The opinion
Per Curiam: On this application for a rehearing we are referred to the case of Bristol v. The City of Chicago, 22 Ill. 587 , as controlling the question of imposing five per cent on the amount of taxes not paid on or before the 1st day of January in each year. In that case, the law authorized the collection of ten per cent on the amount of the 'Special assessment, in case the owner of the land failed to pay it before the collector filed the delinquent list, on an application for an order of sale, as additional costs. That the legislature may provide for the recovery of reasonable costs, either by a percentage on the amount of the recovery, or by fixing specific sums in a bill of items, there can be no doubt. In that case the law was sustained, as it gave that per cent as additional costs, which was manifestly designed to cover the expense of making and advertising the delinquent list, together with other expenses and outlays incurred by the application.
The per cent imposed in that case was upon a special assessment levied for the improvement of a wharf in the city. In such cases, after the levy has been made, labor- is performed and expenses incurred - by the city in completing the improvement, on the faith of the collection of the assessment to meet the outlay; and it is therefore but reasonable, that the person' failing or refusing to pay his assessment, should contribute to the payment of interest which may have accumulated, by delay in paying for labor and materials procured by the city for the construction of the improvement. One of the objects in giving costs is to cover expenses incurred in prosecuting a suit for the recovery of the demand. Hence it is reasonable, that the delinquent tax payer should in some mode be required to meet the expense incurred in prosecuting a suit for the recovery of the amount, which remains delinquent, and the same is equally true of unpaid special assessments.
That the legislature may authorize the courts to impose and render a judgment for such a penalty, we have no doubt; but we do not believe that such a power can be conferred upon a mere ministerial officer, without any opportunity to be heard by the tax payer. It will be observed, that in Bristol’s case the law did not authorize the collector to impose the additional per cent, until he filed his report on the application for the order of sale of the property, and it was then adjudicated upon by the court; while, in this case, the officer was authorized to impose it long before the term of the court at which he is required to file his report of the delinquent list, which is at the term at which he applies for judgment. Had the ordinance in this ease only provided for the imposition of this five per cent at the time of passing the order for the sale of the lands, thus affording the tax payer an opportunity until that time to pay his tax, and to be heard in the court whether he was liable to the forfeiture, this case would then have come within the principle of Bristol’s.
The facts in this case afford an illustration of the hardship that is liable to occur from accident, or otherwise, by imposing a penalty at a previous time. It appears that there was a mistake of a large amount in the ease of the chamber of commerce, and before it could be corrected the first of January had arrived, and the penalty claimed and attempted to be imposed, without any fault on their part. To impose such a penalty, under these circumstances, would be, to say the least, a hardship and a wrong. If, however, the penalty should not be imposed until after the collector’s report is filed on the application for the judgment, then all have a fair opportunity to pay their tax, and be heard against a forfeiture. We are aware of no case where a forfeiture may be imposed and enforced, except by a judgment of a court of competent jurisdiction. If the collector may impose this per cent, he can enforce it by distress and sale of property, without the tax payer having been legally adjudged to have incurred a penalty. When a per cent is imposed for taking an appeal for delay, or for failing to pay a note due to the school fund, the penalty is imposed by the judgment of the court, and not by the creditor, or a ministerial officer. It is believed to be a general rule, without an exception, that forfeitures cannot be enforced, except through the judgment of a court of competent jurisdiction, and this is true whether it be called costs, damages, or a penalty. A judgment must be first had before satisfaction can be enforced.
We do not, therefore, regard Bristol’s ease as governing this, as it is materially different both in the facts and principles involved. With these additional reasons we adhere to the original opinion filed in the case.
Judgment affirmed.