"We think it apparent, therefore, that the Legislature contemplated that one tax levy for the entire tax voted should be made and certified by the commissioners of highways to the town clerk, and that one certificate be made of such tax by the town clerk for the entire tax levy, and that annual levies and certificates are not contemplated by the statute."

that the tax to be levied by the commission- and leave little room for question or coners and certified to the town clerk and by struction. If the purpose and intent had him to the county clerk "is the amount of been that a separate levy should be made the tax voted, which in this case was a tax for each year of the period for which the of 30 cents on the $100 valuation for the tax was voted, the later act would not have period of three years." The court further complied with the former requirement that said there was no provision in the statute the tax be extended for the current year, the requiring the commissioners to make a levy further requirement that the tax be extendfor each year of the period for which the ed by the county clerk for each succeeding tax was authorized or for the town clerk to year as stated in the certificate filed with make a separate certificate each year to the him, and the requirement of section 111 that county clerk, and further said: the county clerk extend the tax "in each year for the number of years stated in such certificate." In this case, as we understand the record, no attempt was ever made to certify the tax levy for the period of five years, either to the town clerk or the county clerk. The decree of the circuit court enjoining the collection of the taxes for the year 1913 finds Section 3 of the act of 1883 became section and recites that no meeting, regular or spe110 of the act of 1913. As re-enacted it re- cial, of the commissioners of highways of quired, as we have seen, that the levy be the town was held for the purpose of levying certified by the commissioners direct to the the tax for that year. After the entry of that county clerk, who should cause the levy thus decree the commissioners held a special certified to him to be extended on the tax meeting and attempted to levy and certify books for the current year "and for each the tax for the remaining four years of the succeeding year, as stated in the certificate five-year period, but they filed no certificate so filed with him." The language in quota- of such levy with the county clerk as the tions is not found in the act of 1883, but was law then required, and the collection of the added by the re-enactment of 1913. The for- tax extended for the year 1914 was enjoined. mer act was not clear and explicit in this The next attempt to levy and certify the tax respect, and if the correctness of the con- was made by Benedict, sole commissioner of struction given it in People v. Illinois Cen-highways for the town, on the 17th day of tral Railroad Co., supra, was sufficiently August, 1915, and on the 7th day of Septemdoubtful to require or justify our again con-ber, 1915. In the first certificate filed by him sidering it, it seems clear the General As- with the county clerk he recited that he had sembly intended by the act of 1913 to make determined upon and levied the special tax it plain by the language used that its inten- at the rate of 70 cents on the $100 valuation was as this court held it to be in con- tion of the taxable property in the town for struing the act of 1883. In addition to re- the revenue year 1915. Said sole commisquiring the county clerk to extend the tax sioner also filed a similar certificate of levy certified to him "on the tax books for the with the county clerk, dated September 7, current year," which was the language of 1915. In each of said certificates the sole the act of 1883, the act of 1913 required him commissioner recited that the collection of to extend the tax "for each succeeding year, the tax for the year 1914 had been prevented as stated in the certificate so filed with him." by reason of erroneous proceedings, and askSection 111 of the act of 1913 is also differ-ed that it be extended in separate columns ent from section 4 of the act of 1883. Sec- on the tax books of 1915, but he made no tion 4 of the act of 1883 required the coun- certificate of the annual tax voted for the ty clerk to extend the special tax on the tax period of years for which the tax was aubooks for the state and county taxes in sep-thorized to be levied. The levy by the sole arate columns, as other taxes are extended. commissioner not having been made in the Section 111 of the act of 1913, which takes manner required by the statute, the extension the place of section 4 of the act of 1883, requires that the county clerk, in making out the tax books for state and county taxes, “shall in each year for the number of years stated in such certificate extend the special tax in separate columns," as other taxes are extended. The Legislature knew of the con'struction placed by this court upon the former act. That decision was filed in 1908, and the legislative body, in re-enacting the old statute in the act of 1913, used language evidently intended to make its intention plain

of the tax for the year 1915 and the placing of the tax attempted to be levied for the year 1914 upon the tax books did not authorize the county clerk to extend the tax for either of those years upon the tax books, and the collection of said taxes should have been enjoined, as prayed in the bill.

The decree of the circuit court is reversed, and the cause remanded, with directions to enter a decree as prayed in complainants' bill.

