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be at liberty to go in and be examined lying upon defendants' representations pro interesse suo,and that inquiry might that they had an ample capital, amimbe made what interest they had in the paired. At the expiration of the credit goods, chattels, debts, credits, rents and defendants sought an extension, and ofprofits mentioned in the order of the fered their notes ai thirty, sixty, and 29th of July.

ninety days, renewing their representaHeld, For the purpose of taking pos- tions as to unimpaired capital. On the session and protecting the business strength of these representations plainagainst creditors generally, I think the tiffs gave the extension and took the receiver was in possession, and it was notes The first note was paid. but bewrong to disturb him; and when the fore the maturity of the second, plainsheriff was informed of the appointment tiffs received notice to attend a meeting on the 5th of August he ought to have of defendants' creditors at which they been withdrawn.

were offered forty cents in composition I am of opinion that when an indi- of the indebtedness. vidual is named in the order he is en Plaintiffs declined the offer and titled to possession as from the date of brought immediate suit, and obtained the order, and is the officer of the court an order for defendanis'arrest, because from that time.

of fraud. On the trial the the two reI consider Mason as being in posses- maining notes were surrendered up for sion from the date of his appointinent, cancellation, and the papers on which and the case of the execution creditors the order of arrest had been granted consequently fails, and, as they might were put in evidence. Plaintiff's then have come to the court instead of tak- offered to show that the notes had been ing out the interpleader summons, they taken upon fraudulent representations must pay the costs.

as to defendants' solvency, but the offer Opinion by Malins, V. C.

was refused on the ground that there

was no allegation of fraud in the comTERMINATING CREDIT.

COM. plaint. Complaint was dismissed exPLAINT

cept as to amount of certain goods sold

after the notes were given. GEN'L TERM. SUPREME COURT, First

On appeal.
DEPT.

I'm. T. McRae for applts.
Claflin et al, applts. v. Tanssig et al,

Blumenstiel d Archer for reapts. respts.

Held, That the ruling thus made Decided March 31, 1876. Where sale is influenced by fraudulent tend credit, like any other agreement

The agreement to exrepresentations, even though on credit, it is unnecessary to allege fraud in could when presented as a defence, be complaint.

assailed for fraud. Seller may terminate the credit and Plaintiffs were not bound to anticisue on the debt at once.

pate the answer that the notes were not Appeal from judgment rendered at due, by averring that they were acceptcircuit.

ed by reason of fraudulent representaDuring the years 1873 &’74, plaintiffs tions. It it is well settled that, when sold goods to defendants on credit, re- a sale is influenced by fraudulent rep

was erroneous,

resentations, even if marked by a cred. United States for the Northern Disit which has not expired, it is unneces- trict of Illinois. sary to allege frand in the complaint This was a bill in equity seeking to (27 Barb., 652; 34 id., 89; 32 id., 322 ; restrain the collection of certain taxes 4 Keyes, 120). The presence of that upon the ground of illegality, erroneous element destroys the credit at the op assessments, inequity, and that the law tion of the seller, makes the debt due was unconstitutional. immediately if he so elect, and enables The act of the legislature of Illinois him to sue at once for its recovery upon of March 30, 1872, under which the an allegation of goods sold and deliver- taxes complained of were assessed, ed.

makes special provisions for the taxaAnd when the defense disclosed the tion of railroads and other corporations, agreement to extend, plaintiffs were not the main feature of which is the purbound by the rules of pleading to give pose of leaving to each county, city, notice that they would assail it on the and town the power of assessing for taxtrial.

ation what is properly local in the same It was the defendants' business to be manner that other similar property is prepared to sustain the agreement, if taxed in that municipality, and at the necessary, by evidence showing its bind- same time to subject to like taxation on ing force.

some fair basis that which is not in its Judgment reversed and new trial nature so clearly local, but which, by ordered.

reason of its being appurtenant or inOpinion by Brady, J.; Davis, P. J., cident to the railroad, should pay its and Daniels, J. concurring.

share to the state, and to all the counties, towns, and cities through which

any part of the road runs. The theory INJUNCTION AGAINST COLLECTION OF TAXES. EQUITY railroad track, its rolling stock, its fran

of the system is manifestly to treat the TAXATION. CORPORATION.

chise, and its capital as a unit for taxaU. S. SUPREME COURT.

