Allwood v. Cowen

Mr. .Justice Scott delivered the opinion of the Court: The bill in this case was brought by Thomas Allwood, against Alexander Cowen and others, to enjoin a tax levied on credits alleged to belong to him, and that are charged to have been omitted from the assessments made against him for the years 1877,1878 and 1879, which assessments he charged were made without authority of law, and are therefore void. Counsel for the respective parties agree in the statement of facts, and the decision involves only the construction of a number of sections of the Eevenue act now in force. Section 276 of the Eevenue act, (Rev. Stat. 1874,) and which is the same as that now in force, provides that if any real or personal property shall be omitted in the assessment of any year or number of years, when discovered shall be listed and assessed by the assessor, and placed on the assessment and tax books. It was under this section of the statute the assessor of the town of Princeville, in which complainant resides, undertook to assess complainant for past years on credits which he insisted had been “discovered” to have been omitted in former assessments. It is made to appear complainant was assessed on his credits for the years 1877, 1878 and 1879, and had paid all taxes so assessed and levied for those several years. In 1880, the assessor, under the assumption he had discovered credits belonging to complainant that had been omitted in ascertaining the amount of credits upon which comjdainant was liable to be assessed for the past years named, determined the amount he believed to have been omitted for each year, aggregating the sum of about $7000, and assessed and placed the same on the assessment and tax books for the year 1880, against complainant, with the amount of credits assessed against him for the latter year. This, it is thought, is without any warrant or authority of law. Most articles of personal property are required by - section 25 to be listed and assessed by the number of the articles owned by the party to be assessed, — as, for instance, the number of horses, cattle, hogs, wagons, watches, clocks, etc., — the number of each to be separately stated by the owner when listing the same. But credits are not assessed in that way. The whole amount is ascertained, and from that amount the amount of bona ficle debts owing by such person may be deducted, and it is only the balance that is subject to taxation. In this case complainant is not a banker, broker or stock-jobber, and he was entitled, under the 27th section of the Bevenue act, to deduct from the amount of his credits for the years 1877, 1878 and 1879, the amount of bona fide debts owing by him for the respective years. So far as the assessor exercised his judgment in ascertaining such facts, under the statute his acts are in the nature of judicial acts, and are not subject to review by his successor, whether decided ever so erroneously. Ascertaining the amount of credits after deducting bona fide debts owing by the party to be assessed, involves, in some degree at least, judgment and determination on the part of the assessor acting. No power is given by statute to his successor, whether he is his own successor or not, to correct or in any manner revise the judgment of his predecessor in such matters. It is apprehended section 276 has no application to such cases. It applies only to cases where the owner omits to list the whole number of articles of personal property, — as, for instance, the whole number of horses he may own, — the specific articles omitted may, when “discovered,” be assessed and placed on the assessment and tax books for any subsequent year. But credits are not assessed by items, and to discover what items, if any, were omitted in ascertaining the amount of credits assessed in any previous year, would require investigation, and that implies the power of the acting assessor to review the acts of his predecessor in such matters, — a power which does not exist, by statute or otherwise. What was done by the assessor in this case was not assessing specific articles of personal property that were discovered to have been omitted in former years, but it was simply raising the amounts of credits after deducting bona fide debts, as the same were determined in former years. Certainly the statute has given the assessor no authority, in a subsequent year, to raise the assessed value of any article of personal property which had been once fixed in a former year. Nor has the statute conferred any authority on an assessor to raise or increase the amount of credits liable to taxation after the same has been ascertained in a former year by his predecessor, and the action of the assessor in this case was without authority of law. No doubt is entertained as to the jurisdiction of a court of equity to afford the relief sought by the bill in this case. This court has had frequent occasion to declare that chancery has jurisdiction to enjoin the collection of a tax when it is levied without authority of law, or where the property assessed is> not subject to taxation. The cases in this court that declare this doctrine are numerous and consistent. It will be necessary to cite but few of them: Kimball v. Merchants' Loan and Trust Co. 89 Ill. 611; Searing v. Heavysides, 106 id. 85. In the case being considered the tax assessed against complainant was wholly without authority of law, and therefore comes within the class of cases where the court has uniformly entertained jurisdiction to afford relief, otherwise great injustice might be done. The decree of the circuit court will be reversed, and the. cause remanded for further proceedings not inconsistent with this opinion. Decree reversed.