Wabash Railway v. People

Mr. Justice Scholfield delivered the opinion of the Court: Appellant interposed several objections to the rendering of judgment'by the county court against it for delinquent district road taxes, which that court overruled, and those objections are now insisted upon as grounds of reversal. They present only these questions: First, is it indispensable to the authority of the county clerk to extend the district, road taxes upon the tax books, that the board of supervisors shall first make an order directing him to make such extension; and second, is it indispensable to the validity of a judgment for such taxes that the delinquent lists required to he made out and returned by the overseers of highways shall be sworn to. In our opinion the answer to both must be in the negative. First—It is provided by section 83, chapter 121, of Starr & Curtis’ Statutes, (vol. 2,) that “the commissioners of highways of each town shall annually ascertain, as near as practicable, how much money must be raised by tax on real and personal property, and railroad property known as ‘railroad track’ and ‘relling stock,’"for the making and repairing of roads, only, to any amount they may deem necessary, not exceeding forty cents on each one hundred dollars worth, as equalized and assessed by the State Board of Equalization, for the purposes of taxation for the previous year, and shall levy and assess the same as a road tax against said property.” The validity of the tax, as a charge against the property, thus depends only upon the action of the commissioners of highways; but if the tax shall not be collected, pursuant to the several provisions relating to that subject, the overseer of highways is required to make return of that fact to the supervisor of his town, in the manner required by section 110 of that act, and the supervisor is required by section 116 of the act to receive such returns of the overseer of highways, and to lay the same before the board of supervisors; and by section 117 of the act it is made the duty of the board of supervisors “to cause the amount of arrearages of the road tax returned by the overseer of highways to the supervisors, as provided in section 110 of this act, to be levied on the lands returned, and to be collected in the same manner that other taxes of the county are levied and collected, and to order the same, when collected, to be paid over to the commissioners of highways,” etc. It is.manifest that the only power vested thereby in the board of supervisors is supervisory, only, and that if the returns are in conformity with the law, the board has no discretion whatever to exercise. It will be observed that the board is not itself required to exercise any power of taxation, or to invest any officers or body with such power, but merely to cause the proper officers to exercise a power already possessed by them. They are to cause an existing duty to be performed,—that is, to supervise it,—and to cause action where action shall be needed; but manifestly, their duty is fully performed when the officers do, without direction from the board, precisely what the board is required to cause them to do. Whether the officers shall act of their own motion, or not until directed by the board, can obviously concern no one but the officers and the board, so long as it was the plain and undoubted duty of the board to direct the officers to do precisely—no more and no less—what the officers should have done without being directed. The public is only concerned to know that the facts existed which made it incumbent on certain officers to cause the tax to be ■extended, and that the tax was extended by the officers upon whom devolved the clerical duty of making the extension. In Gage v. Bailey, 102 Ill. 11, an objection was urged against a tax title that the county board did not levy the tax in question, and it was answered: “It was no more the business of the county board to levy the town taxes than it was its -duty to collect such taxes. It was only the duty of the board to cause the charges so certified to be levied on the property of the town and collected as ‘other taxes are levied and collected.’ It stands admitted the town taxes were in fact levied, and no •complaint is made that any greater sum was levied than ought to have been extended for collection. s * * The manner of causing town taxes to be levied, even if the board omitted or neglected to make any record of its action, did not and could not affect injuriously the tax-payer.” And in Peoria, Decatur and Evansville Ry. Co. v. The People, 116 Ill. 242, ■speaking of a like question, we said: “The affirmative act of filing them” (the certificates of levy of commissioners of highways) “with the clerk is conclusive that they are satisfactory ■and that they are filed with the clerk to be extended, for otherwise the order would be that they be not filed. When filed with the clerk they can be filed for no other purpose than that of extension, and his duty, under the law, to then proceed and ■extend the levies, at once attaches.” There was nothing decided in Leachman v. Dougherty, 81 Ill. 324, nor in Ohio and Mississippi Ry. Co. v. Commissioners •of Highways, 117 id. 279, asserting a contrary ruling to that hereinbefore indicated, for in both those cases it affirmatively appeared that the “certificates” and “lists” by virtue of which the respective taxes were levied were not returned to the board of supervisors. The evidence offered here by appellant was ■only the testimony of the county clerk that he extended the tax “from the lists as they are and appear in evidence, and not by any order of the board of supervisors, as no such order was made,” does not negative the presumption that the “lists” were properly before the board of supervisors, and the prima facie case made by the collector’s return must therefore control. Moore v. The People, 123 Ill. 645. Since this case has been pending on a petition for rehearing we have reached and announced a like conclusion as that herein indicated in Wabash Ry. Co. v. The People, 138 Ill.303. Second—The delinquent district road tax is to be collected “in the same manner that other taxes of the county are levied and collected.” (See sec. 117 of statute, ubi supra.) The requirement in section 110 of that statute, that “every overseer ■of highways shall deliver to the supervisor of his town * * * the lists furnished by the commissioners of highways, containing the land and personal road tax, with an affidavit thereto, ” is clearly to furnish' evidence of the fact of delinquency. But this is not jurisdictional. The jurisdictional facts are the levy of the tax, and the failure to pay it by the person lawfully-charged. The defaulting tax-payer is not interested in the affidavit. He may show that the tax has, in fact, been paid hut if he shall not do so, it does not concern him that the proper authorities have acted upon less or different evidence in that respect than they might have required. The objection-does not affect the substantial justice of the tax itself, and it-is therefore untenable. 2 Starr & Curtis’ Stat. sec. 193, chap. 120, p. 2087; St. Louis, Vandalia and Terre Haute Railroad Co. v. Surrell, 88 Ill. 535; Fisher v. The People, 84 id. 491; Union-Trust Co. v. Weber, 96 id. 346. The judgment is affirmed. ■ Judgment affirmed.