92 N.E.2d 163 (Ill. 1950), 31278, Town of Thornton v. Winterhoff

Docket Nº:31278.
Citation:92 N.E.2d 163, 406 Ill. 113
Party Name:TOWN OF THORNTON et al. v. WINTERHOFF et al.
Case Date:March 22, 1950
Court:Supreme Court of Illinois

Page 163

92 N.E.2d 163 (Ill. 1950)

406 Ill. 113




No. 31278.

Supreme Court of Illinois.

March 22, 1950.

As Modified on Denial of Rehearing May 15, 1950.

[406 Ill. 114] MacLeish, Spray, Price & Underwood, of Chicago (Robert S. Cushman and Joseph A. Dubbs, Chicago, of counsel), for appellants.

O. I. Lewis, and Burke, James & Burke, both of Chicago (Edmund W. Burke, of counsel), for appellees.

Page 164

GUNN, Justice.

This is a suit brought by three taxpayers on behalf of the town of Thornton and the board of auditors of Thornton Township, Illinois, to recover on an official bond for a breach of duty upon the part of the supervisor of Thornton Township and as ex-officio treasurer of the road and bridge fund thereof, in that it is claimed he improperly paid two anticipation warrants in the aggregate amount of approximately $6,756, drawn against the taxes of 1932, out of taxes other than for that year, and thereby a cause of action has accrued to the township and the people thereof. The cause was referred to a master who reported the testimony and recommended a decree in favor of the plaintiffs. The court sustained exceptions to the master's report and recommendations, and entered a decree dismissing the cause for want of equity.

[406 Ill. 115] A motion is made to transfer this cause to the Appellate Court on the ground that the question involved does not authorize a direct appeal to this court. Analyzed in a simple manner, the plaintiffs' claim is that tax money to the extent of $6,756 was improperly paid out, and that a taxpayer has the right to maintain a suit in equity on behalf of himself and other taxpayers against a public officer and his sureties who have improperly expended taxes collective by him. It is not claimed that an individual should recover this money, and if recovery is had it is revenue which belongs to the township and the road and bridge fund of the township.

Under a number of decisions we have held that revenue is involved when some recognized authority of the State, or of some municipality authorized by law, attempts to proceed under the law to collect tax money, and that it is also involved where suit is brought against a city treasurer to collect funds illegally withheld as commissions. It seems to us that the test considered in the cases is whether or not the recovery would belong to the public, or would belong to an individual. In the present case, if recovery of the money claimed to have been illegally expended is had, it will go into the treasury of the town of Thornton. Under similar conditions we have held that direct appeal lies to this court. People ex rel. Schreiner v. Courtney, 380 Ill. 171, 43 N.E.2d 982; People v. Holten, 259 Ill....

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