Ottawa Gas Light & Coke Co. v. People

Mr. Justice Shope delivered the opinion of the Court: It was not error to overrule the motion to dismiss the suit. The attorney who instituted the suit, it was shown, was in that regard acting by the direction and under the authority of the county board, and the authority of the county board to institute and prosecute suits for delinquent taxes, whether due upon delinquent lands or personal property, is amply given in section 230 of the general Revenue law. It is contended, however, that while the authority of the county hoard to cause the institution of suit for unpaid taxes is ample, it is not at liberty to select counsel, but must act by and through the State’s attorney of the county, and that if the State’s attorney is disqualified, by interest, sickness, absence or other inability, the court alone can appoint another attorney to act. In the statute defining the duties of the State’s attorney, (Rev. Stat. chap. 14, par. 5,) it is among other things made his duty “to prosecute all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties and forfeitures accruing to the State or his county, * * * which may be prosecuted in the name of the People of the State of Illinois.” And the succeeding section provides, that if such officer is sick or absent, unable to attend, or interested in the cause, “the court in which such cause or proceeding is pending may appoint some competent attorney” to act in the case. It would be perfectly competent for the county board to direct the State’s attorney to institute suits to recover delinquent and unpaid taxes, and to prosecute the same, and in such case it would be the manifest duty of the State’s attorney to act; and if, in obedience to such direction, he should institute a suit, and thereafter become disqualified-from acting, the court in which the cause was pending might. appoint another competent attorney to act in his stead. We are not disposed, however, to hold that the county board is, by the statute defining the duties of the State’s attorney, denied the power and authority to select and empower any competent attorney to represent the People in beginning and prosecuting suits to recover delinquent taxes. Notwithstanding the statute last referred to, it is manifest that the- State’s attorney could not, of his own motion, begin and carry forward proceedings of this character. Whether or not resort shall be had to proceedings at law to recover of property owners the overdue and unpaid taxes levied thereon, rests in the discretion of the county board; and we have no doubt that under the general power of the county board, as the fiscal agent of the county, it has the inherent right to direct the course of the proceeding, and select the persons and agencies through whom it will act. We are of the opinion that the declaration, and each count thereof, is fatally defective, and that the demurrer thereto-should have been sustained. At the foundation of the right of the county board to institute proceedings in its own name, or in the name of the People of the State of Illinois, as this suit is brought, lies the fact that taxes are due upon property listed for taxation within that county. Personal property is ordinarily to be listed for taxation where it is found, or at the domicile of the owner, and capital stock at the place of the principal office of the corporation, if it has such office within the State, and if not, then at the place where such corporation, by its agents, may be transacting business within the State. (Rev. Stat. chap 120, par. 7.) JFor aught that appears in either count of this declaration, the right of action may have-accrued anywhere in the State; but it is manifest that there could be no right to maintain the suit unless it affirmatively appeared that the tax is due and owing upon property that by law is to be listed for taxation within the county of LaSalle. There is no averment that the taxes, or any part thereof, for the recovery of which this suit was instituted, accrued within the county of LaSalle, or any averment that by intendment can be construed as alleging that fact. The liability for taxes-is a statutory liability, and arises upon the failure of' the citizen to pay the taxes, levied by proper authority, on property owned by him on the first day of May in any year. Such facts-must therefore be averred in the declaration, not only that show the statutory liability, but the right of the plaintiff to recover. (People v. Winkelman, 95 Ill. 412; Biggins v. People, 96 id. 382; Bowman v. People, 114 id. 474; People v. Davis, 112 id. 272.) In the latter case we said: “Whether property is legally taxable at a particular place is a question of law, and not of fact; and the pleader seeking to charge one with liability because his property, is taxable at a particular place, must state the facts from which such liability results, as a conclusion of law. This is elementary, and has been often decided by this court.” The same rule must obtain here. It is further objected to the first count of the declaration, that it is defective for the reason that it is not alleged that the capital stock was assessed by the State Board of Equalization, and that the taxes in controversy were levied thereon for each of the years designated, and that the second count is defective for not averring that the property was duly assessed, etc., and that each count is defective in not averring by what authority the taxes were levied, and the particular municipality or corporation to which they were payable. The averment of the declaration is, that the “taxes were levied and extended, which necessarily includes a levy and extension upon a valid assessment. By the statute, in a suit for the recovery of a personal property tax, the return of the collector that such tax is delinquent is made prima facie evidence that such taxes are due and unpaid. There can be no doubt that • within the meaning of this statute the tax upon the capital stock is a personal property tax, (Cooper v. Corbin, 105 Ill. 224.) Moreover, the right of recovery is in the People of the State of Illinois, in whose name the suit may be instituted for the recovery of all taxes due and unpaid, and it is unimportant that a portion sued for may be due to the State, another to the county, and still other parts of it to various municipal and quasi municipal corporations within the county, to whom it must, upon collection, be finally distributed. The delinquent return by the collector, while prima facie evidence, is not conclusive; and if, for any reason, it should be excluded, or the People should so desire, the liability may be shown by proving a valid assessment, the levy of the various taxes by competent authority, and the extension of the various taxes hy the proper officers, and their non-payment, and thus establish the liability of the defendant, and the right of the plaintiff to a recovery. It is also said the declaration is defective because not alleging the sums or amounts due, etc., for the years, severally, in which the taxes sued for accrued. By law the unpaid taxes are, from year to year, to be carried forward on the collector’s books, and added to the current tax of the year. It would have been better pleading to have averred the accruing of the taxes for the several years, and their having been carried forward as back taxes by the proper officer, etc.; but it is manifest that the objection goes to the form, and not to the substance of the right of recovery, and therefore can not be raised by general demurrer. It is insisted, also, that the statute under which the tax, upon the capital stock of the defendant was levied is unconstitutional and void. This question was before us in Sterling Gas Co. v. Higby, 134 Ill. 557, Coal Run Coal Co. v. Finlen, 124 id. 666, and Ottawa Gas Co. v. Downey, 127 id. 201, where the constitutionality of the act of the legislature was sustained.. The question there received full consideration, and no good purpose can be subserved by its re-discussion. ■ Other minor objections have been urged, which we' have considered, but do not find it necessary to discuss. There is no other substantial error than that indicated. For the error in overruling the demurrer to the declaration the judgment is reversed and the cause remanded. Judgment reversed. Mr. Justice Craig : I do not concur in reversing this judgment. While the declaration may not be technically accurate, I think it good in substance, and as the demurrer was general it was properly overruled.