Brown v. Hogle

30 Ill. 119

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Breese, J.

The question presented on this record was raised on a demurrer to the bill filed by the appellants against the appellees, in the Circuit Court of Iroquois county. The scope of the bill was to set aside and discharge a judgment rendered by the County Court against certain lands delinquent for the taxes of 1860, of which appellants and one of the appellees, Chamberlain, were tenants in common, on the ground of want of jurisdiction in the court to render the judgment at the term at which it was rendered; and also, to set aside the certificates of sale granted on the purchase of the same, and the tax receipt for the subsequent taxes paid by the purchaser for the year 1861, on those lands.

The substance of the complaint is, that the judgment against these lands was rendered at the July term, 1861, of the County Court, in pursuance of the notice of the collector, that he would apply at that term for a judgment, and that the tracts of land were not sold separately, or offered publicly to bidders, but that the collector, conducting the sale, permitted the appellants to select out of the list, these particular tracts of land, and sold the same to them for the taxes due upon them, to whom he granted the usual certificates of sale.

The averments in the bill on this point are, substantially, that the collector did not proceed to offer for sale, separately, each tract of land at public auction, as the statute requires, but, on the contrary, after the day appointed for the sale in the notice, the said tracts of land and each of them, together with a large portion of the lands in the delinquent list for that year, were, by the collector, continued from day to day, and were not offered in their order, for sale, but the collector allowed Willard and Hogle to go before him and designate and select said tracts of land, and each of them, and request the sale thereof, and the collector then and there struck off and sold these pieces of land to said Willard and Hogle at their particular request, and for their benefit respectively, without regard to the order in which they were sold, and without regard to a fair competition in persons bidding upon the land; and thereby a fair competition in the bidding upon these tracts of land, and each of them, was prevented, contrary to the statute in such case made and provided.

Willard assigned his interest to Hogle in his certificate of purchase.

The bill also charges that Hogle and Chamberlain are fraudulently intending to perfect a title to these lands in Hogle by virtue of their certificates and judgment, and are intending that the deed which may be made in pursuance of the certificate shall enure to their joint benefit, in order to wrong and defraud* complainants; and they complain that this judgment and tax certificate are an apparent lien upon these lands and a cloud upon their title.

This demurrer is equivalent to an allegation by the appellees, that, admitting the facts as stated in the bill to be true, they are insufficient to entitle the appellants to the relief they seek.

There are several claims to relief set up in the bill. First, that the judgment for taxes was void, being rendered at a term not appointed for that purpose. Second, that the conduct of the collector at the sale, in permitting the purchasers to select out these particular tracts on which to bid, there being no public offering, for competing bids, was illegal; and the fact that one of the appellees was a tenant in common with appellants in the lands, and confederating with his co-defendant to defraud the complainants of their rights in' the same, was fraudulent in itself.

It is a rule in equity proceedings, where the bill sets forth various claims to the interposition of the court, and the defendant files a general demurrer, the demurrer should be overruled, if any of the claims be proper for its jurisdiction ; and a demurrer to the whole of a bill containing some matters relievable, and others not, will be bad, unless it be for multifariousness.

If any substantial and essential part of a complaint is within the jurisdiction of a court of equity, a demurrer to the whole bill for want of jurisdiction, cannot be sustained, and when a charge of fraud is distinctly made in the bill, such charge ought to be met by an answer. By this demurrer it is admitted, and of itself might justify a decree as prayed for.

The facts being admitted by the demurrer, what is the law of the case ? It is contended by the parties, that the county of Iroquois was, at the time of the levy of the tax, the rendition of the judgment, and the sale of the land, acting under the township organization, and all the proceedings had in the premises, were under, and in virtue of the township organization law of this State. At the session of the General Assembly of 1861, an act was passed, entitled “An act to postpone the collection of the revenue for 1860.” (Session Laws, 168.) Approved Feb. 14, 1861.

By the first section of this act, it is provided, in counties acting under township organization, that the time for the return by the township collectors of the warrants issued for the collection of taxes for the year 1860, shall be extended until the loth day of April next; and until that time, township collectors shall possess all the powers to enforce the payment and collection of taxes, which they could exercise before the return day of their respective warrants, by the laws in force at the time the warrants issued; and in all such counties, the county treasurers shall apply for judgments against delinquent lands, at the June term of the County Court of their respective counties, and the publication of notices and forms of proceeding, in relation to obtaining judgment, and the sale of lands in pursuance thereof, shall be in all respects the same, except as to the change of time as above provided, as now required by law; and county treasurers, in such counties, shall mate final settlement with the auditor as now required, on or before the 10th day of July next. This act had a limited effect and a temporary operation and existence only, not being designed to change the general law for the collection of the revenue, except for the year specified. Sec. 4, page 169.

