Petition for A Writ of Certiorari — Gulf, Mobile & Ohio Railroad v. People ex rel. Callahan

LARD 8. WILEY, Clerk

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1956.

SR es oo ae ate |

GULF, MOBILE AND OHIO RAILROAD COMPANY,

Petitioner,

VS,

PEOPLE ex rel. JAMES T. CALLAHAN, County Collector

of Madison County, Illinois,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Illinois.

J. N. OGDEN,

104 St. Francis Street,

Mobile, Alabama,

LOUIS F. GILLESPIE,

HUGH J. DOBBS,

508 Reisch Building,

Springfield, Illinois,

Attorneys for Petitioner.

St. Louis Law Printine Co., 415 North Eighth Street. CEntral 1-4477. /

INDEX.

Page

Reference to reports of opinion below ............... 1

ciesstayrasartenasg MEE OTE PR EIN Nat ec aA Me a 2

- ssiunpeusoudhl apnanescncaca MTT AT eS OR en re 2

Constitutional provisions, statutes and rules involved 3

oS SRIORS OF She-ontt a 555. ee 5

Federal questions presented in the County Court..... i)

Federal questions in Illinois Supreme Court on appeal,

nctontosin. catngsnas tc, Me TET Oe eRe elt 10

Questions presented by the petition for rehearing..... 11

Federal questions originating in the decision of the

SHineis Supreme Court 2... oo 3 ocess veces sckn., 12

Pe Os WG RE eo is kaa 14

cana: EE CO EE Oe Ce Re 14

Reasons relied on for allowance of writ ............. 14

1. The case presents questions of importance to

every taxpayer and taxing authority in the State

Ma ac RE EEE ET ESE rT ON MEM tae ihe as 14

2. The Ilinois Supreme Court has decided federal

questions of substance in a way not in accord with

the applicable decisions of this Court ........... 16

A. The Illinois courts effectively denied the in-

dependent federal defenses of denial of due

process and equal protection, which were well

pleaded, without having considered the merits

Oh CE. 5. Sac ee 16

B. The Railroad was deprived of due process and

equal protection by the judgments of the TIli-

nois courts after their capricious and arbitrary

rejection of all defenses..................... 20

i, eT pean een Tk # Fea wba 25

PETER PRISE 0

il

Cases Cited.

Aldrich v. Harding, 340 Ill. 354, 359, 172 N. BE. 772.... 0 17

American Railway Express Co. v. Levee, 263 U. S.

ee oye a st neyo es baie aoe wane Os 19

Baltimore & Ohio R. Co. v. United States, 298 U. S.

eek oaks es ok bk kins bb 8a. 0 kn oo 8 oe 24

par Co. v.C. B. 2 CO RB. Co., 44 1 22 .........5.. 23

Boyd v. Nebraska, 143 U.S. 135, 180................. 19

Brown v. Western Railway of Alabama, 338 U.S. 294,

a sig A ae Be ot SR ea eee 19

Bureau County v. C. B. & Q. R. Co., 44 Tl. 229 ....... 3

(. & A. R. R. Co. v. Livingston County, 68 Il. 458, 461 28

Caster v. Temes, 177 U. B 462, 447... newer es vecccee 19

C.c. C. & St. L. Ry. Co. v. People, 223 TIL. 17, 20, 79

RR i iS ee er 93

CC. M. & N. R. R. Co. v. People, 207 Ill. 312, 314-5, 69

ae te AS ean ae a 2°

Charleston Federal Savings and Loan Association vy.

Alderson, 324 U. 8. 182, 190-191 ................. 18, 21

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 231.. 18

Chicago, B. & Q. R. Co. v. Ilinois ex rel. Grimwood,

I coc as hc abobiceberiwnecxae» 18

Chicago L. Ins. Co. v. Needles, 113 U. 8. 574, 579...... 25

Chicago Railway Co. et al. and People v. Sullivan et

al., Seventh C. C. A. (1949), 175 F. 2d 282, 286-288.. 17

Concordia Fire Insurance Co. v. Illinois, 292 U. S. 535,

ee Pee rei wht eke k wae oss ae eeKe wkd os lj

Consolidated Coal Co. v. Illinois, 185 U. S. 203, 206-7.. 25

Covington & L. Turnp. Co. v. Sandford, 164 U.S. 578,

ee Pe ease eae cheikh os dbees 19

Cumberland Coal Co. v. Board of Revision, 284 U. S.

ee el wu gee b kes cSéd e's kona 17

Davis v. Wechsler, 263 U. S. 22, 24...............2.- 19

Witte w, Diwen, 300 0. G. G66, 468... ccc ete nnee 19

lil

Enterprise Irrigation District v. Farmers Mutual Canal

eg Wie Ws Og RS is 85 5d Sd eae aebdwsicwe ees

First National Bank v. Anderson, 269 U. S. 341, 346..

Grannis v. Ordean, 234 U.S. 385, 394................

Great Northern R. Co. v. Weeks, 297 U. S. 135, 139....

(ireen v. Louisville and I. R. Co., 244 U.S. 499, 512-14

Hillsborough Township v. Cromwell, 326 U. 8S. 620, 623-

MEE: eh GEESE CTA eg es hba Chek nao os ve Kn ea Ck

Louisville & N. R. Co. v. Schmidt, 177 U. 8. 230, 236. .

McVeigh v. United States, 78 U. S. 259, 265-267......

Mitchell v. Clark, 110 U. S. 633, 645.................

People ex rel. Stuekart v. Shortall, 287 Ill. 150, 151,

se SOP re Rt PCO a Bin aa

People ex rel. v. Turk, 391 Ill. 424, 63 N. E. 2d 513....

People v. A. T. & S. F. R. Co., 389 Tl. 204, 207, 58 N. E.

WEEE Niab ela hss kinae pea coeur velida Loe ea.

People v. C. B. & Q. R. R. Co., 282 Til. 206, 217, 118

NOE hxc pace rans rneies career ee

People v. C. B. & Q. R. R. Co., 281 Til. 500, 503, 96

tM sedi cedsh se tye tener one

People v. C. B. & Q. R. R. Co., 300 TIL 399, 133 N. E. 467

People v. C. M. & St. P. R. R. Co., 381 TI. 58, 44 N. E.

WP CAN ikshedhs Sanins seeueni Ore tet

People v. Commonwealth Edison Co., 376 IIL. 70, 73, 77,

ee ANE se pea daakuubacl ite ose

People v. Com. Ed. Co., 376 Tl. 70, 32 N. E. 2d 902... .

People v. Ill. Central R. R. Co., 355 TIL. 605, 190 N.

MEME SSUTALah baveedap ne ccaks cater eiaces

People v. Keokuk and Hamilton Bridge Co., 287 Til.

246, 248-250, 122 N. H. 467...........00500550.....

