97 Ill. App. 47 | Ill. App. Ct. | 1901
delivered the opinion of the court.
Action in debt by appellant, on complaint of the county board, against appellee, to recover the penalties provided by the fifty-sixth section of the revenue act of March 30, 1872, for giving a false schedule or statement required by the act, and for a failure and refusal to deliver to the assessor, when called on for that purpose, a list of the taxable personal property he was required to list under said act. The declaration contained fourteen counts, two for each of the years 1898, ’97, ’96, ’95, ’94, ’93 and ’90, one in each year for a false schedule, and one for a failure to give any schedule. A demurrer was interposed, both general and special, to the declaration, and the court sustained the demurrer, and the plaintiff abiding by the declaration, final judgment was given in bar of the action, to reverse which this appeal is brought, and the action of the court in so sustaining the demurrer, and giving such judgment, is assigned and argued to effect such reversal. .
In support of the judgment it is first insisted that the act of February, 1898, repealed section 56 of the act of 1872, under the provisions of which this suit is brought and prosecuted. We are of the opinion, however, that the provisions of section 4 of chapter 131, Revised Statutes, saves this prosecution, notwithstanding the act of 1898, repealing the .former provision in section 56, which provides that no law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceedings. The case of Mix v. I. C. R. R. Co., 116 Ill. 508, cited and relied upon by appellee, as prescribing a different rule, is not in point, for the reason that the repealing statute in that case contained the provision that it should govern all cases, whether occurring before or after such statute should take effect, and no act or part of act inconsistent with it, should in any way apply. Such provision, or anything similar to it, is absent from the repealing act of 1898. Therefore we conclude the provisions of section 56 of the act of 1872, so far as they had been violated previous to the taking effect of the act of 1898, are enforceable under the provisions of section 4 of chapter 131, before referred to.
It is contended on the part of appellee that all of the counts of the declaration before 1898 and 1897, are invalid because they are barred by the statute of limitations. Inasmuch as the court sustained the demurrer to the whole declaration this point does not necessarily come before us for decision, but it has been stipulated by both sides, in their argument, that the technicalities by which the point might properly be raised in this court, are waived, and it is agreed and requested by both parties, in view of other ■ pending suits in the trial court, that this question be submitted to this court for its decision, and under such stipulation we shall give the question our best consideration.
It is first argued by counsel for appellant that limitations do not run against the people in this case. Whatever may be the rule in other jurisdictions in respect to this question, we think in this State it depends upon the proper construction to be given to the legislation upon this subject. It is conceded that if the suit was in the name of a private person, that the two years limitation contained in section 14, chapter 83, Revised Statutes, would apply, which provides that actions for a statutory penalty shall be commenced within two years next after the cause of action accrued. But because this suit is in the name of the people, there is no limitation, it is said. It may be an open question whether the suit is necessarily in the name of the people, when the statute provides that it shall be in the name of the people, on complaint of any person. While the suit is on complaint of the County of Pike, a component part of the State government — and wejdo not deny its right in this respect — still that fact does not in any wise lessen the broad right of the statute for. any individual citizen to bring the suit upon his complaint, and in such a case it would hardly be contended the statute of limitations would not be a good defense. The statute being of a highly penal nature, it must be strictly construed, and we are disposed to hold that if the people, in their sovereign capacity, will prosecute the suit, they must occupy the position permitted to an individual citizen, and the State must therefore accept the position on the same terms as an individual person. Moreover, if it is insisted that the people in their sovereign capacity are alone prosecuting this suit, and we doubt if this position could be maintained, then the question arises whether or not section 4, division 4 of the criminal code does not apply, which provides that all prosecutions by indictment, or otherwise, for misdemeanors, or for any fine or forfeiture under any penal statute, shall be commenced within one year and six months from the time of committing the offense or incurring the fine or forfeiture except as otherwise provided by law, followed in the next section by the provision that the period the party was not usually or publicly resident within the. State shall not be included in the time of limitation. So' Ave conclude that any form of prosecution, or action, for a statutory penalty, Avhether by the State in its so\Tereign capacity, or by any lesser division of the State government, or by an individual person, is by the clear intent of the legislature, subject to the limitation provided by statute.
