Peoria, Decatur & Evansville Railway Co. v. People ex rel. Smith , 116 Ill. 232 ( 1886 )

Mr. Justice Scholfield

delivered the opinion of the Court r

Section 119, of chapter 121, entitled “Roads,” etc., (2 Starr & Curtiss’ Annotated Statutes, p. 2168,) reads thus-: “The highway commissioners of each town shall annually ascertain, as near as practicable, how much money must be raised by-tax' on real, personal and railroad property, for the making- and repairing of bridges, the payment of damages by reason of the opening, altering and laying out of- new roads and ditches, the purchase of the necessary tools, implements and machinery for working roads, the purchase of the necessary material for building or repairing or draining roads and bridges, the pay of the overseer of highways during the ensuing year, and for the payment of all outstanding orders drawn by the commissioners on their treasurer, commencing on Tuesday next preceding the annual meeting of the county board in September,—which tax shall be extended on the tax books according to the assessment of the current year r and shall levy a tax on all the real, personal and railroad property in said town, not exceeding forty cents on the $100 ; and they shall give to the supervisor of the township, and in Cook county to the county board, a statement of the amount necessary to be raised, and the rate per cent of taxation, signed by said commissioners, or a majority of them, on or-before the Tuesday next preceding the annual September meeting of the board of supervisors, or the county board of Cook county, who shall cause the same to be submitted to said board for their action at such September meeting of said board. ”

Counsel for appellant insist that this requires the board of supervisors to take affirmative action upon the reports of the commissioners of highways, which affirmative action is jurisdictional, and that therefore the county clerk extended the taxes here in question without authority of law. But what affirmative action does it require ? It can not be in declaring the tax to be levied, for language can not be plainer than that which declares that the commissioners of highways shall levy the tax. The sole difficulty is in ascertaining for what purpose the statements of the amounts necessary to be raised, and the rate per c.ent of taxation, are to be laid before the board of supervisors for their action.

It is stipulated that these townships had adopted what is known as the “labor system” in the Boad law. Under that system it is provided by section 110, chapter 121, (2 Starr & Curtiss’ Annotated Statutes, p. 2167,) that “every overseer of highways shall deliver to the supervisor of his town, * * * at least five days previous to the annual meeting of the board of supervisors, the lists furnished by the commissioners of highways, containing the land and personal property road tax, with an affidavit thereto, sworn to before the supervisor of the town, or some justice of the peace of the county, that on all tracts of land or railroad property on such list opposite which the word ‘paid’ is written, such tax is paid, and that on all tracts of land on railroad property on such list opposite which the word ‘paid’ is not written, such tax is due and remains unpaid, according to the best of his knowledge and belief.” The 116th section of the same statute makes it the duty of the supervisors of the several towns to receive the list when delivered pursuant to section 110, and lay the same before the board of supervisors of the county. And the next section (i. e., 117,) provides: “It shall be the duty of the board of supervisors * * * to cause the amount of arrearages0 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 of the town. ” So, also, by the proviso to section 119, where an additional tax has been voted at a town meeting for repairing roads and bridges, the board of supervisors shall cause the same to be extended on the tax books.

Manifestly, therefore, it was designed by the General Assembly that the tax-payers should have the guaranty of protection against unauthorized and excessive burdens of taxation, in these respects, afforded by the supervision of the board of supervisors. Although that board could not reject the action of the commissioners of highways, when within their lawful authority, yet we think, beyond question, that if it appeared from the statements laid before the board, that they were, in truth, not what they purported to be, or that a majority of the commissioners had not concurred in levying the tax, or that the tax was levied for a purpose not authorized by law, or that it exceeded the rate per cent allowed by law, it would be the duty of the board to direct that the amounts be not extended, but that the statements be returned for correction, if susceptible of correction, and if not, that they be utterly disregarded by the clerk. In respect to these matters, the duty under these sections is not on the clerk, as it sometimes is, but on the board of supervisors, and the clerk’s duty is limited to extending the levy in the proper column when the statements are delivered to him for that purpose. It would, moreover, seem desirable that the statements required by section 119 should be before the board of supervisors, to enable them to intelligently make the requisite orders under section 116 and the proviso to section 119, in order that the amounts of such taxes be included and extended with the tax assessed under section 119, as elsewhere required. But in the present instance there were no taxes to be extended either under section 116 or the proviso to section 119, and so no-orders of the board in that regard could be made. All that was to be done was therefore simply to cause the statements contemplated by section 119 to be delivered by the board to the clerk, that he might extend the levies in the proper column. There was no order of rejection or temporary suspension required by the facts.

It will be observed the statute requires no order of'approval to be entered. ' It does not even direct that - any record in such eases .be made. Still, inasmuch as a record is the proper mode of showing the action of the board, it will be conceded there should be some record, and to avoid all question and doubt in such cases, it should fully recite the action of the board. But any record from which it can reasonably be concluded that the statements were laid before the board, and the levies were not ordered by the board to be not extended, and that they were delivered to the clerk afterwards, would clearly be sufficient, because those embrace the material requirements of the statute. The record here professes to be; and we must, because it is uncontradicted in any way, assume as a fact that it is, the record of the board of supervisors, and not of the action of members of the board, apart from the board. It recites: “Now come the several super-sets and file with the- clerk the following levies. ” This necessarily implies that the levies were then before the board, for otherwise it is impossible that the several supervisors could then, as a part of the proceedings of the board, file them with the clerk. The affirmative act of filing them 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 he 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. These views have, had our sanction in previous cases, and we are convinced that they should be adhered to. Gage v. Bailey et al. 102 Ill. 11.

There is another reason affecting the exercise of the discretionary powers of the board of supervisors why these statements should be laid before the board at its annual September meeting, in which every tax-payer has a vital interest, and yet which does not require that the board shall make any order respecting them. Seetion 58, of chapter 34, (1 Starr & Curtiss’ Ann. Stat. p. 662,) authorizes the board of supervisors “to appropriate funds to aid in the construction of roads and bridges, in any part of the county, whenever a majority of the whole board of the county may deem it proper and expedient. ” By the preceding section 25, of the same chapter, in the sixth clause, power is vested -in the board “to cause annually to be levied and collected taxes for county purposes, including all purposes for which money may be raised by the county by taxation.” And by section 122, chapter 120, (same edition of Statutes, p. 2065,) “the amount of all taxes to be raised for county purposes must be determined by the board at its annual September meeting.” It must be apparent that to know what amount should be raised to meet anticipated appropriations to aid in the construction of roads and bridges, it would be important to know what amount had been levied by the commissioners of highways in the several townships for those purposes. Moreover, in raising money for all discretionary appropriations, whether for roads and bridges, or for other purposes, in a moral point of view, at least, the board of supervisors owe the duty to the tax-payers, and the tax-payers have a right to demand, that the amount of taxation for other purposes shall be taken into consideration, and that the burden of taxation shall always be made as light as a wise regard for the public welfare will admit, and it is therefore reasonable to conclude that these considerations affect the action of the hoard, in some measure, in levying county taxes. It is true this is but information which might be afforded by the clerk without having the originals before the board, yet it is for the legislature, and not the courts, to prescribe what and by whom information shall be laid before the board. It might be an important protection to the tax-payer, in many instances, to have the supervision of the board of supervisors, instead of the county clerk, against imposition and illegal action in the matter of such taxes, and if so, then it would also be important that the originals themselves, rather than the conclusions thereon of the clerk, should be before them for information in the respect last considered.

We see no cause to disturb' the judgment below. It will therefore be affirmed.

Judgment affirmed.