tion, and to distribute the assessed value Isaac Taylor, Collector of Peoria of this unit according as the length of county, et al., applts., v. James F. Secor the road in each county, city, and town and William Tracy, respts.

bears to the whole length of the Decided April 24, 1876.

road. Neither illegality or irregularity in the

It provides, therefore, for three sepproceedings, nor error, or excess in arate valuations : the valuation, nor the hardship or 1. Of the real estate in each county, injustice of the law, provided it be city, and town, which is not a part of constitutional, nor any, grievance the track and right of way, and of the which can be remediei by a suit at law, either before or after its payment, personal property, such as tools, implewill authorize an injunction re ments, &c., which remain permanently

straining the collection of a tax. at iliat locality. These are valued by The rule as to courts of equity interfer. the local assessor and taxed by the local

ing with the collection of tuces stuteil authorities in precisely the same man. and applied to u peculiar cu se. ner that other real and personal propAppeal from the Circuit Court of tlie erty are assessed and tased.

2. The railroad track including the the aggregate capital of the company. right of way, the grading and super- This is obvious from the proviso to the structure, and such depots, buildings, fourth paragraph of section three of the and other improvements as are on it, revenue law. As this paragraph lies and all the rolling stock and other per- at the basis of these controversies, it is sonal property not local.

here given verbatim: The entire value of this, owned by “ The capital stock of all companies any company in the state, is ascertained and associations now or hereafter creaby a report made by the proper officer ted under the laws of this state, shall be of the railroad company, submitted to so valued by the state board of equalia state board of equalization, which zation as to ascertain and determine, refixes this value finally, and each county, spectively, the fair cash value of such city, and town taxes the company on so capital stock, including the franchise, much of this assessment as the length over and above assessed value of the of the track within that locality bears tangible property of such company or to the whole length of the track asses- association. Said board shall adopt sed by the board.

such rules and principles for ascertainThese two subjects of assessment are ing the fair cash value of suel capital by the statute called the tangible prop- stock as to it may seem equitable and erty of the company.

just; and such rules and principles It is obvious, however, that while a when so adopted, if not inconsistent tair assessinent under these two descrip- with this act, shall be as binding and of tions of property will include all the the same effect as it contained in this visible or tangible property of the cor- act—subject, however, to such change, poration, it may or may not include all alteration, or amendment as may be its wealth. There may be other prop- found, from time to time, to be neceserty of a class not visible or tangible sary, by said board: Provided, that in which ought to respond to taxation, and all cases where the tangible property or which the state has a right to subject to capital stock of any company or assotaxation.

ciation is assessed under this act, thie 3. This element the State of Illinois shares of capital stock of any such calls the value of the franchise and company or association shall not be as. capital stock of the corporations. The sessed or taxed in this state. This value of the right to use this tangible clause shall not apply to the capital property in a special manner for pur- stock or shares of capital stock of banks poses of gain. And this constitutes the organized under the general banking third valuation, which is likewise to be laws of this state.” made by the board of equalization, and The rule adopted by the board is as which, when thus ascertained, is sub- follows: jected to the taxation of the state, and « First. The market or fair cash the counties, towns, and cities, by the value of the shares of capital stock same rule that the value of the road-bed and the market or fair cash value of is, namely, according to the length of the debt (excluding from such debt the track in each taxing locality. The the indebtedness current word capital stock, as here used, does penses) shall be combined or added to not mean the shares of the stock, but gether; and the aggregate amount 60

for

ex

stock, including the franchise, respect-ferries, insurance, telegraph and exively, of such companies and associa- press interests or business, venders of tions.

patents, and persons or corporations Second. From the aggregate amount owniny or using franchises and priviascertained as aforesaid, there shall be leges, in such manner as it shall, from deducted the aggregate amount of the time to time, direct by general law, equalized or assessed valuation of all the uniform as to the class upon which it tangible property, respectively, of such operates.” companies and associations, (such equal. “S 10. The general assembly shall not ized or assessed valuation being taken impose taxes upon municipal corporain each case, as the same may be tions, or the inhabitants or property determined by the equalization or asses- for corporate purposes, but shall require ment of property by this board), and that all taxable property within the the amount remaining, in each case, if limits of municipal corporations shall any, shall be taken and held to be the be taxed for the payment of debts conamount and fair cash value of the cap- tracted under the authority of law, such ital stock, including the franchise, which taxes to be uniform in respect to persons this board is required by law to assess, and property within the jurisdiction of respectively, against companies and as- the body imposing the same.” sociations now or hereafter created un

As regards this latter section there der the laws of this state.”

is no claim that the rate of taxation levIt is said that the statute of Illinois ied by any municipal corporation, on is void, because it violates the principle the assessed value of railroad property of uniformity, and taxes corporations within its limits, is greater than on in a manner different from that which other property. governs taxation of individuals.

