Ohio and Mississippi Railway Co. v. Commissioners of Highways , 117 Ill. 279 ( 1886 )

Per Curiam :

This is an action of debt, for certain road taxes, alleged to be due on forfeited property. It was stipulated, on the trial, that the “lists, on the authority of which the county clerk extended these road taxes on the collector’s books, were not presented to the board of supervisors of the county, and that- -said board made no order directing the county clerk to extend said taxes, or to cause the same to be collected, and that the county clerk had no other authority for extending said taxes on the tax books, than the lists of the overseers of roads, as above stated. ” ,

We have held in Leachman v. Dougherty, 81 Ill. 324, and in Peoria, Decatur and Evansville Railroad Co. v. The Peoptle, 116 id. 232, that it was essential to the validity of the tax, that the tax should be levied by the commissioners of highways, and that they should give the supervisors of the townships a statement of the amount necessary to he raised, and the rate per cent '-of taxation, signed by the commissioners, or a majority of them, on or before Tuesday next preceding the annual September meeting of the board of supervisors, who shall cause the same to be submitted to said board for their action at such September meeting of said board, etc., as provided by section 120, chapter 121, of the Revised Statutes of 1874, page 932. But the court held, that although the tax was illegally extended, still, inasmuch as the extension was not objected to in the county court, the rendition of the judgment in that court is conclusive against the appellant, and its validity can not be inquired into in this proceeding. This ruling is predicated upon the seventh clause of section 224 of the amendment to the Revenue law, adopted in 1879, (Laws of -Í879, pp. 253, 254,) whereby it is provided, “that any judgment for the sale of real estate for delinquent taxes, rendered after the passage of this act, * * * shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such" judgment, and could have been presented as a defence to the application for such judgment in the court wherein the same was rendered; and as to all such questions the judgment itself shall be conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid, or the real estate was not liable to the tax or'assessment.” But the suit here is on the tax itself. It is for the amount of the tax due on forfeited property. Revenue act, sec. 232, chap. 120, (2 Starr & Curtiss,) p. 2105; The People v. Winhelman, 95 Ill. 412; Big-gins v. The People, 96 id. 381; The People v. Davis, 112 id. 272; Bowman v. The People, 114 id. 474. Necessarily, therefore, the first thing incumbent on the plaintiff is, to establish the levy of a valid tax, which, we have seen, has not been done in the present instance. Had the levy of a valid tax been established, the next step would have been to prove that it was due on forfeited property, and, for that purpose, the judgment would have been conclusive evidence.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.