Reversed and remanded, with directions.

plied, when the amount claimed by plaintiff, ex-
clusive of costs, exceeds $1,000, a municipal
court had no jurisdiction of a suit in debt by the
state to recover personal property taxes in excess
Rev. St. 1915-16, c. 120), providing that the
of $1,000, despite Revenue Act, § 230 (Hurd's
debt in the name of the people in any court of
county board may institute suit in an action of
competent jurisdiction for the recovery of any
does not rest in contract.
personal property tax, since a claim for taxes

[Ed. Note.-For other cases, see Courts, Cent.
Dig. §§ 452, 458; Dec. Dig. 188(4).]
Appeal from Municipal Court of Chicago;
Ralph F. Robinson, Judge.

Suit by the People of the State of Illinois against W. F. Dummer. From a judgment against defendant, he appeals. Judgment reversed.

The term "implied contract" has been apWm. Annan Taylor and Scott, Bancroft, plied to a class of obligations created by law without regard to the assent of the party upon Martin & Stephens, all of Chicago, for appelwhom the obligation is imposed, on the ground lant. Maclay Hoyne, State's Atty., of Chicathat they are dictated by reason and justice, ob- go (Morris Schaeffer and Henry A. Berger, ligations which are not contract obligations in the true sense, but constructive contracts created both of Chicago, of counsel), for the People. by law, as where one has received money or its equivalent under such circumstances that in equity and in good conscience he ought not to retain it, in which case the owner may recover in an action in form ex contractu.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 4-6; Dec. Dig. 4.

For other definitions, see Words and Phrases, First and Second Series, Implied Contract.] 3. TAXATION 1-"TAXES."

Taxes are enforced contributions demanded by the sovereignty as burdens or charges on persons or property for public purposes.

CARTWRIGHT, J. The people of the state of Illinois, appellee, brought two suits in debt, as cases of the first class, in the municipal court of Chicago against W. F. Dum

mer, appellant, and filed statements of claim for taxes alleged to be due from the appellant on his personal property in the town of North Chicago. The cases were consolidated, and an amended statement filed, including taxes for the years 1907 to 1914, inclusive. The appellant's affidavit of merits set up various defenses against the claim, and the issue was tried by the court without a jury, resulting in a finding and judgment 4. DEBT, ACTION OF 1-MUNICIPAL COR- against appellant for $19,415.99 and costs, PORATIONS 633(2)-WHEN LIES.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1; Dec. Dig. 1.

For other definitions, see Words and Phrases, First and Second Series, Tax.]

The action of debt lies for the recovery of a sum certain, whether arising by contract or imposed by law, and lies for the recovery of any liability where the sum is certain or is capable of being readily reduced to a certainty, being an appropriate action for the recovery of fines for the violation of a municipal ordinance.

[Ed. Note.-For other cases, see Debt, Action of, Cent. Dig. §§ 1-14; Dec. Dig. 1; Municipal Corporations, Cent. Dig. § 1391; Dec. Dig. 633(2).]

5. PENALTIES

16-RECOVERY-ACTION.

Where forfeitures or penalties are imposed, and no form of action is given, debt will lie, being a proper form of action to recover a penalty given by statute.

[Ed. Note.-For other cases, see Penalties, Cent. Dig. §§ 13, 15, 16; Dec. Dig. 16.] 6. TAXATION 592-ASSUMPSIT FOR TAXESPLEADING.

Where a statute provides that an action may be brought for the collection of taxes, and impliedly that such action shall be in form assumpsit, it is sufficient, in charging liability, to state the facts which created liability, without alleging a promise to pay.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1205-1213; Dec. Dig. 592.] 7. COURTS 188(4)-MUNICIPAL COURTS-JURISDICTION OF COURT-COLLECTION OF TAX. Under Municipal Court Act, § 2 (Hurd's Rev. St. 1915-16, c. 37, § 265), defining actions of the first class in the municipal court of Chicago as all actions on contracts express or im

from which he appealed.

It is assigned for error that the municipal court had no jurisdiction of the cause of action, and that the judgment is void for that reason.

By the act creating the municipal court, jurisdiction was conferred upon it in six classes of cases. Cases of the first class are those in which the amount claimed by the plaintiff exceeds $1,000, and if the municipal court had jurisdiction of this case it was by virtue of its being a case of that class. Such cases are defined by section 2 of the statute

as follows:

"Cases to be designated and hereinafter referred to as cases of the first class, which shall include: (a) All actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars $1,000; (b) all actions for the recovery of personal property when the value of the property sought to be recovered as claimed by the plaintiff exceeds one thousand dollars ($1,000); and (c) all actions for the recovery of damages for the conversion of personal property, and actions for the recovery of damages for injuries to personal property, when the amount of damages sought to be recovered, as claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000)." Hurd's Rev. St. 1915-16, c. 37, § 265.