People v. K. & H. Bridge Co., 287 Til. 246, 250, 122

ede SCT ERE Ae PERRI a A er GaP nl Naan ran

iv

People v. K. & H. Bridge Co., 287 Ill. 246, 247-8, 122

ig Ma Fhe hs 5a de Oe SR ESO RS apes aere es

People v. K. & IL. Bridge Co., 287 Ill. 246, 248-250,

Se CM EEL fn Gio tin bse had's ana ewes « obG nna ee ras

People v. K. & S. W. R. R. Co., 237 IL 562, 367, 93

Pe RETR CLE CUS AAA ESAS SATO ERO EK Ree ee

| A er err rere rT CE rere

People v. Stewart, 315 Ill. 25, 29-30, 145 N. KE. 600 ....

People v. Union Station Co., 383 Ill. 153, 48 N. BE. 2d

DE ccd oh eh Wns eee eee iss eh saa hes ev eb aReewee

Peoples Gas Light and Coke Co. v. Stuckart, 286 IIL.

i eee rr er ee

Raymond v. Chicago Union Traction Co., 207 U.S. 20,

“or .

eR pg SR a econ Ee AOR POUR tees Si OS ie ie Or = Pere

ata Pees 2 it oh oe a la Wi as Sa bake eh cee Rees

St. Louis S. W. R. Co. v. Arkansas, 217 U. S. 136, 149

Simon v. Crate, 102 0. & 45s, S06 oc ctcccccsvccseuss

Sioux City Bridge Co. v. Dakota, 260 U.S. 441, 446...

The People ex rel. Wangelin v. Wiggins Ferry Co., 357

Be SS ee Ee ee eee

Tuttle v. Bell, 377 Ill. 510, 512, 37 N. E. (2d) 180.....

West Chicago Street R. Co. v. Illinois ex rel. Chicago,

Ds RCA Usk GAA VERGE RO Cea aue teehee eas

Windsor v. MeVeigh, 93 U. S. 274, 278...............

Statutes Cited.

1939 Revenue Act of Illinois, Sections 17, 20, 21 and 73

through 77, 94, 100, 107, 108 (5), 111, 127, 128, 129,

Sa ey ey Be BOE ok hed dae eee aes

1939 Revenue Act, Sections 17, 80, $5, 86, 88, 90, 130

ER REE IRR pt Uae ere te baa EM eS gS RS

1939 Revenue Act, Sections 194, 232, 234 and 235......

y

1939 Revenue Act, Sections 194, 235 ................ 20

Full Valuation Acts of 1945....................055. 4

Illinois Civil Practice Act, Sections 46 and 92........ 4

1951 Illinois Revised Statutes, Ch. 110, pars. 170 and

ane, Ch. 7, pare. 1, 6 (5), (9) amd 7 ooo c icc nc cces. 4

1951 Illinois Revised Statutes, Ch. 120, 675, 716...... 20

1951 Illinois Revised Statutes, Ch. 120, pars. 498, 501,

002, 554-558, 575, 581, 588, 589 (5), 592, 608, 609, 610,

ce RE EE rat NE NHI Oe Ree 3

1951 Illinois Revised Statutes, Ch. 120, pars. 498, 561,

566, 567, 569, 571, 611 and 612 .................... 4

1951 Illinois Revised Statutes, Ch. 120, pars. 675, 713,

SA OY oes 1a taarres keg anes ak eos kee ens 4

1953 Illinois Revised Statutes, Ch. 110, par. 259.39, and

Amended Rule 39, effective on and after January 1,

RETAIN, SeSaMa rar gaye RDU a NCR Lae Agel Ns be ae BoB 5)

1955 Illinois Revised Statutes, Ch. 110, par. 101.39.... 5

Statutes on Amendments and Jeofails, Sections 1, 6

SEP E + 3a vee Ramey aca eran eae he be tee con 4

28 U.S. C., Seetions 1257 (3) and 2101 (c) .......... 9

Constitutional Provisions.

Fourteenth Amendment to the Constitution of the

United States, Section 1...................-. 2, 3, 17, 24

Illinois Constitution, Section 1, Article IX........... 20

Miscellaneous.

Illinois Supreme Court Rules, effective in 1955,

ES cee ka enc taasweigs Cond ater da, weet 5, 23

SEER OTE LS WMD PT SEONG

aon

PAINE TK

ARES

PM a OP tae BAe a AEE: i nD oe ABE aH A eI SP np Rtn

reat re

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1956,

GULF, MOBILE AND OHIO RAILROAD COMPANY,

Petitioner,

VS.

PEOPLE ex rel. JAMES T. CALLAHAN, County Collector

of Madison County, Illinois,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of Illinois.

The petitioner, Gulf, Mobile and Ohio Railroad Com-

pany, prays that a writ of certiorari issue to review the

judgment of the Supreme Court of Illinois, entered in the

above entitled cause’on January 19, 1956.

REFERENCE TO REPORTS OF OPINION BELOW.

The opinion of the Supreme Court of Illinois is reported

at 8 Ill. 2nd 60, 132 N. E. 2nd 544 (Advance Sheet No. 4),

No opinion was rendered in the trial court.

|

JURISDICTION.

The opinion of the Illinois Supreme Court was filed on

January 19, 1956 (R., 9).!. Judgment of the Court was

entered as of January 19, 1956 (R., 15). A timely petition

for rehearing was denied on March 19, 1956 (R., 23). The

motion of the Railroad that the State Supreme Court con-

sider the exercise of its power ex mero motu to order

an amendment of the pleading was denied on March 15,

1956 (R., 22).

This court has jurisdiction of this cause under 28

U.S. C., Seetions 1257 (3) and 2101 (ce).

QUESTIONS PRESENTED.

The questions presented for review are:

1) Did the stricken tax objections of the Railroad ade-

quately present the defense of denial of due process of

law and of the equal protection of the laws, under the Four-

teenth Amendment to Federal Constitution?

2) Was the Railroad deprived of due process of law and

of the equal protection of the laws by the capricious appli-

cation of a standard of pleading in this case, not provided

by the statute establishing the remedy, and not applied in

other tax objection cases, the practical effect of which was

to by-pass these asserted federal rights and to deny to the

Railroad its only efficient remedy for the enforcement of

such rights?

1 Matters appearing only in the transcript of record in this court

are indicated by “R., ....". Those matters appearing in the printed

abstract of record before the Hlinois Supreme Court are indicated

A ee

* The dissenting opinion of the Chief Justice which appears in

the transcript immediately following the majority opinion, was in

fact filed on March 19, 1956, the day the petition for rehearing was

denied. The judgment of the court was entered as of the date of the

majority opinion on March 23, 1956, upon the adjournment of the

March term of the court.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED.

The Constitutional provisions and statutes and rules

which this case involves are:

(1) The *‘due process” and ‘‘equal protection’? clauses

of Section 1 of the Fourteenth Amendment to the Constitu-

tion of the United States.

