81 N.E.2d 201 | Ill. | 1948
This is an appeal from a judgment of the county court of St. Clair County entered in an action in which the county treasurer,ex officio county collector, applied for judgment and order of sale of real estate for delinquent taxes of 1944. Appellant filed written objections to various items of taxes, but the only one involved on this appeal is with reference to the levy for educational purposes by school district No. 189, St. Clair County. The objection is that there is an excessive levy of 1.118 per cent included in the 2.118 per cent rate extended for educational purposes. The legal rate which the board could levy without authorization for an increase by election was one per cent. Appellant contends that the remainder, or 1.118 per cent, represents the total percentage of increase purportedly authorized at three different elections held in 1915, in 1922 and 1929, respectively. One of appellant's objections is that the proposition as printed on the ballots as a part of said elections was stated in language so indefinite and uncertain that a voter could not determine the percentage of increase for which he was voting. Another *509 objection is that at the 1922 election the proposition printed on the ballot for an increase combined the proposal to increase both the educational rate and the building rate in one question, thereby depriving the voter of the opportunity to make a selection. It is also urged that the ballots at the 1922 and 1929 elections were in bad form in that they called for a vote of "for" or "against" instead of a "yes" or "no" vote, as was required by section 16 of the Ballot Act.
Objections similar to the ones filed here and questioning the sufficiency of the ballots used in elections where an increase of tax rate for school purposes had been authorized were considered in People ex rel. Pickerill v. New York Central Railroad Co.
Upon the trial it was stipulated that appellee made a primafacie case for judgment for the taxes to which objection was made. Appellant introduced in evidence in support of its objection the resolution of the board of education calling the election of April 17, 1915; the resolution *510 of the board of education calling the election of April 8, 1922, and the resolution calling the election of April 13, 1929. Also, appellant introduced in evidence a canvass of the returns of the election held April 17, 1915, the same for the returns of the election held April 8, 1922, and of the election held April 13, 1929, showing in each case the proposition to levy additional tax was carried. Also, appellant introduced a purported transcript of the record of a bond issue of the district in 1915. This transcript was not identified by anyone. It contained a paper headed "School Election Ballot," but this was not marked as a specimen ballot or a sample ballot. Louis Beasley, a former election clerk, when his attention was called to this ballot, testified that he had no independent recollection, outside of seeing the ballot, as to just what it purports to be but that he would say it was a ballot, or rather a sample ballot, used in the election on April 17, 1915.
William L. Heckert and Henry Albrecht, witnesses for appellant, testified that appellant's exhibit No. 11, taken from a transcript found among the files of the Mississippi Valley Trust Company of St. Louis, Missouri, was an official ballot of the type prepared for use at the election in April, 1922. They each testified, however, that they had no independent recollection of the ballots voted at the April, 1922, election, but only from refreshing their memory by looking at this exhibit could they testify.
Adrienne Pe Leate testified that she was employed at the board of election commissioners' office in East St. Louis and made a search for official ballots in that office for school district No. 189 for the school elections held in 1915, 1922 and 1929; that she found nothing in connection with the elections of 1915 and 1922. In connection with the 1929 election she found a bunch of papers which she identified as a scrapbook of newspaper notices of election and specimen ballots and other papers which have to do with the election of 1929. On page 125 of the scrapbook she *511 found what she testified was a specimen ballot used at the school board election on April 13, 1929. She had no personal knowledge as to this ballot or whether it was a specimen ballot that was used at that election. She said, "All I know is what I found in this book by looking at it and I know from looking at it, it is marked `Specimen Ballot.'"
John C. Reimann, witness for appellant, testified he was formerly employed in the office of board of election commissioners in East St. Louis and that he started the scrapbook to which reference was made. He further testified that he had no personal recollection and that he could not have a recollection of 17 years ago. Referring to the ballots used in the 1929 election he testified that he wouldn't be able to say that they had been destroyed and that "It is possible those ballots are still in the vault upstairs, at that time some things were kept in a room upstairs I wouldn't know." The record does not show that the vault referred to was ever searched.
Section 127 of the School Code (Ill. Rev. Stat. 1943, chap. 122, par. 136,) provides that the board of education has all the duties and power of boards of directors and is subject to the same limitations. Section 112 provides that the clerk of the board of directors shall keep in a punctual, orderly and reliable manner a record of the official acts of the board. (Ill. Rev. Stat. 1943, chap. 122, par. 120.) These sections of the school code are substantially the same in the above respect as sections 127 and 112, respectively, of the 1909 School Law, which was continued in the school law and was in full force and effect in 1915, 1922 and 1929.
The above section requiring the clerk to keep a record of the "official acts of the board" requires that a record be kept of the essential steps in levying a tax. (People ex rel. Toman v.Chicago Heights Terminal Transfer Railroad Co.
This court has often held that the officers charged with the keeping of the record of the action of taxing bodies may be permitted in the presence of the court to amend the record in accordance with the facts shown by the evidence (People ex rel.Coffman v. Illinois Central Railroad Co.
