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People Ex Rel. Masters v. Buchar

JULY 2, 1962.

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. FRANK H. MASTERS, JR., STATE'S ATTORNEY IN AND FOR WILL COUNTY, ILLINOIS, PETITIONER-APPELLEE,

v.

ROBERT R. BUCHAR AND GEORGE E. SANGMEISTER, RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of Will County; the Hon. VICTOR N. CARDOSI, Judge, presiding. Reversed.

MCNEAL, J.

The People of the State of Illinois on the relation of the State's Attorney of Will County filed a petition in the Circuit Court of Will County against the respondents, Robert R. Buchar and George E. Sangmeister, for a writ of mandamus. Petitioner alleged that respondents were justices of the peace of the Second Justice District in Will County; that on June 8, 1961, the State's Attorney tendered twenty-five cases at law to each of the justices for docketing and issuance of summons; that the cases were actions in debt for the collection of delinquent personal property taxes due from several named defendants, and were tendered in the name of the People of the State of Illinois ex rel. Will County Board of Supervisors; and that the justices refused to docket the cases and refused to issue summons against the defendants named.

In their answer respondents admitted all allegations in the petition and alleged that they are without jurisdiction and that there is no basis in law for instituting the type of suits proposed by the State's Attorney, in justice courts. The cause was heard on the petition and answer and stipulated facts. According to the stipulation the amount claimed in each case did not exceed $1000 and all of the delinquent taxpayers appear to be residents of Will County. The trial court found and adjudged that respondents have jurisdiction over delinquent personal property tax cases involving amounts within their statutory jurisdictional limits. The court granted the petition and ordered issuance of a writ of mandamus directing and commanding the justices to docket and hear any and all such delinquent personal property tax cases and to issue summons in each case so tendered by the State's Attorney. Respondents appealed.

Upon careful consideration of appellants' and appellee's briefs and arguments, we concluded that the respondent-justices had no jurisdiction in proceedings for collection of taxes, and reversed the judgment of the circuit court. The State's Attorney of Will County then filed a petition for rehearing and the State's Attorney of Cook County and the State's Attorney of Macon County filed petitions for leave to appear as amicus curiae. All of these petitions were granted.

[2-4] Appellants answered the petition for rehearing and pending decision thereon the Attorney General of Illinois filed a motion and suggestions that "this Court vacate its judgment and opinion and transfer this case to the Supreme Court of Illinois, this court having decided a constitutional question and this case being one that involves the public revenue." The Attorney General refers to sections 75 and 86 of the Civil Practice Act. Section 75 requires that appeals be taken directly to the Supreme Court in all cases in which construction of the constitution is involved, and section 86 imposes a duty upon us to transfer to the proper court any appeal wrongly appealed to this court. The General contends that our want of jurisdiction may be urged at any time and cannot be waived. With these references and contentions we fully agree.

The Attorney General also contends that "it suffices for the exclusive jurisdiction of the Supreme Court of Illinois of the appellate review that the case is one `relating' to revenue. It is not necessary that the suit be brought for and in that sense directly `involve' the public revenue. It is sufficient that the case is one `relating to revenue.'" To the contrary the Supreme Court said in People v. Village of Midlothian, 370 Ill. 223, 225, 18 N.E.2d 233: "We have definitely held that in order to give this court jurisdiction of a direct appeal the cause must directly relate to the revenue and not merely incidentally or remotely. . . . Our original jurisdiction in mandamus proceedings does not change the rule. . . . The cause here is not between a taxing body and anyone from whom the tax is demanded . . . and the cause is transferred to the Appellate Court." The General refers to People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d 477, 176 N.E.2d 889, as authority for the proposition that a writ of mandamus concerning the assessment of taxes supports a direct appeal to the Supreme Court even though a judgment will not impose any tax on any party to the suit. In that case it appears that the Coal Company was an Illinois corporation and responsible to Director of Revenue Isaacs for collection of retailers' occupational taxes, that the Court took jurisdiction because the revenue and the constitutionality of statutes were involved, and that the Court expressly refrained from remanding the cause for issuance of a writ of mandamus. The decision in the Holland Coal Company case in no way affects the Court's definite holding in the Midlothian case.