(2) The provisions of the 1939 Revenue Act, as amended

and in effect in the year 1951, which required locally as-

sessed property to be assessed by local assessing officers,

to be reviewed and corrected by the County Board of Re-

view, and to be equalized by application of a multiplier

determined by the State Revenue Department at full fair

cash value.* Sections 17, 20, 21 and 73 through 77, 94, 100,

107, 108 (5), 111, 127, 128, 129, 130, 131, 146, 149 and 151

of the 1939 Revenue Act of Illinois, as amended. 1951 IIli-

nois Revised Statutes, Ch. 120, pars. 498, 501, 502, 554-558,

579, 581, 588, 589 (5), 592, 608, 609, 610, 611, 627, 620-632.4

(3) The provisions of said 1939 Revenue Act requiring

railroad property to be assessed and equalized by the State

Department of Revenue at full fair cash value and to be

* It was conceded by the Collector, and found by the Supreme

Court of Illinois, that the sections of the Revenue Act referred to

required all valuations of property subject to ad valorem taxation

to be developed and extended at full, fair cash value. The court

said in its opinion, “the parties agree, as indeed they must, that the

Revenue Act requires all valuations upon which tax rates are devel-

oped and extended to be at full, fair cash value.” Separate Appen-

dix A.

* All references to the Illinois Statutes refer to the State Bar

Association and the Smith-Hurd Annotated editions of the Illinois

Constitution and Statutes. Chapters and sectional arrangements are

the same. The State Bar Association volumes are published bien-

nially and the 1951 edition is used for referral purposes because

1951 taxes are here involved. However, with minor exceptions the

subsequent editions of the State Bar Statutes would contain the ap-

plicable statutory provisions.

locally taxed as ‘‘other real estate.’’® Sections 17, 80, 85,

86, 88, 90, 130 and 131 of the 1939 Revenue Act; 1951 Illi-

nois Revised Statutes, Ch. 120, pars. 498, 561, 566, 567, 569,

571, 611 and 612.

(4) The provisions of said 1939 Revenue Act defining

the remedy of tax objection in the County Court upon the

application of the Collector for judgment for taxes paid

under protest, and requiring the court to hear and deter-

mine the matter in a summary manner, without pleadings,

and to pronounce judgment as the right of the case might

be, and which authorized amendments to a tax objection as

in other cases. Sections 194, 232, 234 and 235 of the 1939

Revenue Act; 1951 Illinois Revised Statutes, Ch. 120, pars.

675, 713, 715 and 716.

(5) The provisions of the Civil Practice Act and the

Illinois Statute of Amendments and Jeofails authorizing

amendments to any pleading in eny court prior to final

judgment. Sections 46 and 92 of the Illinois Civil Practice

Act and Sections 1, 6 and 7 of the Statutes on Amendments

and Jeofails; 1951 Illinois Revised Statutes, Ch. 110, pars.

170 and 216, Ch. 7, pars. 1, 6 (5), (9) and 7.

> Sections 86, 146, 149 and 151 of the Act, as amended in the

year 1945, and then added Section 162a were known as the Full

Valuation Acts and constituted comprehensive basic tax reform

legislation intended to accomplish full fair cash valuation for all

taxable property in Illinois, as assessed or equalized for purposes of

ad valorem taxation. 162a placed a floor under, and a ceiling over,

local tax levies which might otherwise have been rendered insuffi-

cient or exorbitant as a result of the full valuation reform and the

reduced tax rates which were simultaneously placed in effect by

ninety other companion acts. It was shown in the Illinois Supreme

Court (Appendix to Appellant's brief in that Court; R., 5); that it

was publicly acknowledged that the reform was not effective in

respect to locally assessed property, being ignored and knowingly

violated at the local level where the assessment function was per-

formed, and initial debasement occurred, and being intentionally and

flagrantly violated at the state level in the determination of the mul-

tiplier to be applied to the debased local assessments to produce

equalized full fair cash value.

—_—_ )—

(6) The Rule 39 of the Illinois Supreme Court applicable

to all appealed cases, limiting matters to be considered to

those presented by the record in the lower court and

briefed and argued in that court. Rule 39 of Illinois Su-

preme Court Rules, effective in 1955; 1953 Illinois Revised

Statutes, Ch. 110, par. 259.39, and Amended Rule 39, effee-

tive on and after January 1, 1956; 1955 Illinois Revised

Statutes, par. 101.39.

STATEMENT OF THE CASE.

This is a tax objection proceeding which originated in

the County Court of Madison County, Ilinois, upon the

Railroad’s objections to the application of the County Col-

lector for judgment for 1951 taxes paid by the Railroad

under protest.

The Collector interposed a motion to strike the Rail-

road's objections. The motion was sustained and judgment

awarded the Collector for the full amount involved—

$18,078.38. An appeal was taken to the Illinois Supreme

Court, which affirmed the County Court upon grounds not

previously raised or considered.

Questions as to a denial of due process of law and of the

equal protection of the laws evolved from the alleged

unlawful discrimination against the Railroad in the ad

valorem taxation of its property and the action of the Tili-

nois courts in refusing to consider the merits of such

objections.

The Railroad claimed by its stricken objections that it

had been excessively, fraudulently and illegally taxed in

Madison County for the year 1951 because of the inten-

tional under-valuation of all locally assessed property in

Madison County in wilfu! disregard and flagrant violation

of the 1959 Revenue Act, as amended, at not exceeding

60 percent of the full, fair cash value of such property and

— So

the assessment at full, fair cash value, or 100 percent

assessment, of the Railroad’s property.

The Railroad seeks to recover the amount of excess tax

extended against its property as the inevitable result of

rates developed through the use of assessments of locally

assessed property admittedly assessed at not more than

60 percent of its full, fair cash value, together with assess-

ments of property as made by the Department of Revenue,

which assessments were admittedly at 100 percent of full,

fair cash value.

With exceptions not here relevant, tax rates in Illinois

are developed by the simple process of dividing the total

assessed value of the particular taxing unit into the total

amount sought to be levied by that unit. The resulting

quotient is the rate. Expressed as a formula it is:

Levy

Fe Rate

Assessed Value

It follows from the use of this formula that the rate

increases or diminishes directly as the assessed value is

lowered or raised. That is, the smaller the assessed value

the higher the rate and the larger the assessed value the

lower the rate.

Since the assessed value against which the 1951 taxes in

Madison County were extended consisted of local assess-

ments at not more than 60 percent of full, fair cash value

on the one hand and assessed values fixed by the Depart-

ment of Revenue at 100 percent of full, fair cash value on

the other, it follows that the divisor in the formula (total

assessed value) was lower than it should have been and thie

quotient (rate) higher than it should have been.

The Railroad contends that by being forced to pay taxes

on rates higher than would have been developed if assessed

ant nee

values of locally assessed property in the divisor for each

taxing district had been at the equivalent of 100 percent

of full, fair cash value, it is denied the equal protection of

the laws; and, that the failure of the Ilinois courts to

allow the Railroad to pursue the statutory remedy for the

recovery Gf such excess taxes, denies to it due process of

law.

The objections of the Railroad were in two forms. By

its Objection No. 1, the Railroad stated its ease in respect

to all the taxes claimed to be excessive because of such

discrimination, and in this objection and a comprehensive

and detailed table identified as “Schedule A”, affirmatively

and direetly alleged all the controlling and material facts

of the valuations, levies and rates and computed the

amounts of excess taxes resulting from the alleged and

demonstrated inequality and discrimination in the assess-

-ment and valuation of property. Other “specifie objec-

tions” related to each of the several taxes objected to and

independently, affirmatively and fully alleged the con-

trolling and material facts in respect to each subject tax

(Abst., 3-22, 28-40). The objections were amended to mect

all points relating to their form raised by the motion, so

that they might be considered solely upon their merits

(Abst., 28-40).