This action not being for the recovery of personal property or for the recovery of dam

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe

ages for the conversion of or injuries to personal property, it did not come under division (b) or (c), and could only come, if at all, under division (a), conferring jurisdiction in actions on contracts, express or implied, and that is the claim of counsel for appellee.

Such contracts are contracts merely in the sense that a remedy is by the statutory remedy of assumpsit and are created and governed by the principles of equity.

is governed by rules of equity, although the money demanded may be recovered in an action in form ex contractu. The liability exists from an implication of law arising from the facts and circumstances, independent of an agreement, or even a presumed intention [1, 2] A contract is an agreement between of the defendant. of the defendant. In those cases the idea of competent parties, upon a consideration suf- a contract is purely fictitious, since there ficient in law, to do or not to do a particu- are none of the elements of a contract preslar thing. 2 Blackstone's Com. 442; 2 Kent's ent, and the intention of the parties is entireCom. 449; 1 Parsons on Contracts, § 1. It ly disregarded. Board of Highway Com'rs v. may be express where the terms of the City of Bloomington, 253 Ill. 164, 97 N. E. agreement are declared by the parties in 280, Ann. Cas. 1913A, 471. Where a contract writing or verbally at the time it is entered is implied in fact, it results as a legal inferinto, and, of course, there is no express ence from the facts and circumstances, alpromise by a property owner involved in a though not formally stated in words, and the levy of taxes upon his property, and none difference between such a contract and an was claimed in this case. A contract may express contract is in the means of proof, be implied where an agreement in fact is whether by words or by conduct. In conpresumed from the acts of the parties, and tracts created by construction of law liabilithis is the proper meaning of an implied con- ty exists from an implication of the law tract. An illustration of such a contract is arising from facts and circumstances indewhere one performs services for another un-pendent of intention. 6 R. C. L. 558. der circumstances showing that they were not intended to be gratuitous and the services are accepted. An example of a contract implied in fact is found in Chudnovski v. Eckels, 232 Ill. 312, 83 N. E. 846, where the plaintiff had entered defendant's street car and paid her fare, from which the law recognized the existence of a contract of the defendant to carry her safely. The law presumes a contract of a common carrier to be answerable for the goods he carries or to exercise the degree of care declared by law by receiving as a common carrier a passenger to be carried for hire. Another case is Har-es is to be implied by the law, it must rety Bros. v. Polakow, 237 Ill. 559, 86 N. E. 1085, where the liability of the owner depended both upon the obligation imposed upon him by the statute and his acts. The only difference between an express contract and an implied contract in the proper sense is that in the former the parties arrive at an agreement by words, either verbal or written, while in the latter the agreement is arrived at by a consideration of their acts and conduct. 2 Page on Contracts, § 771. It is clear that there is no contract between the people and a taxpayer in that sense.

[4-7] As there is no express contract of the taxpayer to pay his taxes, and none is implied in fact, the question to be determined here is whether such contract is created by construction of law, regardless of an agreement or presumed intention, so as to come within the terms of the statute concerning jurisdiction of the municipal court. If any contract of the owner of property to pay tax.

1

sult from the existence of the duty to pay them, but the mere existence of the duty does not, of itself, raise any implied promise to perform it. It may be conceded that the property owner owes to the government the duty to pay taxes in order that the government may be able to perform its functions. In Rae v. Hulbert, 17 Ill. 572, the court had under consideration the statute providing that a defendant in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff, might set up the same and have [3] The term "implied contract" has also them allowed him upon the trial, and the been applied to a class of obligations which question was whether a judgment was a conare created by law without regard to the as- tract. The court said that in the statute sent of the party upon whom the obligation the words "contract" and "agreement" were is imposed, on the ground that they are dic-used in their ordinary sense, and not with tated by reason and justice. They are not the intention of embracing every imaginable contract obligations in the true sense, be- litigation upon a cause of action, and further: cause there is no agreement of the parties, but they are constructive contracts created by the law. A case of that kind is where ́one has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it, but it belongs to another. In such a case The mere existence of the duty to pay taxes the right of the plaintiff does not depend lawfully assessed is not different from any upon any principle of contract between him other duty owing to the government, the puband the defendant, but the right to recover | lic or individuals, and the law does not imply

"In one sense it is true that every member of society impliedly agrees to pay all judgments which may be regularly rendered against him, and, in the same sense, does he impliedly agree to make amends for all torts which he may com

mit."

a contract to do a thing merely because there | nature of a debt. The distinction between a debt is a duty to do it.

