet at 14c, $35.14; 10-0x7-7, double strength, 75 square feet at 25c, $18.75; excavation, 18 yards at 25c, $4.65; total, $166.32." The warrant was accompanied by an affidavit of the city clerk, as follows: "STATE OF ILLINOIS,

County of Christian.

"I, J. F. Henson, city clerk of the city of Taylorville, do hereby certify that the above and foregoing is a true and correct copy of the names and descriptions of lots and amounts due and unpaid on the same, all in the city of Taylorville, on the 21st day of January, A. D. 1897.

J. F. HENSON, City Clerk. "Subscribed and sworn to before me this 21st day of January, 1897. W. E. PEABODY, County Treasurer. "Filed January 21, 1897.-W. E. PEABODY, County Treasurer."