The controlling facts alleged in the amended objections

were admitted by the motion and may be briefly stated.

The excessive taxation of the Railroad’s property objected

to is alleged to have resulted from the knowing and in-

tentional violation of the said 1939 Revenue Act, as

amended and in effect in 1951, by: (a) the local assessing

officers of Madison County; (b) the Board of Review of

said County: and (¢) the State Department of Revenue,

who are alleged to have, knowingly and intentionally,

separately and collectively, violated the law and knowingly

and intentionally produced assessed valuations of locally

assessed property of not to exceed 60 percent of the

" tae

eaten

required statutory standard of full, fair cash value, at

which such property was included in the tax base and

taxed, while the law was obeyed as to the property of

the Railroad, which was assessed and taxed at full, fair

cash value.® It is shown by computations based upon such

admitted facts, that as a result of the discriminatory

assessment of locally assessed property, excessive and dis-

criminatory taxes were levied upon the property of the

Railroad in Madison County in 1951, in the total sum of

$18,578.38 (Abst., 3-22, 58-40).

The admitted facts are a recital of the notorious prac-

tice of debasement of locally assessed valuations in Illinois,

6 The objection alleged that the assessors knowingly assessed such

locally assessed property upon the valuation of not to exceed 10.2

percent of its full fair cash value, and that such valuations were

certified by the County Board of Review without changing or re-

vising the general level of the assessments with knowledge that the

same was assessed at such debased value (Par. 3 of the objections;

Abst. 3). It is further alleged that the Department of Revenue

certified a multiplier which was knowingly and intentionally fixed by

the Department at a percent which would produce a debased equal-

ized and assessed valuation of not to exceed 60 percent of the full

fair cash value of such property (Par. 4 of the objections; Abst. 4).

It is also alleged that the 1951 taxes upon railroad property was

levied upon a basis which discriminated against such property and

the railroad in favor of “locally assessed property taxable in said

county and districts, and the owners thereof, in that such locally

assessed property was not valued at its full, fair cash value in either

its assessment by the assessing officers of said district and county,

or as equalized by application of the equalization rate certified by

the Department of Revenue, but was knowingly and intentionally

valued, assessed and equalized at a lesser value, to-wit: not exceed-

ing 60% of its fair cash value, and lacked uniformity and was

unequal in respect to the property of this Objector; and that the

taxes levied by said county and the said several taxing districts when

extended against all the property locally assessed and other property

taxed in said county and taxing districts, including the property of

this Objector, which was assessed and equalized by the said Depart-

ment at the State level at the full fair cash value thereof, as pro-

vided by, under and in accordance with Sections 79 to 86, inclusive,

and Section 8& of the 1939 Revenue Act, as amended, produced dis-

criminatory, arbitrary, fraudulent, excessive, unconstitutional, wrong-

ful and illegal rates of taxation upon Objector’s property; (Par. 9

of the objections; Abst. 7, also see Abst. 10-21, 9, 32-33).

matin.

through a consistent, concerted pattern of action on the

part of the assessing and equalizing authorities charged

with the duty of administering the Ilinois Revenue Act,

at all levels of government, designed to produce debased

assessments without regard to the full valuation require-

ments of the Illinois Revenue Act of 1939, as amended.

Such maladministration produced in Madison County for

the year in question a debased valuation of locally assessed

property, intentionally arrived at, which resulted in the

alleged gross discriminatory taxation upon the Railroad

and its property."

FEDERAL QUESTIONS PRESENTED IN THE

COUNTY COURT.

It was contended by the Railroad in each objection

that, by reason of the alleged discrimination, it had been

excessively and illegally and fraudulently taxed in the

demonstrated excessive amounts, in violation, inter alia,

of the applicable provisions of “the 1939 Revenue Act.

* * “and the due process and equal protection clauses of

the Fourteenth Amendment to the Constitution of the

United States” (Abst., 10, 123, 18).

FEDERAL QUESTIONS IN ILLINOIS SUPREME

COURT ON APPEAL, AND DISPOSITION.

Upon appeal, in the Supreme Court of Tlinois, the Rail-

road relied upon all grounds of objection asserted in the

County Court, and also contended that, by the striking of

its objections, the lower court had refused it the only

efficient remedy provided by law against the alleged and

admitted unequal and discriminatory taxation of its prop-

erty and in so doing had denied it due process of law

-_ Separate Appendix FE, pages 33-41, and sce Appellant's brief,

pages 27-28, R. 5, and Appendix to Appellant’ s brief, pages 56-69,

— oe

and equal protection of the laws (Brief of Appellant,

errors relied upon, pages 10-11, points and authorities and

argument, I, II, III, and V, pages 12-17, 18-28, 42-48; R., 5).

The majority opinion of the Illinois Supreme Court held

that, notwithstanding it appeared the Railroad was en-

titled to relief upon the defense of constructive fraud, and

had chosen an appropriate remedy to assert such defense,

and without referring to the statute defining the remedy or

to any other precedent, the objections, as amended, were

properly stricken because the ‘‘bare allegations’? of the

value of locally assessed property contained therein were

insufficient to

‘* Afford a basis for accepting the allegation that

local property was assessed at other than its full, fair

cash value or which would permit the court to make

the comparison in values, the appellant seeks to draw,

upon the defense of constructive fraud."’

The question before the court in considering the pro-

priety and justice of the order of the trial court striking

the objections, was not the acceptance of the truth of the

allegations of value which were ultimate facts subject to

proof at the hearing on the merits, but the sufficiency of the

facts, if proved, to establish a defense, and the right to

make such a defense. Since the objections were not heard,

the evidence to prove the allegations in question was not

before the court and the acceptability of the allegations

was not subject to determination.

The majority opinion ignored and did not consider the

defenses presented by the amended objections that the

Railroad had been denied due process and the equal pro-

tection of the Revenue Laws of Illinois in the taxation of

its property, and that the action of the County Court in

striking the amended objections and in awarding judg-

ment to the Collector, had deprived it of its sole efficient

ry, |, pan

remedy to avoid the discriminatory and excessive taxation

objected to, and that thereby the Railroad had been denied

due process of law. The objections were stricken by the

County Court and the action of striking was affirmed by

the [linois Supreme Court. The remedy provided by the

Act for the distressed taxpayer was, therefore, effectively

refused upon federal, as well as the state grounds referred

to in this opinion.

QUESTIONS PRESENTED BY THE PETITION

FOR REHEARING.

By timely petition for rehearing the Railroad pointed

ont that it had not relied upon ‘bare allegations’’ of value

and that all essential ultimate facts to be compared had

been affirmatively stated, that counsel were unable to find

in the Collector’s motion to strike any assigned reason

which supported the criticism upon which the court’s

opinion was based, and that, under rules of Illinois praec-

tice, the question not having been raised, had been waived

(Petition for Rehearing, Point I, pages 4-10, R., 17).