The next question is Avhether, in an action of this nature the statute of limitations may be raised by a demurrer, or Avhether it must be specially pleaded. The decisions in this State are not in entire harmony upon this subject. The general rule is that the statute must be pleaded, so that the plaintiff may reply that the caséis within the exceptions of the statute. Burnap v. Wight, 14 Ill. 303. Again in Gebhart v. Adams, 23 Ill. 397, it was said, it, the statute of limitations, can not, by demurrer to the declaration, be used as a defense. In an action on a penal statute, to make the statute of limitations a bar, it must be specially pleaded. Under the general issue, the lapse of time might be given in evidence to defeat the action, as well as under the plea of the statute. In equity practice the rule of pleading requires, when the time of the statute is shoAvn to have run, that it be further shoAvn that some of the exceptions of the statute apply, or that the apparent bar be otherwise excused. It has also more recently been held at law that where the petition or declaration disclosed the proper facts, the question of the statute of limitations may be interposed by demurrer. People ex rel. v. Boyd, 132 Ill. 60. The decision in Gebhart v. Adams, supra, it seems to us is plainly inconsistent with itself, wherein it says that the statute must be specially pleaded to make it a bar, or it might be given in evidence under the general issue. The reason of the rule, as given in Burnap \T. Wight, supra, so that plaintiff may reply that the case is within the exceptions of the statute, is logical, and no doubt this is the true rule, subject to such exceptions as have been pointed out in the later decision of People v. Boyd, supra; where the declaration discloses the proper facts, the statute may be taken advantage of upon demurrer. That is, if the declaration shoAvs on its face that the time of the statute has run, and at the same time discloses that the case is not within the exceptions of the statute when applied to the particular cause of action stated in the declaration, then the question may be raised by demurrer. In other words, where the facts in the declaration sufficiently show that the cause of action is barred b\r the statute, and that none of the exceptions in the statute take it out of the bar, then the reason for the rule is gone, and no reason is perceived why the question may not be raised upon demurrer. We have already given our opinion that the two years statute of limitations applies to an action for a statutory penalty, such as this. What are the exceptions ? There is no pretense of a new promise, for the action is not founded upon a promise. Absence of the defendant from the State is inconsistent with the whole theory of the declaration, as likewise is fraudulent concealment, in view of the particular description of credits alleged in the declaration to have been omitted from the schedules. Hence we conclude that the question of the statute of limitations might be raised upon demurrer to all the counts except those for the years 1897 and 1898.
The remaining question for our decision is as to the sufficiency of the first four counts of the declaration. We think the credits alleged to have been omitted from the schedules were sufficiently described and their values given. The demurrer admits this. The serious objection to the counts, and, as we understand, the one most strenuously urged, is that they do not aver that the defendant resided in the town of Pittsfield, where it is claimed the schedules were due.
Relative to the counts for a false schedule it is only necessary to say that by executing and delivering a schedule at all, the defendant thereby admitted that he was subject to assessment in the town of Pittsfield. The counts for a failure and refusal to deliver a- schedule aver that defendant and Jacob Strauss constituted and composed a firm and partnership, then and there in the town of Pittsfield, doing business under the firm name and style of Strauss & Pro., and were by that firm name then commonly called, and had its principal office and place of business in said town of Pittsfield. Section 13 of the revenue act provides that the personal property of banks or bankers, brokers, stock-jobbers, insurance companies, hotels, livery stables, saloons, eating houses, merchants and manufacturers, ferries, mining companies, and companies not specially provided for in this act, shall be listed and assessed in the county, town, city, village or district where their business is carried on, except such property as shall be liable to assessment elsewhere, in the hands of agents. While there is no averment in the declaration that Strauss & Bro. constituted a company within the meaning of the section to which we have just referred, nor is the nature of their business stated so as to bring it specifically within the description of that section, yet Strauss & Bro. is, by the declaration, designated as a firm and partnership, and we are justified in giving to such descriptive words their ordinary significance. “ Firm,” is defined by Webster as the name, title, or style under which a company transacts business; a partnership of two or more persons; a commercial house; and the same author defines partnership as an alliance or association of persons for the prosecution of an undertaking or a business on a joint account; a company; a firm; a house. So that it will be perceived that firm and partnership are synonymous with company, and the averment of the declaration brings the defendant strictly within the provisions of section 13 of the statute, to which we have alluded, and by that section the credits of Strauss & Bro. should have been listed in the town of Pittsfield, where their business was carried on. If any or all of it was liable elsewhere in the hands of agents, this was a matter within there own knowledge, to be availed of in defense. It therefore follows from what we have said that the Circuit Court erred in sustaining the demurrer to the first four counts of the declaration, and for this error the judgment will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.
