People v. Davis

112 Ill. 272

• Court: Illinois Supreme Court
• Decided: September 27, 1884
• Status: Published

Opinion

Mr. Chief Justice Scholfield

delivered the opinion of the Court:

We see no cause to disturb this judgment. By section 1, chapter 120, of the Revised Statutes of 1874, entitled “Revenue,” moneys, credits, etc., and other personal property held, owned or controlled by persons residing in this State, are taxable. If the owner resides in the State, they are taxable at the residence of the owner. (Ibid. sec. 7.) If the owner is a non-resident, and the moneys, credits, etc., and other personal property, are under the control of an agent or attorney, they shall be listed in the same place where such agent or attorney is required to list his own moneys and credits, and other personal property. (Secs. 6, 19.) But where the owner is a non-resident, before he can be taxed here it must be shown that his property is actually at the place where it is assessed; and it is not enough to show, merely, that an indebtedness to him, evidenced by a promissory note which may be in his hands, was negotiated through an agent at that place. Goldgart v. People ex rel. 106 Ill. 25.

The primary liability of the defendant, here, rests upon the fact that at the date at which his liability is claimed to commence, he was the owner of moneys, credits or other personal property, and resided there, or such moneys, credits or other personal property were under the control of an agent or attorney residing there; and such control must be an actual control at that place. (Goldgart v. People, supra.) Whether property is legally taxable at a particular place, is a question of law, and not' of fact; and the pleader seeking to charge one with liability because his property is taxable at a particular place, must, therefore, state the facts from which such liability results, as a conclusion of law. This is elementary, and has been often decided by this court.

There is no averment in the first count that the defendant resided at the place where the property was assessed, at the date of the assessment, nor is there any averment therein that the property was, at that date, under the actual control of an agent or attorney at that place. For aught that appears therein, the evidences of indebtedness, and other personal property, may, at that time, actually have been elsewhere. There is no averment in the second count either that the defendant resided at the place where the property was assessed, at the date of the assessment, or that it was, at that time, in the actual coiitrol of an agent or attorney at that place. The' averment that the property was liable to taxation at that place, is simply the statement of a legal conclusion. The facts from which that conclusion is claimed to result, should have been stated.

To avoid misapprehension hereafter, we may state this is not a suit to recover a forfeiture. The action is to recover a tax due, which has been unavailingly attempted to be col-' leeted by forfeiture and sale of property. The right to recover depends upon the fact that a valid tax is delinquent, and not upon the regularity of the steps to enforce its payment through forfeiture and sale. The remedy is cumulative, and is only barred by a prior judgment when it is shown to have been satisfied.

The judgment is affirmed.

Judgment affirmed.