It was further pointed out in the petition for rehearing

that the remedy of tax objection was defined by statute,

to be of a summary nature ‘without pleadings,’’ and that

the court had held it sufficient if, upon reading an objec-

tion, court and counsel could readily understand the ques-

tions presented for determination, and had repeatedly de-

clined to consider technical criticism of. tax objections

which met this test (Petition for Rehearing, Point II, pages

10-17, R., 17). It was also pointed out that the court had

previously defined both the form and substance of an iden-

tical defense of constructive fraud to be those contained

in the subject objections.7

* People v. K & I Bridge Co., 287 Ill. 246, 247-8, 122 X. FE. 467,

referred to in dissenting opinion of the Chief Justice.

=

The court’s attention was also called to the many Illinois

and Federal decisions holding similar disparity in the

assessment of property for purposes of taxation to be dis-

criminatory, and to support a similar remedy. (Petition

for Rehearing, Point II], pages 17-22, R., 17.)

The petition also called the court’s attention to its fail-

ure to consider the defenses based upon the due process

and equal protection clauses presented by Point V_ of

Appellant’s brief and argument, in which it was contended

that:

‘“‘The order and judgment complained of errone-

ously confirmed the usurpation of legislative power

and violation of the Act by those charged with its

administration and denied the Railroad the sole

efficient remedy for the protection of its rights. The

Railroad was, thereby, denied due process of law and

the equal protection of the laws, and was subjected to

taxation lacking both in statutory and constitutional

uniformity in violation of * * * the Due Process and

Equal Protection Clauses of the Fourteenth Amend-

ment to the Federal Constitution.’’ (Petition for Re-

hearing, Point IV, pages 22-23, R., 17.)

FEDERAL QUESTIONS ORIGINATING IN THE

DECISION OF THE ILLINOIS.

SUPREME COURT.

Lastly, in its petition for rehearing, the Railroad further

contended that:

‘Since the objections fairly state tax discrimination

injurious to the railroad resulting from inequality and

discrimination in the administration of the Act, and

constituting constructive fraud under the decisions of

this court, for which the remedy of tax objection is

applicable as a matter of law, the opinion of the court

aw 13

amounts to a capricious withholding or refusal of this

statutory remedy to the objector in violation of the

equal protection and due process clauses of the Four-

teenth Amendment to the Constitution of the United

States © * * the court has misapprehended the factual

and pleading aspects of the remedy of tax objection,

and has attached thereto and here applied require-

ments without the scope of Sees. 194 and 235 of the

1939 Revenue Act, as amended, which defeat the pur-

pose and intention of the statute, and which require-

ments are not uniformly applied by this court in other

tax objection cases. We respectfully submit, that,

by this decision, the rights of the railroad to equal

protection under the Act and to due process as pro-

vided by the Act, have been even further invaded,

‘This invasion is predicated upon a technical plead-

ing point not clearly presented in the lower court and

not clearly defined in this court, although this court

has held a technicality should not be considered in a

case of this kind, at a time when raising it is unavoid-

ably prejudicial to the objector.

‘By thus circumscribing the remedy and withhold-

ing it from the objector, so that the plain provisions of

the statute are defeated, the court denies the railroad

its only efficient remedy for the relief sought, imposes

a different standard of pleading to the subject tax

objections than is provided by law and is acceptable

in other cases, and deprives the railroad of both equal

protection and due process under the Fourteenth

Amendment” (Petition for Rehearing, Point V, pages

23-24, R., 17). (Emphasis supplied.)

antiies

MOTION EX MERO MOTU.

With its petition for rehearing, the Railroad filed a mo-

tion that the Supreme Court consider the exercise of its

power ex mero motu to order an amendment of the subject

objections meeting its criticism. The court declined to

allow the motion.

DISSENT.

The dissenting opinion of Chief Justice Hershey of the

court, filed on the day the court ruled upon the petition for

rehearing, confirms the views of the Railroad expressed

in the petition for rehearing (Appendix B).

REASONS RELIED ON FOR ALLOWANCE

OF WRIT.

1. The Case Presents Questions of Importance to

Every Taxpayer and Taxing Authority

in the State of Illinois.

Involved is (1) the loss of an estimated $21,033,219,016

in ad valorem tax values in the State of Illinois, and (2) a

shifting of approximately $14,197,769 in ad valorem taxes

from locally assessed to state assessed property.

Government below state level in Illinois is supported

almost entirely by ad valorem taxes. It is estimated that

for 1951, tax bills totaling approximately $524,000,000 were

presented Illinois property owners.

The assessed value of the property subjected to a lien

for the payment of such bills, so taxed, divided according

to whether its 1951 assessment was at local or state level,

was as follows:*

* Ninth Annual Report of the Department of Revenue, State of

Hlinwis.

a"

Locally assessed property .............§ 523,399,391 ,884

State assessed: railroad property....... 1,084,964,000

: Capital Stock Cos....... 381,847,950

According to figures released by the Department of Reve-

nue of the State of Illinois for 1951, the $23,359,391,884

assessed value of locally assessed property shown above

represented only 52.62% of the full, fair cash value of

such property. Thus, if all such locally assessed property

had been assessed at its full, fair cash value, as required

by law, then the total assessment of such property would

have been $44,392,610,900. The failure to so assess such

property has caused a loss in tax values of approximately

$21,033,219,016.1

The failure of public officials charged with the duty to

assess and equalize local property valuations at the 100%

level of full, fair cash value at which railroads and Capital

Stock companies in Illinois were admittedly assessed, has

caused a demonstrable shift in the tax burden from locally

assessed to state assessed property.

On the basis of the above figures it is estimated that if

locally assessed property had been assessed at its full, fair

cash value of $44,392,610,900, then the effective tax rates

against all taxable property would have been reduced with,

the following (estimated) results:

* Report of the Ilinois School Problems Committee No. 3. to the

Governor of Illinois and the 69th General Assembly (Separate Ap-

pendix E, pages 38-41).

' This figure is a figure nearly equal to the all-time high of

$21,374,825,121, constituting the total assessed value of all real prop-

erty in New York City. The comparable loss alleged by the Railroad

to have occurred in Madison County in 1951 was $330,000,000

(Abst., 9).

es) ft

NE SVD MRS et ss

_— on

1. the tax bills of the 74 railroad companies"

in the state with 23,135.7 miles of track

would have been reduced from......... $22,899,250

Bs tenet sy 12,596,582

RTO GC asic aca duRecen ee cane $10,502,668

2. the tax bills of 15,414 Capital Stock com-

panies would have been reduced from. .$ 8,059,285

Ws vbvcveseoreess 4,362,918

RE ua castes pie euceeaee keene $ 3,696,365

The approximate $14,200,000 reduction of the taxes on

state assessed property would be added to the taxes to

be borne by locally assessed property and thus represent

the extent to which the tax burden has been unlawfully

shifted from local to state assessed property.

