People ex rel. Kellogg v. Chicago, Rock Island & Pacific Railway Co.

Mr. Chief Justice Farmer delivered the opinion of the court: This is an appeal from a judgment of the county court of Henry county overruling objections of appellants to the application of appellee for judgment and order of sale of appellant’s property for delinquent road and bridge taxes in the townships of Galva, Weller, Cambridge, Andover, Alba, Annawan, Atkinson and Oseo, in said county, for the year 1914. The objections to the judgment for taxes are based on the claim that the levy was not made in compliance with the requirements of the Road and Bridge law which went into effect July 1, 1913. Section 56 of that act requires that the commissioners of highways hold a regular meeting on the first Tuesday in September to determine and certify to the board of supervisors or board of county commissioners the amount necessary to be raised by taxation for the construction, maintenance and repair of roads and bridges, not exceeding sixty-one cents on each $100, such certificate to be filed in the office of the county clerk, who shall present it to the county board. The first Tuesday of September, 1913, was the second day of the month. The certificate of the commissioners of highways of Oseo township upon which the road and bridge tax in that township was extended by the county clerk was dated September 5 and filed in the county clerk’s office September 6. We have held that the requirement of section 56 of the Road and Bridge act of 1913 that the commissioners meet the first Tuesday in September and determine and certify the amount necessary to be raised for road and bridge purposes is mandatory and must be complied with to make the levy valid. (People v. Toledo, St. Louis and Western Railroad Co. 266 Ill. 112; Same v. Same, 267 id. 142.) It was proved on the hearing of the objections to the road and bridge tax in Oseo township, by the record kept by the town clerk, that the commissioners of highways and the board of town auditors met September 2, 1913, which was the first Tuesday, and levied a road and bridge tax of thirty-six cents on each $100, and an additional twenty-five cents on each $100 for putting in concrete bridges. A certificate of the commissioners of highways and of the board of town auditors was made and sent to the county clerk, who refused to receive and file it. The certificate was not made at the time required by the act of 1913 but was made in compliance with the provisions of sections 13 and 14 of the old act. After it was returned to the town clerk the highway commissioners met September 5 and made the certificate upon which the tax was extended, and which, in form, complied with the law in force at the time it was made. No levy could, of course, be made under the old act after the 1913 act went into effect. People v. Chicago, Burlington and Quincy Railroad Co. 266 Ill. 63; People v. Illinois Central Railroad Co. 265 id. 429; People v. Toledo, St. Louis and Western Railroad Co. 249 id. 175. It is insisted by appellee that no particular form is prescribed by section 56 of the act of 1913; that the commissioners did meet at the time required and certified to a levy of the tax, and that the certificate made at the subsequent meeting held September 5 should be considered and treated as an amendment of the former levy, and reference is made to section 191 of the Revenue act as supporting that contention. That section governs the proceeding in the county court upon application for judgment, and authorizes the court, in its discretion, to permit any irregularity or informality connected with the assessment or levy of taxes to be corrected, supplied and made to conform to the law. We think it has no application to the question here involved, and that the extension of the tax upon a certificate of levy made after the time fixed by law for making it was invalid. The' county clerk testified that the tax was extended upon the certificate of the commissioners made September 5. In the other seven townships the commissioners of highways met on the first Tuesday of September, 1913, and made certificates of levy for the road and bridge tax in the respective townships in conformity with the requirements of sections 13 and 14 of the old act. They did not file the certificates of levy with the county clerk but filed them with the town clerks of the respective townships, and they filed certified copies of them with the county clerk. It is contended by appellee that it does not appear from the record that the original certificates were not filed with the county clerk and that certified copies of them were filed instead of the originals. That question might be left in some doubt from the oral testimony, alone, of the town clerks, but that testimony supplemented by their certificates to the certificate of levy filed with the county clerk we think clearly shows the originals were not filed with the county clerk.The town clerks certify that the certificate is a complete copy of the original certificate of levy delivered to the clerk by the commissioners of highways “and now remaining on file in my office.” It seems to us no reasonable conclusion can be drawn other than that the certificates were filed with the town clerks, who filed certified copies with the county clerk. Section 56 of the act of 1913 requires the certificates of levy to be filed in the office of the county clerk, and no valid tax can be extended by that officer upon a copy filed with him of the certificate of levy. People v. Cairo, Vincennes and Chicago Railway Co. 265 Ill. 634; Litchfield and Madison Railway Co. v. People, 225 id. 301; People v. Kankakee and Southwestern Railroad Co. 218 id. 588. It is also contended by appellee that the objections of appellant are not properly before the court because they were not made a part of the record by the bill of exceptions. They are copied in full by the clerk in the common law record, but appellee insists they were not pleadings, and could only be made a part of the record by incorporating them in the bill of exceptions. It is true, the common law form of pleading does not obtain in cases of this character, but it has been held that the delinquent list filed by the collector is in the nature of a pleading and serves the office of a declaration. (Wiggins Ferry Co. v. People, 101 Ill. 446.) The objections of the-property owner serve the purpose of a plea by him, and we think the objections are properly preserved as a part of the record without being incorporated in the bill of exceptions. . The taxes appear from the record to have been extended against the Rock Island and Peoria line in some of the townships, and appellee insists it was incumbent upon appellant to show, by proof, that it either owned or controlled that line or that it had such an interest as to authorize it to object to the validity of the tax. The objections are to taxes charged against appellant on the Rock Island-and Peoria line. No question was raised in the county court as to the interest of appellant or its right to object to the tax but the objections were heard upon their merits. It is too late now to raise that question for the first time. People v. Chicago and Mastern Illinois Railroad Co. 214 Ill. 190; Cincinnati, Indianapolis and Western Railway Co. v. People, 205 id. 538. We are of opinion the county court erred in overruling the objections of appellant, and the judgment will be reversed and the cause remanded, with directions to sustain the objections. Reversed and remanded, with directions.