The first position assumed by the defendants is, that this act is amendatory of former acts, as to the time of collecting taxes, making returns, etc., and is directory only, at the same time admitting, that under and by virtue of this act, taken by itself, applications for judgments against lands for delinquent taxes must be applied for at the June term. They insist, however, that in construing this statute, other statutes of which this is amendatory, are to be taken into consideration, and construed with it. It is a well established principle, that several acts, in pari materia, and relating to the same subject, are to be taken together, and considered in the construction of them, for the reason, that they are regarded as having one object in view, and as acting on one system. In doubtful cases, courts should compare all parts of a statute, and different statutes, in pari materia, to ascertain the intention of the legislature. But when a law is plain and unambiguous, the legislature must be intended to mean what they have plainly expressed, and in such case there is no room for construction.

The act of 1861 does not, by its title, purport to be an amendatory act, but it is expressly declared, in the act itself, that it shall not be deemed or taken to change the general revenue act. It was for a special purpose, to meet a special exigency, and must stand by itself, and be construed by itself. There are no ambiguous terms, or words of doubtful import in it, and, therefore, no room for construction.

Before the enactment of this law, the township collectors were required to return their warrants and make a settlement with the treasurer, on or before the 15th of February of each year; and all lands on which the taxes remained unpaid on the 15th of March, of each year, were declared delinquent, and were to be sold on the second Monday of May, on the judgment to be obtained at the May term. If, for any cause, the County Court could not be held at the term at which notice was given that judgment would be demanded, then the cause stood continued until the next term, and judgment could be rendered at the term to which the cause was continued. It was to change this time, and this only, that the act of 1861 was passed, and therefore, to that extent, must stand by itself, no aid being derivable from any other act, because there is none other on the same subject, enacted for the same purpose.

It is clear that the only act in force, on this special subject— the collection of the revenue for 1860—is this act of eighteen hundred and sixty-one, so far as the time is concerned. That other provisions of the acts of 1853 and 1855, not affecting the time of returning delinquent lands, could be taken into consideration, in construing this act, may be doubted, as this is a special act for a special purpose.

We are inclined to think that notice of the application for a judgment, and the application itself, must be made to the June term, the language of the law being peremptory—“ shall apply.” The term is fixed by law, and the design is, that all persons owning lands in the county, looking to the law for their rights, may know, certainly, when the application will be made, and make such defense as the law entitles them to make, and show cause, if they can, why judgment should not be rendered against their lands. If this rested in the discretion of the collector, and the people interested are to derive their knowledge of the term at which the application will be made, solely from the collector’s notice, much embarrassment and loss might occur, as those notices are not so widely diffused as the law itself. Besides, the same law requires that the county treasurers shall make their settlement with the auditor on or before the tenth of July, which would be impossible if the judgment was entered at the July term.

In Spellman v. Curtenius, 12 Ill. 409, this court said, to give the court jurisdiction it is essential that the collector should make a report, and give notice of the application for judgment, substantially as required by the statute.

The case of Marsh v. Chesnut, 14 Ill. 224, is strongly in support of the view we have taken of this case. In that case the law made it the duty of the .assessor to complete the assessment, and return it to the clerk of the County Commissioners’ Court, on or before the first day of May, and it authorized parties interested, to apply at the ensuing June term of that court, for the purpose of having the valuation of their property reduced. This requisition of the statute, the court say, is clearly imperative. The courts have no power to declare it directory merely. Such a decision would virtually deprive a party of the protection which the legislature designed to afford him. This direction to the assessor was intended to be compulsory, and a failure by him to comply with it, renders the assessment invalid as against the owner of the land. The court further say, what has often been said, “ It is a sound and inflexible rule of law, that when special proceedings are authorized by statute, by which the estate of one man may be divested, and transferred to another, every material provision of the statute must be complied with. The owner has a right to insist upon a strict performance of all the material requirements, especially of those designed for his security, and the non-observance of which, may operate to his prejudice. On this principle alone, the direction to the assessor to make his return by a given day is compulsory, and its performance is indispensable to the validity of the assessment.”

If then it was compulsory on the collector to made his return to the June term, an application at any other term would not suífice, and as nothing can -be intended in favor of such proceedings, it would seem to follow, that the County Court at the July term had no jurisdiction of this application, the notice not having been given to the June term, and the judgment rendered thereon would be void and impeachable, -collaterally, in any action.