Here the objecting taxpayer seeks to maintain its re-

medial right, conferred by statute, to avoid the excessive,

discriminatory and unjust taxes levied upon its property

by reason of the acknowledged inequality in assessments.

2, The Illinois Supreme Court Has Decided Federal

Questions of Substance in a Way Not in Accord

With the Applicable Decisions of this Court.

A.

The Illinois courts effectively denied the independent

federal defenses of denial of due process and equal protec-

tion, which were well pleaded, without having considered

the merits of such defenses.

1 The number of railroad companies, their mileage in MMlinois

and number of capital stock companies assessed by the Department

of Revenue was taken from the Ninth Annual Report of the De-

partment of Revenue, State of [!inot-,

ae, pee

Without here repeating the facts stated in the objections,

as amended (Abst. 3-22, 28-40), reference may be made to

the summary contained in the court’s opinion (Separate

Appendix A) and statement herein at pages 7 and 8,

There were presented almost classical examples of a de-

nial of due process and of unequal protection. If proved,

the facts stated would have established that the Railroad

had been unlawfully taxed through gross discrimination in

the evaluation of locally assessed property and had been

denied the rights of due process and equal protection of the

Illinois Act in violation of the Fourteenth Amendment.!2

In considering the motion to strike, and for all purposes

upon questions arising from the allowance of the motion,

these facts were admitted by the motion.’2* (People v.

Keokuk and Hamilton Bridge Co., 287 Ill. 246, 248-250, 122

N. E, 467; Aldrich v. Harding, 340 Ill. 354, 359, 172 N. E.

772; Tuttle v. Bell, 377 Ill. 510, 512, 37 N. KE. [2d] 186.)

'2 Diserimination in the valuation of property of an objecting tax-

payer upon which taxes objected to are based, arising out of inten-

tional undervaluation of cther taxable property, as alleged in the

subject objections, is a denial of equal protection of the laws in vio-

lation of the Fourteenth Amendment. Hillsborough Township «.

Cromwell, 326 U. 8. 620, 623-624; Concordia Fire Insurance Co. v.

Mlinois, 292 U.S. 333, 349—a ratio 100 to 60; Cumberland Coal Co.

v. Board of Kevision, 284 U.S. 23, 28-20—a ratio 100 to 30: Green

wv. Louisville and 1. R. Co., 244 U. 8. 499, 308, where there occurred

an assessment of .75 of full valuation of complaining taxpayers’

property compared with a .52 assessment for other taxpayers—a

ratio 100 to 70.6; Sioux City Bridge Co. «. Dakota, 260 U.'S. 441,

446—a ratio 100 to 55; Raymond @. Chicago Union Traction Co.,

207 U.S. 20, 35-36, holding that the Fourteenth Amendment applies

equally to the executive and judicial divisions of state government

as to the legislature—a ratio 100 to 65. And see Chicago Railway

Co. et al. and People «. Sullivan et al., Seventh C. C. A. (1949),

173 F. 2d 282, 286-288.

"4 It is to be noted that the amended objections did not rely

upon mere undervaluation of locally assessed property. Knowledge

and intention on the part of the local assessors and Board of Review

to assess and certify such property at a debased value of 10.2 per-

cent of full value, and knowledge and intention of the Department

to certify a multiplier to equalize such debased assessments at not

epee se ne

‘ais Osis

Failure of the Illinois Supreme Court to refer to the fed-

eral defenses in its opinion did not have the effect of avoid-

ing their consideration by this court. The order and judg-

ment of the County Court were founded upon the order

allowing the Collector’s motion to strike the objections, as

amended and it was necessary for the court to pass upon

the sufficiency of the facts alleged to support such defenses

in its consideration and ruling upon the motion to strike

and in entering judgment. The judgment of the Supreme

Court of Illinois affirmed the judgment of the lower court.

It has been invariably held to be sufficient if the decision

of the state court necessarily denied the asserted federal

rights in the judgment rendered. (St. Louis, I. M. & S. RB.

Co. v. Starbird, 243 U. S. 592, 601; Chicago, B. & Q. R. Co.

v. Chicago, 16€ U. S. 226, 251). Federal questions fairly

presented by the record will be reviewed and the failure

of the state court to pass upon an asserted federal defense

is not conclusive, even though its judgment rests upon

an independent, separate ground of local or general law,

and, if the necessary effect of the judgment of the state

court is to deny the defense which, if considered and es-

tablished, would require judgment different from that of

the state court, this court will take jurisdiction and decide

the federal questions presented. (Chicago, B. & Q. R. Co.

v. Illincis ex rel. Grimwood, 200 U. S. 561, 580-581; West

Chicago Street R. Co. v. Illinois ex rel. Chicago, 201 U.S.

506, 520.)

In determining whether federal defenses were adequately

presented and by-passed, this court is not concluded by

to exceed 60 percent of full cash value, are expressly alleged. The

overvaluations are shown to have been arrived at systematically, and

the practices described have been officially acknowledged to be rep-

resentative of assessment and equalization procedure in Illinois.

(Great Northern R. Co. v7. Weeks, 297 U. S. 135, 139; Charleston

Federal Savings and Loan Association 7. Alderson, 324 U. S. 182,

190-191, Separate Appendix F..)

oft:

— |

the decision of the state court. (Ellis v. Dixon, 349 U. S.

458, 463.) Federal rights can not be defeated by the forms

of local practice. (Brown v. Western Railway of Alabama,

338 U. S. 294, 296; American Railway Express Co. v.

Levee, 2633 U.S. 19, 21; Davis v. Wechsler, 263 U.S. 22, 24.)

Whether a pleading sets up a sufficient defense grounded

upon the Constitution of the United States is necessarily a

question of federal law, and this court must determine for

itself the sufficiency of the pleadings presenting such de-

fense. (First National Bank v. Anderson, 269 U. S. 341,

346; Mitchell v. Clark, 110 U. S. 633, 645; Boyd v. Nebraska,

143 U.S. 135, 180; Covington & L. Turnp. Co. v. Sandford,

164 U. S. 578, 595.) While questions of pleading are

normally local questions, this court must construe the

amended objections to determine whether the federal ques-

tions here relied upon were presented. (Carter v. Texas,

177 U.S. 442, 447: St. Louis S. W. R. Co. v. Arkansas, 217

U.S. 136, 149.) Whether the rights and questions were

sufficiently pleaded or brought to the attention of the state

courts, and whether the determination of such questions

are iecessary for a determination of the case are federal

questions to be determined upon the record, (Grannis v.

Ordean, 254 U.S. 385, 394; Honeyman v. Hanan, 300 U. S.

14, 18.)

It is respectfully submitted that the amended objections

of the Railroad presented its federal defenses in the

County Court and in the Supreme Court in a form clearly

sufficient to require their consideration upon the merits

and that the striking of such objections denied the Railroad

its only efficient remedy and due process of law as the IIli-

nois statute had in such case provided, and that this court

should accept jurisdiction for the purpose of requiring the

reinstatement of the objections so that the same may be

heard upon the merits of the asserted federal defenses.

ma ne |

suc iion

B.