[5-8] In general, before the Supreme Court will take jurisdiction of a constitutional question, it must appear that the question was urged and ruled on in the trial court, and that such ruling has been preserved in the record. But where the judgment of an Appellate Court raises a constitutional question for the first time, the Supreme Court has jurisdiction to review the case. Dinoffria v. Brotherhood of Teamsters, 399 Ill. 304, 306, 77 N.E.2d 661. However "construction of the constitution" does not include the mere presence of constitutional questions, or violation of constitutional provisions, or review of propositions already settled, or construction of a constitutional provision whose main lines have already been drawn (Fulford v. O'Connor, 3 Ill.2d 490, 494, 121 N.E.2d 767), nor questions suggested by the reasons which may have led an Appellate Court to its decision. Biagi v. O'Connor, 18 Ill.2d 238, 240, 163 N.E.2d 461; Kaye v. Kremer, 20 Ill.2d 148, 151, 169 N.E.2d 357. Further, it is well settled that unless the question is fairly debatable, the Supreme Court will not assume jurisdiction on the ground that a constitutional question is involved. Seno v. Franke, 20 Ill.2d 70, 74, 169 N.E.2d 335; Betts v. Village of Calumet Park, 20 Ill.2d 524, 525, 170 N.E.2d 563.

In our opinion the "main lines" of any constitutional provision involved here have already been drawn. This appeal presents no fairly debatable question concerning the construction of any such provision, and none has been suggested by either the Attorney General or any of the State's Attorneys appearing in this court. This case does not directly relate to the revenue, as defined by the Supreme Court in the Midlothian case. Tempting as the inclination may be to transfer this case to the Supreme Court rather than to decide it, we have no authority to do so unless we find that the case was wrongly appealed to this court or that our judgment involves construction of the constitution. We cannot so find. The Attorney General's motion to transfer is denied and disposition of this appeal on its merits follows.

Justices of the peace in this State have only limited jurisdiction. They have and can exercise no powers other than those conferred by statute, and if they assume jurisdiction in cases not so authorized, their acts are null and void. White v. Wagar, 185 Ill. 195, 201, 57 N.E. 26. All acts creating courts of limited jurisdiction are to be strictly construed, and the powers of such courts will not be extended by implication further than is necessary for the exercise of the jurisdiction expressly conferred upon them. Cox v. Spurgin, 210 Ill. 398, 402, 71 N.E. 456.

The State's Attorney of Will County contends that respondents are empowered to exercise jurisdiction over the tendered cases by the following portions of section 1, Article II of "An Act to revise the law in relation to justices of the peace and constables," approved June 26, 1895, as amended (Ill Rev Stats 1959, c 79, § 16):

"Justices of the peace have jurisdiction in their respective counties in the following actions, when the amount claimed does not exceed $1000. . . .

Sixth — For damages for fraud in the sale, purchase or exchange or personal property, and where the action of debt or assumpsit lies. . . .

Tenth — By and against incorporated towns, cities, village(s) or other municipal corporations, which if brought by an individual, might be brought before a justice of the peace. . . ."

It has long been held that a delinquent personal property tax is a personal liability which can be collected in an action of debt. People v. Holmstrom, 8 Ill.2d 401, 406, 134 N.E.2d 246; People v. Chicago & N.W. Ry. Co., 322 Ill. 150, 155, 152 NE 575. See also: People v. Calumet Steel Co., 355 Ill. 375, 189 NE 305; People v. Thompson, 295 Ill. 187, 129 N.E. 155. In People v. Dummer, 274 Ill. 637, 113 N.E. 934, the Supreme Court held that a suit for taxes is not an action on a contract express or implied, and therefore not within the jurisdiction of the municipal court of Chicago. At p 646 the Court referred to its earlier decisions holding that an action of debt is an appropriate remedy for collection of taxes on personal property, and to section 230 of the Revenue Act which then provided that the county board might institute an action of debt in the name of the People of the State of Illinois, in any court of competent jurisdiction, for the recovery of any personal property tax. From these decisions we conclude that debt is an appropriate form of action for collection of delinquent personal property taxes. In a suit before a justice, however, the action is what the proof makes it, regardless of the name ...


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