sued for in behalf of the people, and this writ of error was sued out. Section 2 of the Municipal Court Act defines actions of the first class in the municipal court as follows: ther by the charter or articles of incorporation, Stolen Goods, Cent. Dig. § 14; Dec. Dig. CRIMINAL LAW 567 CRIME AGAINST "(a) All actions on contracts, express or im-2. plied, when the amount claimed by the plaintiff, exclusive of costs, exceeds $1,000; (b) all actions for the recovery of personal property Under Cr. Code, § 486 (Hurd's Rev. St. when the value of the property sought to be 1915-1916, c. 38) in a criminal prosecution for recovered as claimed by the plaintiff exceeds a crime against a corporation, the legal existence $1,000; and (c) all actions for the recovery of the corporation may be proven prima facie of damages for the conversion of personal by proof of user of corporate franchises. 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 $1,000." The court obtains jurisdiction of this suit, if at all, because of said provisions of division (a) of said section. [1] It was decided by this court in the case of People v. Dummer (No. 10,654) 113 N. E. 934, that 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, and that a suit for taxes is not an action on contract, express or implied. It was further decided that for the foregoing reasons the municipal court has no jurisdic tion in a suit for taxes for an amount claimed and recovered, exclusive of costs, exceeding $1,000. The municipal court had no jurisdiction in the instant case, and therefore this court has no jurisdiction to review the case on the merits. [2-4] If a court has no jurisdiction of the subject-matter, it cannot acquire jurisdiction by consent of the parties or otherwise. Where the trial court has no jurisdiction, an appeal or writ of error can confer no jurisdiction on the reviewing court. Leigh v. Mason, 1 Scam. 249; Peak v. People, 71 Ill. 278; Beesman v. City of Peoria, 16 Ill. 484; Village of Hammond v. Leavitt, 181 Ill. 416, 54 N. E. 982. The question of jurisdiction was not raised in the trial court, nor has it been suggested by either party in this court, but where the court has no jurisdiction of the subject-matter of a suit it may dismiss the suit of its own motion, and should do so. Roby v. South Park Com'rs, 215 Ill. 200, 74 N. E. 125. Law, Cent. Dig. § 1276; Dec. Dig. 567.] money stolen from a corporation, testimony of In a prosecution for receiving checks and the bookkeeper and cashier of the alleged company that "they" conducted "their" business "as a corporation" was insufficient to show corporate existence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1276; Dec. Dig. 567.] Error to Criminal Court, Cook County; David M. Brothers, Judge. Clarence Struble was convicted of crime, and he brings error. Judgment reversed, and cause remanded. Charles E. Erbstein, Lawrence E. Dowd, and Charles P. R. Macaulay, all of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and George P. Ramsey, of Springfield (E. E. Wilson, of Chicago, of counsel), for the People. FARMER, J. Clarence J. Struble and James A. Craig were tried in the criminal court of Cook county on an indictment, the first count charging them with feloniously, unlawfully, and for their own gain receiving certain checks described in the indictment, for the payment of money. The indictment also charged them with receiving certain money described, and it is charged that at the time said Struble and Craig received the property they knew it had been stolen from the National Fireproofing Company, which was alleged to be a corporation and the owner of the checks and money. The judgment of the municipal court is re- Other counts in the indictment charged deversed. Judgment reversed. (275 Ill. 162) fendants with burglary and larceny of the checks and money. At the trial under the indictment both defendants were found guilty, under the first count, of receiving stolen property, and the value of the property so received was found by the jury to be $47.49. Motions by defendant, Struble, for a new trial and in arrest of judgment were overrul PEOPLE v. STRUBLE. (No. 10769.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. RECEIVING STOLEN GOODS 7(6)-ALLEGATION OF OWNERSHIP IN CORPORATION-ed, and he was sentenced to the state reNECESSITY FOR PROOF-"USER." In a prosecution for feloniously receiving certain checks described in the indictment, the indictment charging that when defendant received the property he knew it had been stolen from a corporation, the ownership of the property in a corporation was a material averment, and its existence necessary to be proven as alleged, ei formatory at Pontiac until discharged according to law, the term of imprisonment not to exceed the maximum term for the crime for which he was convicted and sentenced. He has sued out this writ of error to reverse the judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the legal existence of the corporation may be proven prima facie by proof of user. The statement that the National Fireproofing Company did business "as a corporation" was not proof of user of a corporate franchise nor that the concern was or claimed to be a corporation. It wholly