The record also shows that the transcript of the 1915 bond issue was not identified by anyone. The only showing as to the ballot was the copy found in this transcript and the evidence of one witness who testified that in his opinion it was the ballot used, although he had no independent *513
recollection about it. The transcript found among the files of the Mississippi Valley Trust Company of St. Louis contained a copy of a ballot. Two witnesses for appellant testified that this was an official ballot of the type prepared for use at the election in April, 1922, but that they had no independent recollection of the ballots voted at that election. As to the 1929 election, what appeared to be a specimen ballot was found in the scrapbook. One witness testified that he put it in the scrapbook at page 125, that it was a specimen ballot, but that he could not particularly have a recollection of 17 years ago or remember about this page. He further testified that he recommended they prepare two ballots and that the petition may have been amended or changed. Objection was made to the introduction of all of appellant's secondary evidence with reference to the ballots. The evidence was admitted subject to the objection and no ruling of the court was made as finally admitting or rejecting it. Assuming, however, that it was properly admitted, it falls far short of establishing that the ballots introduced were identical with those actually used at any of the three elections questioned. A record cannot be amended or supplied by the uncertain memory of witnesses, even of clerks or officers. People v. Commonwealth Edison Co.
It was the duty of the board of education to determine the amount necessary for educational purposes for the year 1944 and to certify such amount to the township treasurer; and it was the duty of the township treasurer to return such certificate to the county clerk on or before the first Tuesday in October, 1943. It was the duty of the county clerk to ascertain from such certificate and the equalized valuation of the taxable property in the district the rate necessary to raise the tax. (Ill. Rev. Stat. 1943, chap. 122, par. 213, sec. 190.) There is no evidence in *514 the record as to any certificate on file with the county clerk, and, in the absence of any showing whatever, it must be presumed that the county clerk had in his office a proper certificate from the board of education from which he arrived at the rate of 1.118 per cent over and above the statutory rate. Such certificate could have been based upon an election other than the ones questioned by appellant. It cannot be determined from any evidence in the record by what mathematical calculation the county clerk arrived at the rate of 2.118 per cent. In this respect, the evidence does not sustain the objection that the rate was excessive by 1.118 per cent.
This court said in People v. Chicago, Burlington and QuincyRailroad Co.
In People v. New York Central Railroad Co.
In People v. Wabash Railway Co.
Appellant has filed its objections under the provisions of section 194 of the Revenue Act of 1939, as amended, originally enacted in 1933. It provided for a refund of taxes paid under protest where objection to the tax is sustained. No prior act contained such provision. The effect of sustaining the contention of appellant would be that the act of 1933 permitted the contest of every election authorizing a special tax for school purposes, on the form of the ballot, when prior thereto no refund could have been had were appellant successful on its objection. It would seem the statute authorizing the payment of taxes under protest and the filing of objections contemplated objections to matters occurring after its enactment. The statute was not intended to relate back to question the validity of an election by which the special tax was authorized long prior to its enactment. *516
In the instant case, appellant has been paying taxes for a period of thirty years under the election of 1915 and for as much as fifteen years under the last of the elections questioned. The sole question raised is whether the ballot was in proper form to comply with the statute. No objection is made to the right to levy a tax for the schools by such elections, but the objection is made because it is said the officials did not observe the proper formalities in submitting the question to the voters.
The law of 1933 was enacted to promote fairness and justice in the administration of tax collections. State and municipal subdivisions may be estopped from taking positions which will result in injustice. (Melin v. Community Consolidated SchoolDist.
There is authority for holding that the doctrine of estoppel may be applied in a county court where objection to taxes is made on application for judgment against real estate. In the early case of Thatcher v. People ex rel. Johnson,
In Schnell v. City of Rock Island,
We take judicial notice of the fact that a large percentage of the taxes in St. Clair County is paid by railroads and other corporations, and it would disrupt the school system if, after the great period of delay disclosed in this case, and by such secondary evidence as was produced, it could be held that the basis of a tax and the acts of the officials levying it were invalidated. If the ballots actually used in the elections questioned were not in proper form, appellant is presumed to have known it all these years. For some reason know only to it, the sufficiency of the ballots has never before been questioned. It may be appellant feared during all these years that if these elections were held to be invalid others would have taken place in which a greater rate might have been authorized.
A number of authorities have been called to our attention holding that a judgment sustaining or overruling an *518 objection to a tax of a prior year is not an adjudication of the same question arising in a subsequent year, but most of these cases involved the administration and collection of taxes authorized by laws which were invalid but had not previously been questioned. We think the situation here is quite different. Here, for instance, it is not claimed the law under which the tax was levied and collected was invalid. The objection raises a question of fact aside from the law by contending a certain form of ballot was not used. This is quite a different matter from assailing the validity of a law. If a public body, such as a State or county, may be estopped when their action would create grave injustice, it would seem, with equal propriety, the doctrine should apply here, especially when the validity of no statute is involved.
There are other points argued which will not be necessary to discuss or pass upon. From a careful consideration of the entire record we are of the opinion that the county court correctly overruled the objection of appellant to the special tax levied for educational purposes and the judgment of the county court is affirmed.
Judgment affirmed.
Mr. CHIEF JUSTICE MURPHY, dissenting.