The Railroad was deprived of due process and equal

protection by the judgments of the Illinois courts after

their capricious and arbitrary rejection of all defenses.

The sole remedy provided by law in Illinois for the

escape of a taxpayer from unlawful or unjust taxation is

that of tax objection (Sees. 194, 235 of the 1939 Revenue

Act; 1951 Ill. R. S., Ch. 120, 675, 716). Section 194 provides

that any taxpayer who has paid 75 percent of the tax com-

plained of under protest and appears at the next applica-

tion for judgment for such taxes may object thereto, and

‘‘where the taxpayer appears and files objection the court

shall hear and determine the matter according to the right

of the case and enter judgment for any part of the taxes,

or order a refund of any part of the taxes so paid under

protest." Section 235 provides, in part, that ‘‘the court

shall hear and determine the matter (of tax objection) ina

summary manner, without pleadings and shall pronounce

judgment as the right of the case may be. * * * If any

party objecting to any tax paid under protest is entitled

to a refund of the amount, or any part thereof, so paid

ander protest, the court shall enter judgment accordingly.’’

(Emphasis ours.) There is no limit or condition to the de-

fense which may be offered by a taxpayer in the form of a

tax objection to the Collector’s application for judgment

for an unlawful tax which has been paid under protest."

13 No questions arise as to procedure followed upon the subject

objections in perfecting the remedy in conformity with the statute.

14 The very nature of a tax objection, pursued solely for the pur-

pose of recovering protested taxes theretofore paid, negatives the

use of this remedy for the purpose of securing a reassessment of

property, which is inhibited by Section 1 of Article IX of the Ill-

nois Constitution. There is litera’y nothing to support the language

of the Supreme Court's opinion in this case, that it might consider

only a defense of fraud or constructive fraud, if, in fact, other valid

defenses were presented by the objections. Tlowever, it should be

aed aces

The remedy of tax objection is an informal, summary

proceeding for which pleadings are not required and which

is decided at the hearing of the objection, upon the evi-

dence then before the court as the right of the case may be.

Illinois cases have uniformly held that a tax objection is

not subject to technical criticism, and that it is sufficient if

the objection contains a clear and concise statement,

couched in simple language, of sufficient ultimate facts to

show the point relied upon. (People v. Ridge Country Club,

399 Ill. 46, 57, 76 N. E. 2d 456; People v. K. & S. W. BR. R.

Co., 237 Il. 362, 367, 93 N. FE. 773; People v. C. B. & Q. R. R.

Co., 281 Tl. 500, 503, 96 N. E. 890; People ex rel. Stuckart v.

Shortall, 287 Ill. 150, 151, 122 N. FE. 60.) Ina case directly

in point upon a similar defense the Illinois Supreme Court

held a brief statement of the ultimate facts sufficed. (People

v. K. & H. Bridge Co., 287 Ill. 246, 248-250, 122 N. EK. 467.)

A defense of constructive fraud, as well as the federal de-

fenses was sufficiently alleged under the Illinois statute.

In People ex rel. v. Turk, 391 Ill. 424, 63 N. KE. 2d 513,

the Illinois Supreme Court said:

‘In the assessment of property, constructive fraud

is established in various ways. In People v. Stewart,

315 Ill. 25, we held where there is an entire absence of

proof to sustain the assessment, and the evidence! in

connection with other circumstances shows an over-

valuation which is excessive, the conclusion is re-

quired that it did not arise from error in the exercise

noted that there is little difference in the ultimate facts supporting

a defense of denial of the federal rights to due process and equal

protection and the local defense of constructive fraud (Charleston

Federal Savings and Loan Association v. Alderson, 324 U.S. 1X2.

190-191). In this case the same ultimate facts supported all de-

fenses. Proof of the facts might vary because presumptions avail-

able in one might not be relied upon in ancther defense.

M44 The evidence proving the alleged facts determined whether the

defense was established at the hearing.

-— a oe

of honest judgment, but was arbitrarily and inten-

tionally made. In People ex rel. Wangelin v. St. Louis

Bridge Co., 357 Ill. 245, it is held that in case of over-

valuation it is not necessary that intentional fraud be

shown, but that where the evidence clearly establishes

the assessment was made either in ignorance of the

value of the property, or on a judgment not based

upon readily obtainable facts, or that the property

was designedly excessively valued, such conduct on

the part of the taxing authorities amounts to a con-

structive fraud. * * * As late as the case of People v.

Wilson, 367 Ill. 494, the rule is laid down that where

the circumstances show the property to have been

grossly over-valued, and the assessed valuation is

reached under circumstances showing either lack of

knowledge of values upon the part of the assessor

making the assessment, or a deliberate and knowing

fixing of values contrary to the known value, fraud in

law will be inferred, and the court will protect the

rights of the taxpayers.’’? (Emphasis ours.) (pp. 427-

428.)

And in The People ex rel. Wangelin v. Wiggins Ferry

Co., 357 Ill. 173, 191 N. E. 296, it was said at page 179:

““* * * if the facts'** show that the taxing authorities

have assessed the property for taxation purposes at

a valuation grossly in excess of its market value, and

that such assessment was deliberately and willfully

made, such conduct amounts to a constructive fraud,

and the courts will intervene to protect the taxpayer

against the wrong undertaken to be perpetrated

against him.’’ (Emphasis ours.)

The amended objections alleged gross, intentional under-

assessment of locally assessed property. The alleged gross

14a The evidence proving the alleged facts determined whether the

defense was established at the hearing.

a

discrimination in the final assessment was founded upon an

alleged ratio of 100% of full value for the railroad’s prop-

erty to not to exceed G0% of full value for locally assessed

property, a differential of not less than 40%.1

The criticism of the objections upon which the opinion

of the Illinois Supreme Court, in considering the defense

of constructive fraud, was founded was not raised by the

motion to strike, was not considered in the trial court, was

not presented by any brief or argument in the Supreme

Court and was waived under IJinois rules of practice and

procedure and, if and when raised, was curable by

amendment. (People v. C. B. & Q. R. R. Co., 282 Ill. 206,

217, 118 N. ih. 336; C. M. & N. R. R. Co. v. People, 207 Ill.

312, 314-5, 69 N. KE. 854; People v. A. T. & S. F. RB. Co., 389

Ill, 204, 207, 58 N. KE. 2d 916; Rule 39 of the Illinois Su-

preme Court, Appendix D.)

It must be conceded that the action of the Illinois Su-

preme Court in sustaining the trial court, and the final

judgment of the trial court after striking the objections,

' The court found gross discrimination and resulting construc-

tive fraud in each of the following cases: The ratio of assessment

and percent of discrimination or overvaluation upon which the wil-

ful violation was presumed are indicated after each citation. People

v.C. W. & St. P. R. R. Co., 381 I, 58, 44 N. E. 2d 306—ratio of

50 to 35, 30%; People v. K & H Bridge Co., 287 IM. 246. 250, 122

N. E. 467—simply 40% overassessment : People v. Ill. Central R. R.

Co., 355 Ill. 605, 190 N. E. 82—ratio of 60 to 37, 37.5% ; People

v. Stewart, 313 IM. 25, 29-30, 145 N. E. 600—ratio 100 to 60, 40% ;

People v. C. BL & Q. RB. R. Co., 300 IM. 399, 133 X. KE. 467—ratio

100 to 50, 50%; People v. Union Station Co., 383 IL 153, 48 N. E.

