The tax bill in this case sent by the county collector to tax-payers, notifying them of the amount of their taxes, contained this statement, amongst others, printed on the back of each tax bill:
"Remittances: Make all remittances payable to J. Ward Smith, county collector. In remitting by mail kindly return this statement, together with a duplicate attached, with your check, draft or postal order, that we may locate the property on which you wish to pay. When a check given in payment of taxes is not honored by the bank on which it is drawn, the tax receipt is null and void and the taxes remain unpaid."
This matter printed on the tax bill does not mention money. It was an invitation by the county collector to the tax-payer to pay his taxes by check, draft or postal order. By this invitation to pay by check the county collector, impliedly, at least, agreed to use all due diligence required of him by statute in the collection of any check given to him in payment of taxes. The majority opinion *Page 231 in this case finds that he was guilty of negligence in not collecting the check given by the plaintiff in error in payment of his taxes. The proof shows, without any contradiction whatever, that the plaintiff in error at the time of delivering such check to the county collector, and from that time until the bank closed, had, subject to check, more than sufficient funds in the bank on which the check was drawn with which to pay such check. The proof further shows that on receipt of such check by the county collector he entered on his official records the taxes due from the plaintiff in error as paid, and on the same occasion issued and delivered to the plaintiff in error tax receipts showing his taxes paid in full. The majority opinion is bottomed on section 154 (par. 142) of the Revenue act. The majority opinion holds that because the taxes were not paid in the medium prescribed by the statute, no payment by such check, estoppel or waiver could be pleaded against the defendant in error. Cases from foreign jurisdictions, and Cooley on Taxation, are cited, but no Illinois decisions are cited in support of the opinion.
The majority opinion is diametrically opposed to the previous decisions of this court recognized as stating the correct rule of law applicable to cases similar to the one presented by the record in the present case. We held in Johns v. McKibben,156 Ill. 71, that a tax collector might lawfully receive a check as payment, and, if so received, the transaction constituted a valid payment of taxes. People v. Lamb, 277 Ill. 584, involved the question of the validity of a tender made by means of a bank check in payment of taxes. The county collector refused to accept the check but based his refusal on the ground not that payment was tendered by check but that the amount tendered by the check was not sufficient. The opinion in that case does not disclose that the point was urged upon this court that taxes could only be paid in money under our statute. We have examined the briefs in that case. The brief for *Page 232 the People there expressly raised the question that the tender of a check was not a legal tender under section 154 of the Revenue act — that the collector could only accept money in payment of taxes — and cited in support of such contention the following purported excerpt from the case of State Treasurer v.Collector of Sangamon County, 28 Ill. 509: "The Revenue act provides that the revenue shall be collected in gold and silver coin, United States legal tender notes and current national bank notes, and in no other currency. The mandate of the State cannot be disobeyed." While the above quotation is not technically correct, yet the substance of the purported quotation is stated in that opinion. In discussing the question of the tender made by medium of the check to the county collector in the Lamb case this court said: "It is now claimed that the tender was rightfully refused, first, because it was not a legal tender; and second, because it was not made to appear that the amount of the check tendered was sufficient to pay all the taxes except the county. * * * The first reason would have been a valid one if that had been the reason of the refusal, but it was not. The treasurer invited payment by check when he sent out the tax bill, which bore the statement, printed conspicuously at the top, 'Remittance by mail must be by draft, money order or certified check payable to the order of Henry Stuckart, county collector.' In compliance with this request the appellant mailed the check, and the reason given for its refusal was not that it was not a legal tender, but was another reason which was insufficient."
The principle that the county collector may accept a check in payment of taxes and waive his right to insist on the payment of taxes in money is stare decisis in this State. (Ohnesorge v.Chicago City Railway Co. 259 Ill. 424; Geohegan v. UnionElevated Railroad Co. 266 id. 482.) Our decisions must be consistent if we are to have settled, fixed laws in this State. *Page 233
As between the county collector and the different taxing bodies the county collector is required to account for the taxes collected in the medium provided by section 154 of the Revenue act, but as between the tax-payer and the county collector the latter may, though at his peril, waive the payment by the tax-payer in money as provided by section 154. If the county collector had insisted upon the payment of the taxes in money, as provided by section 154, the tax-payer would doubtless have paid his taxes in money. However, the county collector invited payment by check, and the check given would have been paid had it been presented in due course of business. As between the collector and the tax-payer, the tax-payer should not be forced in the present case to bear the loss occasioned by the failure of the county collector to collect the check. The county collector waived the payment, as he lawfully might as between himself and the tax-payer, of the taxes in money, and by the acceptance of the check, which would have been paid had it been presented in due course, the taxes of the plaintiff in error were paid.
Under modern business conditions the great majority of financial obligations are paid by bank checks or bank drafts. To hold that a county collector dealing with the public may not accept a check or draft in payment of taxes under the authority of the McKibben and Lamb cases, supra, would be a step backwards and result in needlessly cumbersome methods of paying taxes. Of course, if the check or draft is not paid when presented in due course there would be no payment of taxes.
The county court should have sustained the objections of the plaintiff in error to the application of the county collector for judgment and order of sale.
Mr. JUSTICE STONE: I concur in the foregoing dissenting opinion. *Page 234