Austin v. Healy

• Decision Date: 13 June 1941
• Docket Number: No. 26071.,26071.
• Citation: 35 N.E.2d 78,376 Ill. 633
• Parties: AUSTIN et al. v. HEALY, Town Clerk, et al.
• Court: Illinois Supreme Court

376 Ill. 633

35 N.E.2d 78

AUSTIN et al.

v.HEALY, Town Clerk, et al.

No. 26071.

Supreme Court of Illinois.

June 13, 1941.

Suit by Lewman L. Austin and another against Thomas Healy, Town Clerk, and another, to enjoin defendants from issuing and disposing of road bonds on ground that debt limitation would be exceeded. From a decree permitting issuance of bonds within amount of constitutional limit, the plaintiff appeals directly to the Supreme Court.

Reversed, and cause remanded, with directions.Appeal from Circuit Court, White County; W. Joe Hill, Judge.

Pyle & McCallister, of Carmi, for appellants.

Conger & Elliott, of Carmi, for appellees.

MURPHY, Justice.

The plaintiffs, Lewman L. Austin and H. G. Erwin, resident freeholders and taxpayers in the town of Indian Creek, in White county, instituted a suit in the circuit court of that county to enjoin Thomas Healy, clerk, and Charles Reddy, highway commissioner of said town, from issuing and disposing of $16,000 of road bonds which had been voted at an election held pursuant to section 112 of the Roads and Bridges Act. Ill.Rev.Stat.1939, chap. 121, par. 120. No attack was made upon the proceedings leading to the election or the manner in which it was conducted.

It was alleged in the complaint that the total assessed valuation of all property in the town as ascertained by the last assessment preceding the election was $665,024. That there was, at that time, an outstanding bonded indebtedness of $32,000, $1,251.20 less than five per cent of the assessed valuation, the maximum limit as fixed by section 12 of article 9 of the Constitution, Smith-Hurd Stats. Plaintiffs pleaded that since the $16,000 of bonds would, if issued, exceed the constitutional limit, that, therefore, the election was void. It was also alleged defendants were threatening to presently issue the full $16,000 of bonds and that if they were not enjoined, their act would increase the town's indebtedness beyond the constitutional limit and thereby damage plaintiffs and other taxpayers.

Defendants answered admitting all matters in reference to the election, the amount of the assessed valuation and the pre-existing indebtedness. They denied the election was void or that they were going to issue bonds immediately in excess of the constitutional limit. As affirmative matter it was stated that $2,000 of the pre-existing bonded indebtedness had been paid since the election, thereby increasing the town's margin under the constitutional provision to $3,251.20, and that they proposed to issue immediately $2,000 of bonds.

Facts not admitted by the pleadings were stipulated in which it was stated the defendants did not intend to issue $16,000 of bonds at the present time but that their intention was to issue, presently, only $2,000, and that in the future whenever the pre-existing bonded indebtedness was reduced so that the amount unpaid and the bonds then to be issued would not exceed the constitutional limit, other bonds would be issued.

The decree appealed from restricted the defendants from borrowing money in excess of the town's constitutional limit of indebtedness, the same to be determined at the time of the issuance of the bonds. For clarification purposes, it was provided in the decree that the defendants could issue bonds from time to time to the amount of the constitutional limit, such limitation to be determined by the assessed valuation and pre-existing indebtedness at the time of issuance of other bonds. Plaintiffs appealed directly to this court.

The pleadings raised two questions, namely: Was the election void, made so because the amount of bonds the electorate had authorized would, when added to the pre-existing indebtedness, exceed the constitutional limit? Secondly, were the defendants threatening to violate the constitutional provision by presently issuing $16,000 of bonds?

Plaintiffs advance the theory that the action of the electorate authorizing the issuance of $16,000 of bonds fixed an indebtedness upon the town which liability, plus the pre-existing indebtedness, exceeded the constitutional limit and thereby rendered the election void. The position is untenable for it is premised upon the erroneous conclusion that the affirmative vote established an indebtedness against the town.

The language of section 12 of article 9 of the Constitution is: ‘No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness.’

The words ‘to become indebted’ as found in this provision has been before this court for construction in many cases. In City of Springfield v. Edwards, 84 Ill. 626, it was stated that in considering what construction should be given a constitutional provision or a statute, resort should be had to the natural significance of the words used and in reference to this provision it was said: ‘There is no difficulty in ascertaining the natural signification of the words employed in the clause of the constitution...