failed to sustain the averment of the indictment that the company was a corporation. A number of cases are to be found in our Reports where it has been held that proof of the exercise of corporate powers and functions is such proof of user as to be sufficient prima facie to establish the legal existence of the cor It is urged as a ground of reversal that it was not proven the National Fireproofing Company was a corporation, as alleged in the indictment. Some other errors are assigned challenging the correctness of the court's rulings. We see no escape from a reversal of the judgment on the ground there was no proof that the National Fireproofing Company was a corporation, as alleged in the indictment, and, as in our view the questions raised on this record by the other assignments of error are not of a character to require discussion in this opinion, they will not be further referred to. [1-3] On the trial of the case the book-poration. The corporate existence alleged keeper and cashier of the National Fireproofing Company testified as a witness for the prosecution, and after stating the location of the office of the National Fireproofing Company the witness was asked, "How do they conduct their business?" and, no objection being interposed, answered, "As a corporation, sir." There was no other proof upon this subject. The ownership of the property was a material averment in the indictment, and it was necessary to prove the ownership as alleged. Aldrich v. People, 225 Ill. 610, 80 N. E. 320; People v. Brander, 244 Ill. 26, 91 N. E. 59, 135 Am. St. Rep. 301, 18 Ann. Cas. 341. In People v. Krittenbrink, 269 Ill. 244, 109 N. E. 1005, the indictment alleged Park, Davis & Co., the owner of the property stolen, was a corporation. A witness was asked whether Park, Davis & Co. did business as an individual, a copartnership, or as a corporation, and over objection of defendant answered, "As a corporation." In holding the proof was incompetent the court said: "It afforded no proof of user of corporate franchises. It was merely the opinion of the witness. No facts were shown on which it was based, and the record contains no evidence from which it can be lawfully inferred that Park, Davis & Co. was a corporation." It is must be proved either by the charter or ar- The criminal court erred in overruling the CARTER, J., dissenting. (274 Ill. 535) BOARD OF EDUCATION v. HAWORTH. (No. 10796.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. STATUTES 131-AMENDMENT "AMENDATORY ACT." In determining whether an act is amendatory of an existing act, it is immaterial whether it professes to amend or not; but the two complete in itself if it intermingles different must be compared, and though it purports to be provisions with the old ones or adds new ones, creating a new law from the prior act and the new act together, it is amendatory. in People v. Burger, 259 Ill. 284, 102 N. E. 751, the indictment alleged Marshall Field & Co., the owner of the stolen property, was a corporation. A department superintendent of the alleged owner was asked whether Marshall Field & Co. was a corporation, and, no objection being made, answered it was. The court held the evidence was incompetent if it had been objected to, but, as there was no objection to the proof, it was held sufficient. In the case here under consideration, as in People v. Krittenbrink, supra, to an inquiry as to how the corporation did busi-Cent. Dig. 199; Dec. Dig. 131. ness the answer was, "As a corporation." This is not a statement that the company was a corporation. It is a matter of common knowledge that partnerships frequently do business "as a corporation"; that is, like a corporation, through directors and persons School Law (Hurd's Rev. St. 1915-16, c. selected as officers and managers. Under 122) § 13, and Laws 1915, p. 632, § 5, deal with the same subject-matter and provide for the statute (Crim. Code, § 486), in a criminal distribution of the state school fund by county prosecution for a crime against a corporation, superintendents, and the provisions are inter [Ed. Note.-For other cases, see Statutes, First and Second Series, Amendatory Law.] [Ed. Note.-For other cases, see Statutes, Cent. Dig. 88 48, 59, 195, 198, 209; Dec. Dig. 64(2), 141(1).] 3. SCHOOLS AND SCHOOL DISTRICTS "TAX"-POWERS OF LEGISLATURE. 159 mingled, one requiring county superintendents returned to him, and shall pay the distributo distribute the share of the county in the state tive share belonging to each township and school fund among the several townships, and the other providing that he shall first pay out of fractional township to the township treasurthe fund the tuition due to each of the high er or authorized persons, annually. Section schools and then distribute the balance as pro- 5 of the act of 1915 provides that on or bevided by the school law. Held, that the act of fore the 1st day of April in each year the 1915 was an attempt to amend the existing law as to distribution of the school fund, and Const. county superintendent of schools of each art. 4, § 13, as to amendment of statutes, not county, having ascertained the number of being complied with, the section is void, and as pupils from his county attending high