Peoria, Decatur & Evansville Railway Co. v. People ex rel. Isley

Mr. Justice Wilkin delivered the opinion of the Court: The only question presented by this record is, was the tax for which judgment was asked in the court below so irregularly levied as that it can not be collected. Under our present statute, errors or informalities in the proceedings of officers connected with the assessment, levying or collecting of a tax, not affecting the substantial justice of the tax itself, will not vitiate it or defeat its collection. (Rev. Stat. chap. 120, sec. 191.) Here, however, the objection goes to the right of the county clerk of Jasper county to extend the tax in question against the property of appellant, for want of a legal levy thereof by the proper town authorities, and for want of a certificate of the amount of tax required to be levied by the proper town authorities. If these objections are well taken, the assessment is illegal and void, and therefore unjust. Section 127 of the Revenue act makes it the duty of county clerks in this State “to estimate and determine the rate per cent upon the proper valuation of property in the respective towns * * * that will produce, within the proper divisions of such county, not less than the net amount of the several sums that shall be required by the county board, or certify to them according to law.” Section 122 of the same chapter provides that the proper authorities of towns, etc., shall, on or before the second Tuesday of August, annually, certify to the county clerk the amounts which they require by taxation. Section 4, chapter 139, article 12, of the Revised Statutes, requires the town clerk to certify to the county clerk, at the proper time, the amount of taxes required to be raised for all town purposes. It will thus be seen that in the extension of town taxes the authority of the county clerk is the certificate of the town clerk. Without such certificate any attempt to extend such tax is illegal and void. (Weber et al. v. Ohio and Mississippi Railway Co. 96 Ill. 451.) Back of such certificate must, of course, be a levy of the tax by the proper township authorities, because from such levy, only, can the town clerk obtain the amount to be certified. It being stipulated by these parties that the only authority which the county clerk had for extending the tax in question, was the statement of the board of town auditors, certified by the town clerk, set out in the foregoing statement of facts, the-first inquiry must be, has that board, under our statute, legal authority to levy a township tax. The only provision of the-statute cited by appellee as conferring such power is section 7,. chapter 139, article 13, of the Revised Statutes, which reads, as follows: “Sec. 7. The board shall make a certificate, to be signed by a majority of said board, specifying the nature of the claim-' or demand and to whom the amount is allowed, and shall cause such certificate to be delivered to the town clerk of said town, to be by him kept on file for the inspection of any of the-inhabitants of said town; and the aggregate amount thereof shall be certified to the county clerk at the same time and in the same manner as other amounts required to be raised for town purposes, which shall be levied and collected as other town taxes, except in towns mentioned in section 4, article 4, of this act, the amounts shall be certified to the county board, who shall include the same in their estimate of town expenses.” There is certainly nothing in the language of this section which can be construed as authorizing the board of auditors to levy town taxes. But it is contended by appellee, that inasmuch as by the preceding section of this article all charges and claims against their towns must be audited by said board, and by this section delivered to the town clerk, the aggregate amount of which is to be certified to the county clerk, to be levied and collected as other town taxes, such board does, in effect, fix the whole amount of tax required to be levied. The language of the section refutes this contention. It expressly says, the aggregate amount of the claims so delivered to the town clerk shall be certified to the county clerk at the same time and in the same manner as other amounts required to he raised for town purposes, which shall be levied and collected as other town taxes,—thus clearly showing that such aggregate amount is only a part of the town tax contemplated by the section. 'Had the auditors performed their duty under this section by certifying the claims allowed by them to the town clerk, and had that officer certified the aggregate amount thereof to the county clerk, the latter might lawfully have extended such amount as town tax required to be levied,—not because the auditors have the power to assess or fix the whole amount of the town tax, but because claims audited and allowed by it against the township may be certified by the town clerk and collected as other town taxes. Referring to the statement upon which it is agreed this tax was extended, it will be seen that nothing whatever is said about claims against the township. It is not an attempt by the auditors to have money raised for the purpose of paying claims allowed by it against the town, and when'it is said, “this certificate evidently intended to say that twenty-five cents on the one hundred dollars’ worth of taxable property of the town of Wade would equal the claims and demands allowed by the board of town auditors against the town,” it is assumed that the certificate was intended to say that which it does not say, and with which its language is wholly inconsistent. The statement in plain language expresses a determination of the board that a certain per cent of tax shall be levied for town purposes. No such power is given it, directly or indirectly. Moreover, section 3, article 4, of the chapter on “Township Organization,” clearly confers the power upon the electors present at the annual town meeting, to direct the raising of money, by taxation, for all township purposes. Section 2, article 12, makes it the duty of the town clerk to keep a record of the proceedings of every town meeting, including votes for raising money since the last annual meeting of the board, and by section 3 he is required to deliver to the supervisor, before the annual meeting of the county board, certified copies thereof. The next section, as above quoted, makes it his duty to certify to the county clerk the amount of taxes required to be raised for all town purposes. It seems clear, therefore, that the amount of tax required is obtained by the town clerk from the proceedings of the annual town meeting. He is the only town officer authorized to certify that amount to the county clerk. That which is called a certificate, in this case, of the amount of tax to be levied for town purposes, is in no sense that of the town clerk. His certificate is simply an authentication of the statement of the board of auditors filed in his office. He does not pretend to state what amount is required, but simply certifies that a certain statement had been filed in his office. Again, there is nothing in the so-called certificate from which the county clerk could ascertain the amount of tax required. What is meant by “twenty-five per cent of tax shall be levied on the real estate and personal property of said town, including railroad track and rolling stock ?” We may conjecture, as doubtless did the county clerk, that it was intended to mean that per cent on the taxable property of the township according to its assessed value; but it would certainly be extending section 191, supra, beyond its reasonable intendment, to hold that this was but an irregularity not affecting the justice of the tax itself. Every tax-payer of a township has a right to know, with reasonable certainty, what amount of township tax is being levied in his township, and to know that it has been assessed by the legally constituted authorities, before he is called upon to pay it. The judgment of the court below could only be sustained by holding that, under section 191, the mere fact that a county clerk has extended a tax is conclusive evidence that it is just. This, clearly, is not what is meant by that section. We are unable to find any authority of law for the assessment of this tax. The judgment of the county court will be reversed. Judgment reversed.