2d 3524—ratio 8514 to 40, 46.7%: People v7. Commonwealth Edison

Co., 376 IM. 70, 73, 77, 32 N. EF. 2d “O2—ratio of (80% book value

x 37%) to (60% book value x 37%), a discrimination of 23.0%:

Peoples Gas Light and Coke Co. . Stuckart, 286 UL 164, 121 N. E.

629—ratio 100 to 30. personal property, 100 to 60, real estate, 40%

to 50%; C.& A. R. R. Co. Livingston County, 68 Ul. 458, 461—

ratio 2/3 to 1/3, 50%; ©. C. C. & St. L. Ry. Co. . People, 223 I.

17, 20, 79 N. E. 17—ratio 100 to 69, 30.1%. And in Bureau County

. ©. B. & Q. R. Co., 44 IM. 229, a leading case the ratio held dis.

criminatory and fraudulent was 100 to 66-2/3.

eee

which clearly and fully presented independent defenses of

constructive fraud and of denial of due process and equal

protection, and which complied with and met every test

provided by statute and by previous applicable Illinois and

federal decisions, were arbitrary and capricious judicial

acts, not founded upon law or the right of the case, and

effectively served to deprive the Railroad of its only eff-

cient remedy for the presentation of these defenses.

Since the rulings in question served to deprive the Rail-

road of a hearing of its objections as to all of its defenses,

and the opportunity to be heard and present evidence is

the essence of due process, it follows that the striking of

the objections in the trial court and the entry of judgment

upon the Collector’s application without a hearing of the

defenses presented by the objections, and the affirmance of

the trial court judgment by the Illinois Supreme Court

were each a denial of the due process and equal protection

guaranteed by the Fourteenth Amendment.'®

The grounds relied upon by the Illinois Supreme Court

in refusing to accept the facts pleaded for the defense of

constructive fraud were without foundation or substance

in the light of the provisions of the statute establishing

the remedy, and prior cases construing it and defining

the defense. The final decision of the state court must be

16 The fundamental requisite of due process of law is the oppor-

tunity to be heard (Grannis v. Ordean, 234 U. S. 385, 394; Louis-

ville & N. R. Co. 7. Schmidt, 177 U. S. 230, 236; Simon wv. Craft,

182 U. S. 427, 436). The due process clause of the Fourteenth

Amendment assures a hearing before the court or other tribunal

empowered to perform the judicial function involved. That includes

the right to introduce evidence and to have judicial findings based

upon it (Baltimore & Ohio R. Co. v. United States, 298 U. S.

349, 368-369). The striking of a pleading presenting a lawful de-

fense and the rendering of final judgment without a hearing upon

the evidence in the then undefende:| proceeding is a denial of due

process (Hovey 7. Elliott, 167 U. S. 407, 413-418; Windsor ¢.

Mel eigh, 93 U. S. 274, 278; McVeigh v. United States, 78 U. S.

259, 265-207 ).

J

— 0 —

regarded as a device adopted to prevent the consideration

of this defense and the asserted federal defenses upon a

hearing. This court has undoubted jurisdiction to review

this decision as to the sufficiency of the objections to pre-

sent the defenses of due process and equal protection and

also in respect to the denial of these federal rights by the

trial court in striking the objections and entering judg-

ment, and by the Supreme Court in affirming that judg-

ment (Enterprise Irrigation District v. Farmers Mutual

Canal Co., 243 U.S. 157, 164). Avoidance by the Illinois

Courts of reference to the federal questions presented by

the amended objections and the striking of the objections

Was as much against the federal rights claimed as though

they had been directly refused (Consolidated Coal Co. v.

Illinois, 185 U.S. 203, 206-7; Chicago L. Ins. Co. v, Needles.

115 U.S. 574, 579).

In affirming the trial court upon a technical pleading

point, theretofore waived, and circumscribing the remedy

of tax objection and withholding it from the Railroad, so

that the plain intent of the statute providing the remedy

was defeated, the Court imposed a different standard of

pleading than was provided by Illinois law and was ac-

cepted in other similar cases, and deprived the Railroad of

a hearing and an opportunity to present evidence, and

denied it both due process and equal protection.

IN CONCLUSION.

It is respectfully submitted that this is a case of sub-

stantial importance and questions decided by the Tllinois

Courts are not compatible with prior decisions of. this

Court and that justice requires that this petition be al-

lowed; and the petitioner, therefore, invokes the jurisdie-

tion of this court and prays that a writ of certiorari issue

| po

to review the decision of the Supreme Court of Illinois . .

this case, and further prays that, upon such review, the

judgment of said court be reversed and the cause re-

manded.

Respectfully submitted,

J. N. OGDEN,

104 St. Francis Street,

Mobile, Alabama,

LOUIS F. GILLESPIE,

HUGH J. DOBBS,

208 Reisch Building,

Springfield, Illinois,

Attorneys for Petitioner.

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1956,

GULF, MOBILE AND OHIO RAILROAD COMPANY,

Petitioner,

VS.

PEOPLE ex rel. JAMES T. CALLAHAN, County Collector

of Madison County, Illinois,

Respondent.

SEPARATE APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI CONTAINING

RELEVANT OPINIONS, REPORTS

AND ORDERS.

J. N. OGDEN,

104 St. Francis Street,

Mobile, Alabama,

LOUIS F. GILLESPIE,

HUGH J. DOBBS,

508 Reisch Building,

Springfield, Illinois,

Attorneys for Petitioner.

TESTE LOL OTT TT IES ETE TET REDDIT TEE

Sr. Louis Law Paintine Co., 415 North Highth Street. CEntral 1-4477.

INDEX TO APPENDIX.

Page

Appendix A—Opinion of the Supreme Court of Illinois

Appendix B—Dissenting opinion of the Honorable

Harry B. Hershey, chief justice...................

Appendix C—Constitutional provisions, statutes and

SE ONE 55s Powis eon ecru ee

Appendix D—Rule 39 of the Illinois Supreme Court...

Appendix K-—Extracts from official reports pertain-

ing to inequality in state and local level assess-

ments of property in Illinois, presented to the Tli-

nois Supreme Court by appellant’s brief in that

exstesnain EEE EO LE REE CLEC T R e rete

Report of joint legislative committee to investi-

yate tax problems of March 2, 1945 (prelimi-

nary to Full Valuation Acts of 1945)..........

Report of the School Problems Commission No. 3,

March, 1955 (submitted in respect to school

problem legislation at the 69th General As-

ER ast as SKE nt kr amees ew aecacditote

Appendix F—Judgment of the County Court of Madi-

Se osu a micgbatwal ane sca e ceiuicg

Appendix G—Judgment of the Illinois Supreme Court.

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