schools it covers the entire purpose of the act, the under the provisions of the act and the whole act is void. amount of tuition due each of the schools attended, shall pay all such tuitions to the clerks of the boards in control of the schools out of the state school fund apportioned to that county before distributing the same as now provided by law. Section 13 of article 4 of the Constitution provides that no law shall be revived or amended by reference to its title only, but the law revived or the section amended shall be inserted at length in the new act. It makes no difference, in determining whether the act is amendatory of the existing act, whether it professes to be an amendment or not; but the character of the act is to be determined by an examination and comparison of its provisions with prior laws which are left in force. Although an act purports to be complete in itself, if it is merely an attempt to amend a law by intermingling new and different provisions with the old ones or by adding new provisions, creating out of the prior act and the new act a Laws 1915, p. 631, as to payment of tuition for certain high school pupils from the state school fund as apportioned to counties, violates the principle of Const. art. 9, § 1, requiring school revenues to be derived from a tax by valuation, "tax" being a mode of raising revenue for a public purpose of the district in which it is collected, because support of high schools under Const. art. 8, § 1, and acts in pursuance thereof, is a local and corporate purpose, and the act of 1915 requires some districts supporting high schools to pay indirectly for education of children from districts having no high schools. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 330, 331; Dec. Dig. 159. For other definitions, see Words and Phrases, First and Second Series, Tax.] 4. TAXATION 194 "TAX" - POWERS OF LEGISLATURE-UNIFORMITY. Such act violates Const. art. 9, § 6, prohibit-complete law, the act is amendatory. People ing release or discharge of political subdivisions from payment of proportionate share of taxes. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 310, 311; Dec. Dig. 194.] Appeal from Circuit Court, Vermilion County; Walter Brewer, Judge. Bill by the Board of Education against Otis P. Haworth. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions. Roy H. Brown, of Rockford, John G. Campbell and Herman A. Fischer, Jr., both of Chicago, and Charles Troup, of Danville, for appellant. John H. Lewman, of Danville, for appellee. CARTWRIGHT, J. The circuit court of Vermilion county sustained a demurrer to the bill filed by the appellant praying the court to declare the act passed in 1915 (Laws of 1915, p. 631), providing for the payment of high school tuition from the state school fund, in violation of constitutional provisions, and dismissed the bill for want of equity at the costs of the appellant. [1, 2] Section 14 of the School Law provides that, upon receipt of the amount due the county from the state school fund, the county superintendent of schools shall apportion the same to the townships and parts of townships in his county in which schools are maintained as provided by law, according to the number of persons under 21 years of age v. Knopf, 183 Ill. 410, 56 N. E. 155; Badenoch Hollingsworth v. Chicago & Carterville Coal v. City of Chicago, 222 Ill. 71, 78 N. E. 31; Co., 243 Ill. 98, 90 N. E. 276. Comparing section 13 of the School Law and section 5 of the act of 1915, it is found that they deal with the same subject-matter and together provide for the distribution of the state school fund by county superintendents, and that the provisions are intermingled with each other. One requires the county superintendent of schools to apportion and distribute the share of the county in the state school fund according to the number of persons under 21 years of age in the several townships or parts of townships in the county, and the other provides, concerning the same fund, that the county superintendent shall first pay out of the fund the tuition to each of the schools and then distribute the balance as provided by the School Law. A county superintendent cannot determine his duty in disposing of the school fund from either act alone, but must take both as his guide, and, after obeying the mandate of the law of 1915, go to the School Law to which he is directed by the act to determine what further shall be done concerning the same subject-matter. The act of 1915 was an attempt to amend the existing law concerning the distribution of the school fund by adding a new provision, and, the Constitution not having been complied with, the section is void. Section 5 of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the act of 1915 reaches and covers the entire purpose of the act, and is so connected in purpose and intent with the remainder as to render the whole act void. Section 1 of article 9 of the Constitution requires the General Assembly to provide such revenue as may be needful by levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property. In making the provision for raising such revenue as might be needful by taxation, the framers of the Constitution, and the people