We have been referred to several cases by the defendants’ counsel, as supporting his view, that the act is directory only, the strongest of which we will notice. It is the case of The People v. Allen, 6 Wend. 486. The militia law of New York made it the duty of the commanding officer of a brigade, to appoint a brigade court martial on or before the first day of June in each year. The question presented was, could this power be exercised after the first day of June ? The court in the decision of this question laid down the general rule to be, that when a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of time was intended as a limitation of the power of the officer. In this case there was nothing in the nature of the power showing that it might not be as effectually exercised after the limit of June as before ; and as the act giving it contained no prohibition to exercise it after that period, the re-naming of that day was a mere direction to the officer in relation to the manner of executing his duty; there was nothing in the nature of the power given, or in the manner of giving it, that justified the inference that the time was mentioned as a limitation. The ground on which this decision is placed, and so in the other cases cited, is quite different, we think, from that on which this should be placed. Here there is something in the nature of the power given to the collector, rendering it necessary he should consider the law peremptory. Persons interested had a right to know, to a certainty, at what particular time they would be called on to make objection to the judgment, and thus save costs and loss. The county treasurers were required to make their final settlement with the auditor on or before the tenth of July, which they could not, by any possibility do, if the application were made at the July term. These are sufficient considerations, coupled with the language used by the legislature, for holding the law peremptory as to the term of the court.

We think the correct principle is, that when the objects contemplated by the legislature cannot be carried into effect by any other construction, then the time prescribed should be considered as imperative. The objects of this act were, to give the owners of land time in which to pay their taxes, or rather, to give to the collectors further time to make collections, the owners being notified by the act, of the time at which judgment would be applied for against the delinquent lands, and to give the county treasurers time to make their final settlement with the auditor by a certain day, neither of which objects could be accomplished without holding this direction of the act to be peremptory.

It is upon this principle the case of Marsh v. Chesnut, supra, was decided, and also the case of the Thames Manufacturing Company v. Lathrop, 1 Conn. 555, to which the court referred with approbation.

This opinion has no application to the provisions of the general revenue law, but to this special act only. If, however, these views are not correct, then the judgment would be binding and conclusive until reversed, and no relief could be had in chancery, but the sale under the judgment is open to the scrutiny of this court, by this bill, on the ground of the fraudulent proceedings of the collector, and these defendants.

They admit the charge as made, that they did select out these lands from the delinquent list, and, without any public bidding, were permitted to purchase them for the taxes due upon them, and that the defendant, Chamberlain, was a tenant in common with the complainants in the land, and was colluding with the other defendant, Hogle, to get the title in themselves in fraud-of the rights of complainants. We have no hesitation in saying that it is a fraud for one tenant in common to permit the land held in common with others, to be sold for taxes, and he himself become the purchaser for his own exclusive benefit. It was a fraud also in making the sale as admitted.

By the law, it is made the duty of the treasurer to attend at the court-house on the day specified in the notice for the sale of delinquent lands, and there proceed, between certain hours, to offer for sale, separately, each tract of land in the delinquent list. The person at such sale offering to pay the taxes and costs charged on each tract or lot for the least quantity thereof, shall be the purchaser of such quantity, which shall be taken from the east side of such tract. It was evidently the design of the legislature, by these requirements, that the treasurer should sell the delinquent lands publicly, selling no more than should suffice to pay the taxes and costs, and for this purpose a fair competition should be allowed, in nowise restricted, the object being, not to injure the owner by depriving him of his land, but to get the taxes and costs at the least possible loss to the owner. The object of the notice of the sale, is to invite bidders and excite competition. It is admitted that the sale was not conducted according to the statute, but that the purchasers, Willard and Hogle, were permitted to select out these particular tracts of land, and become the purchasers of the whole, for the trifling sum for which they were incumbered. This is contrary to equity and good conscience, and a fraud upon the rights of the complainants.

The certificates of sale and purchase held by the defendant Hogle, being fair on their face, will entitle him to a deed, when the time arrives, which might operate injuriously to the complainants, by clouding their title to the land, and drive them to the necessity of redeeming the land, before they can be in a position to question the validity of such deed, and the validity of the judgment and sale, in any suit at law. The defendant Hogle, therefore, will be required to surrender the certificates of sale of these tracts of land for cancellation, and will be enjoined from asserting any right under them, or either of them, to a deed for the said lands. The taxes he has paid for 1861 were paid by him voluntarily, and he has no claim on the complainants to be reimbursed, he being an active party to the illegal proceedings under which he acquired the certificates of sale, and placed himself, knowingly, in his present position. The decree dismissing the bill is reversed, and the cause remanded, with leave to put in an answer.

Decree reversed.