In determining whether the law will imply a contract of the property owner to pay taxes a consideration of the nature of taxation is important. A definition of taxes by Judge Cooley is as follows:

"Taxes are defined as being an enforced proportional contribution of persons and property levied by the authority of the state for the sup: port of the government and for all public needs." Cooley on Taxation, 1.

The power of taxation may be defined as the power inherent in the sovereign state to recover a contribution of money or other property, in accordance with some reasonable rule or apportionment, from the property or occupations within its jurisdiction for the purpose of defraying the public expenses. 2 Modern Am. Law, 391. In Wagner v. City of Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519, this court quoted and indorsed Judge Cooley's definition of taxes.

and a tax is that the one rests on a contract, and the other does not. A debt is a sum of money due by contract, express or implied, while a tax is a charge on person or property to raise money for public purposes and operates in in

vitum."

In Village of Charlotte v. Keon, 207 N. Y. 346, 100 N. E. 1116, 46 L. R. A. (N. S.) 135, Ann. Cas. 1914C, 338, where the statute provided that an action might be maintained as upon contract by a village to recover the amount of an unpaid tax, the court held that the defendant could not set up as a counterclaim any other cause of action on contract, for the reason that the obligation to pay a tax does not rest on contract, but is a statutory liability imposed upon all the inhabitants of the state, defined as taxable, to the end that they may contribute their just share to the expense of the government. It was held that the Legislature did not change the nature of the obligation by providing that a village might collect the tax in an ac

nature of the tax were not changed thereby.

In Peirce v. City of Boston, 44 Mass. (3 Metc.) 520, the court, in interpreting a statute providing that no demand should be set off unless it was founded upon a judgment or a contract, and that the contract might be either express or implied, said:

Taxes being enforced contributions demand-tion as upon contract, and the quality and ed by the sovereignty as burdens or charges on persons or property for public purposes, the courts have universally held that they are not debts, and there is no contract implied in law that the owner of the property will pay them. A claim for taxes is not a debt, and does not create the relation of debtor and creditor or rest upon a contract, express or implied. In Jack v. Weiennett, 115 Ill. 105, 3 N. E. 445, 56 Am. Rep. 129, the court, considering the question whether creditors, under an assignment in the insolvent laws, acquired vested rights in the assigned property so that it could not thereafter be taken for the payment of taxes levied before the assignment, said:

"Nor are taxes contracts between party and party, either express or implied; but they are the positive acts of the government through its various agents, binding upon the inhabitants, personal consent, individually, is not required." and to the making or enforcing of which their

In Wason v. Bigelow, 11 Colo. App. 120, 52 Pac. 636, which was a suit for the collection of personal property taxes, the defendant was entitled to have the suit tried in the county of his residence, unless it was an action on contract, which might be tried in the county in which the contract was to be performed. The court held that the duty to pay taxes did not arise by contract, and said: "But a tax is not founded on contract, either In Loeber v. Leininger, 175 Ill. 484, 51 N. express or implied, and no relation of debtor and creditor results from it." E. 703, the court said:

"If a claim for taxes is but an ordinary debt, creating the relation of debtor and creditor, the question must be answered in the affirmative; for all creditors, under the statutes relating to insolvency, must share pro rata under the assignment. But such a claim is not a debt, within that sense"-quoting from Cooley on Taxation, and citing other authorities.

"A tax is not a debt, in the ordinary sense of that term. It is an exaction or forced contribution from property demanded by the taxing power or sovereignty for the purpose of enabling the government to execute and discharge its functions."

In Cooley on Taxation, p. 13, it is said: "Taxes are not debts in the ordinary sense of that term, and their collection, in general, depends on the remedies which are given by statute for their enforcement. * * Taxes are not demands against which a set-off is admissible. Their assessment does not constitute a technical judgment, nor are they contracts between party and party, either express or implied."

The following statement is from the American and English Encyclopedia of Law, vol. 27 (2d Ed.) 580:

"A tax, in its essential characteristics, is almost universally held not to be a debt nor in the

In Crabtree v. Madden, 54 Fed. 426, 4 C. C. A. 408, the action was brought in the United States Court in the Indian Territory for the recovery of a tax, and the statute gave the court jurisdiction in cases on contract. The Circuit Court of Appeals said:

"Taxes are not debts. They do not rest upon contract, express or implied. They are imposed by the legislative authority without the consent and against the will of the persons taxed, to maintain the government, protect the rights and privileges of its subjects, or to accomplish some authorized, special purpose. They do not draw interest, are not subject to set-off, and do not depend for their existence or enforcement upon the individual assent of the taxpayers."

A remedy by suit for the collection of taxes may be given by statute, either directly or by implication, and if no specific remedy is