adopting it, used a term of well-known and established meaning. Such meaning and the legitimate purpose of taxation were understood and intended, and explain both the nature of the power and the limitations under which it is exercised. Whether the limitation is expressed in terms in the Constitution or not, the essential meaning of a tax is that it is a mode of raising revenue for the public needs for a public purpose pertaining to the district within which the tax is levied and collected. These rules are fully explained in a work of high authority on the subject of taxation, from which the following brief extracts are taken: [3] The state school fund consists of the proceeds of a state-wide tax levied annually, together with interest on moneys which are part of the common school fund. On the first Monday in January, annually, the auditor of public accounts is required to apportion to each county the fund in proportion to the number of persons in each county under the age of 21 years, and the amount apportioned to each county is to be paid to the county superintendent of schools, to be apportioned and distributed by him as above stated. In 1913 the General Assembly levied a tax by valuation upon the taxable property of the state of $3,000,000 for that year and a like tax for 1914, and in 1915 levied a tax of $4,000,000 for that year and $4,000,000 for 1916 in lieu of the two-mill tax mentioned in section 210 of the School Law, and the proceeds of these taxes were to be designated the "State School Fund." The act now un- "In the preceding chapter we have endeavored der consideration provides that graduates to show that, in order to give validity to any demand made by the state upon its people unof the eighth grade residing in districts der the name of a tax, it is essential that the which do not provide four years of recogniz- purpose to be accomplished thereby shall be ed high school work shall be admitted, upon public in its nature. But it is equally essential, the payment of tuition, to any public recog- as there intimated, that the purpose shall be one nized high school for the completion of a tains to the district within which it is proposed which in an especial and peculiar manner perfour years' high school course not provided that the contribution called for shall be collected by the home district. Parents or guardians and which concerns the people of that district are permitted to select the school to be at-Taxes are collected as proportionate contribumore particularly than it does others. * * tended, subject to the consent of the high tions to public purposes, but to make them such school board and the approval of the county in any true sense they must not only be such superintendent. On or before March 15th as between the persons called upon to pay them, but also as between those who ought to pay of each year the clerks of the school boards them. It is therefore of prime necessity in taxof the districts where tuition pupils reside, ation that it should first be determined what and the clerks of the boards of high schools public-whether state or local-should bear the attended by nonresident pupils, are required burden, and that it should then be imposed ratably as between those who constitute that to report to the county superintendent the public. It can therefore be stated with names of the pupils, the tuition charges, the emphasis that the burden of a tax must be made school districts in which they reside, and the to rest upon the state at large or upon any particular district of the state, according as the names of the schools attended. The county purpose for which it is levied is of general consuperintendent is required to pay out of the cern to the whole state, or, on the other hand, state school fund apportioned to the county pertains only to the particular district. the tuition of such pupils, and may limit the state purpose must be accomplished by state maximum amount for tuition of each pupil to or a public purpose for any inferior district by taxation, a county purpose by county taxation, $40, provided the tuition in no instance shall taxation of such district. This is not only just, be greater than the per capita cost of main- but it is essential. To any extent that one taining the school selected, and when the man is compelled to pay in order to relieve others of a public burden properly resting upon pupil attends less than the school year the them, his property is taken for private purposes tuition shall be based upon the number of as plainly and as palpably as it would be if apmonths attended. The appellant maintains propriated to the payment of the debts or the discharge of obligations which the persons thus a high school, for which it spends $50 a year relieved by his payments might owe to private for each pupil attending the school, and from parties." 