| Ill. | Jun 21, 1881
delivered the opinion of the Court:
The property on which the tax in controversy in this case was levied, was, for the year the tax was imposed, subjected to a double assessment. The railroad company made out and returned a list of taxable property according to law, embracing this property as being used for tracks, side-tracks, and for buildings in connection with the road, and for railroad purposes. This return was reported to the board of equalization, and it assessed the property, and the assessment was returned to the county clerk, who extended the tax, and it was paid by the company to the collector. The local assessor placed it on his books, assessed it, and returned his assessment list to the county clerk, who extended the tax on the collector’s books, and the tax having become delinquent, the collector applied to the county court for a judgment for the sale of the land for the payment of the taxes thereon. The company resisted, and filed objections to the rendition of judgment, upon the ground that it had been returned assessed as railroad track, and the tax had been paid, but the court overruled the objection, and rendered judgment that the land be sold to pay the tax.
In the case of the Chicago and Alton Railroad Co. v. The People. 98 Ill. 350" date_filed="1881-03-21" court="Ill." case_name="Chicago & Alton Railroad v. People ex rel. Dennison">98 Ill. 350, there was an assessment of a tract of ground occupied by railroad tracks, switches, turn-outs and depots, shops, and other buildings used in the business of the road, like this. It was assessed by the board of equalization as railroad track, and like this it was assessed as land by the local assessor. The contest was as to which was the legal and valid assessment, and it was held that the law required the land to be assessed as railroad track, and the assessment by the local assessor was unauthorized, and the collection of the tax extended on that assessment could not be enforced. The material facts of the two cases are almost similar, in every particular. That case must control this.
But even if that ease is not like this in all of its particulars, as it is claimed in this that a portion of the land is vacant, this does not describe the portion not covered by the tracks, switches and railroad buildings. The description adopted by the local assessor, it is not denied, embraces all of the land owned by the company, and it seems to be conceded that half or more of the lot is covered with tracks, switches and railroad buildings. That, under that case, is railroad track, and was properly assessed by the board of equalization as such. To that extent it was properly returned by the road, and it was properly assessed. If any portion is not used as railroad track, and is assessable by the local assessor, he should so describe it as not to embrace any portion of that which is assessable as track. He has no right to assess it so as to make a double assessment of any portion of the property. Even if a portion of this tract was not railroad track, and assessable as such, the court had no means of separating the portions so as to render judgment against such as was not properly assessed as track, nor could the court apportion [the tax so as to render judgment for the proper amount. The court, under the constitution, has no power to make an assessment for taxation, and to apportion this tax would require an assessment and valuation. \N"or could the court render judgment against that portion upon which the tax was legally assessed and properly paid.
The judgment will be reversed.
Judgment reversed.