Nor is it asserted that the valuation The sections of the constitution re- of that part of the property which the lied on in support of this proposition, statute regards as strictly local, namely, are sections one and ten of article nine, real estate not a part of the track, and which are as follows:

tools and implements used exclusively $1. The general assemby shall pro- within the locality, has been assessed vide such revenue as may be needtul on any other principle than that which by levying a tax by valuation, so that is applied to the property of individevery person and corporation shall uals.

pay a tax in proportion to the va.ue of his, But the contention is that the rule of her, or its property ; such value to be treating the road, its rolling stock and ascertained by some person or persons, franchises as a unit, and assessing it as to be elected or appointed in such man- a whole, on which each municipality ner as the general assembly shall di- levies its taxes according to the length rect, and not otherwise; but the general of the road within its limits, violates assembly shall have power to tax ped- the principle of this section. The Sudlers, auctioneers, brokers, hawkers, preme Conrt of Illinois have held this merchants, commission merchants, statute to be constitutional. showmer, jugglers, inn-keepers, gro The statute requires the proper officery-keepers, liquor dealers, toll-bridges, cers of the railroad companies to furn

ish to the state auditor a schedule of tinal, can be granted to stay collection the various elements already mentioned of taxes until it is shown that all the as necessary in applying the statutory taxes conceded to be due, or which the rule of valuation. It is charged that court can see ought to be paid, or which the board of equalization increased the can be shown to be due by affidavits, estimates of value so reported to the has been paid or tendered without deauditor, without notice to the com- manding a receipt in full. panies, and without sufficient notice 5. While the constitution of Illinois that it ought to be done, and it is stren- requires taxation, in general, to be uniuously urged that for want of this no- form and equal, it declares, in express tice the whole assessment of the prop- terms, that a large class of persons enerty and levy of taxes is void.

gaged in special pursuits, among whom lleld, 1. While this court does not are persons or corporations owning lay down any absolute rule limiting the franchises and privileges, may be taxed powers of a court of eqnity in restrain- as the legislature shail deterinine, by a ing the collection of taxes, it declares general law, uniform as to the class that it is essential that every case be upon which it operates, and under this brought within some of the recognized provision a statute is not unconstiturules of equity jurisdiction, and that tional which prescribes a different rule

of taxation for railroad companies from neither illegality or irregularity in the

that for individuals. proceedings, nor error or excess in the

6. Nor does it violate any provision valuation, nor the hardship or the in

of the constitution of the United States. justice of the law, provided it be con

7 The capital stock, franchises, and stitutional, nor any grievance which

all the real and personal property of can be remedied by a suit at law, either before or after the payment of the tax, tion, and a rule which ascertains the

corporations are justly liable to taxawill authorize an injunction against its tion, and a rule which ascertains the

value of all this by ascertain:g the collection.

cash value of the funded debt and of 2. This rule is founded on the princi- the shares of the capital stock as the ple that the levy of taxes is a legislative basis of the assessment, is probably as and not a judicial function, and the fair as any other. court can neither make nor cause to be

8. Deducting from this the assessed made a new assessment if the one com- value of all the tangible real and perplained of be erroneous, and also in the sonal property which is also taxed, necessity that the taxes, without which leaves the real value of the capital the state could not exist, should be reg- stock and franchise subject to taxation ularly and promptly paid into its treas- as justly as any other manner, all modes ury.

being more or less imperfect. 3. Quære: Whether the same rigid

9. It is neither in conflict with the rule against equitable relief would ap- constitution of Illinois nor inequitable ply to taxes levied solely by municipal that the entire taxable property of the corporations for corporate purposes as railroad company should be ascertained that here applied to state taxes ? Prob. by the state board of equalization, and ably not.

that the state, county, and city taxes 4. No injunction, preliminary or should be collected within each munici

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