1 Cooley on Taxation (3d Ed.) 225, the school fund under the disbursement proet seq. vided for by the general School Law it received $8,262.80; but under the act of 1915 in question it would receive only $6,684.40. The act, in its substance, provides that the entire county shall pay the tuition bill of such districts therein as do not maintain high schools, out of that part of the state school fund raised by taxation of all property in Section 1 of article 8 of the Constitution is a command to the General Assembly to provide a thorough and efficient system of free schools where all children of the state may receive a good common school education, and the high school is a part of the system of free schools. In the execution of the duty enjoined by the Constitution the General the duty of maintaining the schools and rais- | In People v. Barger, 62 Ill. 452, it was held ing money by taxation for such maintenance, that the act purporting to exempt the inhabiso that establishing both district schools and tants of Shawneetown from state taxes, high schools has been made a local and cor- which required the levy of a tax equal to the porate purpose. Cook v. Board of Directors, tax released by the state to be used exclusive266 Ill. 164, 107 N. E. 327. The effect of the ly to the constructing of a levee to protect act of 1915 is to require the taxpayers in a the city from overflow, was in conflict with district maintaining a high school to indirect- the Constitution. The construction of the ly contribute to the tuition of persons residing in districts maintaining no such school, and thereby to contribute to the local and corporate purpose of furnishing an education to the children of such district. The taxpayers of the district maintaining a high school pay to make up the state school fund and then are deprived of a portion of it for the benefit of districts not maintaining any high school; and the same is true of a district not maintaining a high school which does not send any of its pupils to a high school in another district. The taxpayers of a high school district offering the advantages of a high school education are indirectly forced to assist in the education of pupils living in other districts. The act violates the fundamental principle of uniformity and equality in taxation and contravenes section 1 of article 9 of the Constitution. levee to protect the city from overflow was a public purpose, but it was local, and the exemption was equivalent to an appropriation of state taxes to such a purpose. In People v. Lippincott, 65 Ill. 548, an act appropriating state taxes, except the school and two-mill tax, in certain townships to aid in the improvement of the Kaskaskia river, was held to be abrogated by the present Constitution because in conflict with section 6 of article 9, although the tax was professedly received and applied for state purposes. It was not so applied, in fact, but was applied to making a local improvement, and the principle of the decision is in no way affected by the fact that the improvement was by a navigation company. The act of 1915, by providing for the payment of tuition from the state tax, amounts to a return to school districts not maintaining a high school a part of their [4 The effect of the act is to exempt own-taxes levied for a state purpose, which effects ers of property in districts not providing four years of recognized high school work a practical release or commutation of taxes. from paying taxes proportionate to the value of their taxable property as compared with the taxable property of other districts, to the extent that the state tax is appropriated to a local and corporate purpose. The result is to release the districts from the payment of taxes for such purpose, and that is a violation of section 6 of article 9 of the Constitution, which provides that the General Assembly shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof or the property therein, of their or its proportionate share of taxes to be levied for state purposes, nor shall commutation for such taxes be authorized in any form whatsoever. The state-wide school tax is a tax for a state purpose, to be apportioned to and distributed by the auditor among the counties and by the county superintendent of schools among the districts in the county, and by the act in question the school district maintaining no high school is released from taxation for the local and corporate purpose of paying tuition of its pupils residing in the district and attending schools outside of the district. It is argued that the act is void because it gives the county superintendent an arbitrary discretion to limit the tuition charge to $40 per annum; but, while the act provides that the superintendent may so limit the maximum amount for each pupil, he is required to notify the high schools in the county before the opening of the school year, and the right to attend the school is subject to the They approval of the high school board. must consent to the admission of the pupil at $40 per annum if the superintendent should fix that charge, and power is not vested in the county superintendent to compel any high school board to furnish tuition at that price. With the greatest consideration for the lawmaking power, and under the rule that all doubts must be resolved in favor of the constitutionality of the act, it must be held that the act of 1915 is void because in conflict with constitutional limitations. The decree is reversed, and the cause remanded, with directions to overrule the demurrer. Reversed and remanded, with directions. |
