Bd. of Highway Com'rs v. City of Bloomington

• Decision Date: 09 February 1912
• Citation: 97 N.E. 280,253 Ill. 164
• Parties: BOARD OF HIGHWAY COM'RS, BLOOMINGTON TP., v. CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

253 Ill. 164

97 N.E. 280

BOARD OF HIGHWAY COM'RS, BLOOMINGTON TP.,

v.CITY OF BLOOMINGTON.

Supreme Court of Illinois.

Dec. 21, 1911.

Rehearing Denied Feb. 9, 1912.

Appeal from Circuit Court, McLean County; Colostin D. Myers, Judge.

Action by the Board of Highway Commissioners of Bloomington Township against the City of Bloomington. Judgment for plaintiff, and defendant appeals. Affirmed in part.A. W. Peasley, City Atty., Fitz Henry & Martin, and Barry & Morrissey, for appellant.

Stone, Oglevee & Franklin, for appellee.

VICKERS, J.

The board of highway commissioners of the town of Bloomington, in McLean county, brought an action of assumpsit, based on the common counts, against the city of Bloomington to recover from the said city the amount of taxes collected on property in Bloomington township located within the corporate limits of the city of Bloomington, and paid over by the collectors of revenue to the city of Bloomington under the third proviso of section 16 of the road and bridge law, as amended in 1909 (Hurd's Rev. St. 1909, c. 121). The taxes in question were levied, under sections 13 and 14 of the road and bridge law, in 1909, and were collected and paid over to the city in 1910. The board of highway commissioners of Bloomington township levied the limit of 36 cents for road and bridge purposes under section 13 of the road and bridge law, and made a certificate that a contingency existed in said township requiring a greater levy than 36 cents, and obtained the consent of the board of town auditors and the assessor for an additional levy of 25 cents under section 14 of the road and bridge law, as amended in 1909, which said levies were spread upon the property of the township and collected with other taxes by the collectors. By the third proviso of section 16 of the road and bridge law, as amended in 1909, it is enacted ‘that in all cities of twenty thousand inhabitants or upwards, all of said tax required to be levied and collected under said sections 13 and 14, within the limits of such city, shall be paid over to the treasurer of such city for city purposes.’ The city of Bloomington having a population of more than 20,000 inhabitants, under said proviso, the taxes in question were paid over to the treasurer of said city. The money was received by the city in two installments; $24,670.81 being paid over May 5, 1910, and the sum of $16,316.67 being paid on August 15, 1910. The city appropriated the said funds by ordinance, and used the same for the repair and maintenance of its streets. At the December term, 1910, of this court, in the case of People v. Fox, 247 Ill. 402, 93 N. E. 302, this court held that the third proviso of said section 16 of the road and bridge law was unconstitutional and void, in that it granted a special privilege to certain cities, based upon a mere arbitrary classification. Upon the assumption that the decision of this court in the Fox Case established the right of the board of highway commissioners to the money paid over to the city under the unconstitutional proviso of section 16, said highway commissioners brought this action of assumpsit, and recovered a judgment for the amount so paid over and $1,384.93 interest. From this judgment, the city of Bloomington has prosecuted the present appeal.

[1][2] The appellant contends that this suit was improperly brought in the name of the commissioners of highways; that the suit should have been brought, either in the name of the town, under section 46 of chapter 139 of Hurd's Statutes of 1909, or in the name of the township treasurer, for the reason that the money, being public funds belonging to the township, would be payable to such treasurer. There is no force in this objection. The township is the beneficial plaintiff and real claimant of the money sued for. A recovery of a judgment and a satisfaction thereof in the present action would be a bar to any future action, either in the name of the town or any other agent thereof, for this cause of action. Aside from this, we do not find that this question was raised in any way in the lower court. Appellant has therefore waived the right to raise it here.

[3] Appellant next contends that sections 13 and 14 of the road and bridge law are unconstitutional, as applied to a situation such as exists here, for the reason that there is no provision in said sections exempting property in that portion of the township which is embraced within the limits of the city of Bloomington. In support of this contention, appellant's argument is that, the city of Bloomington being required to levy and collect taxes to maintain the streets and bridges within the city, the property of its citizens within that portion of the city embraced within the township of Bloomington cannot again be taxed by the township for the purpose of maintaining the roads and bridges of the township, and that to do so violates section 1 of article 9 of the Constitution, in that it subjects the property in one part of the city to double taxation for one and the same purpose, and that said sections of the statute violate the principles of uniformity in its application to townships having a city or village partly or wholly in such townships. The question thus raised has not been heretofore decided by this court in respect to the particular statutes here involved, but questions involving the principle which must here control have frequently been before this court. Cooley, in his work on Taxation (page 238), says: ‘Taxing districts may be as numerous as the purposes for which taxes are levied. The district for a single highway may not be the same as that for a schoolhouse located upon it. It is not essential that the political districts of the state shall be the same as the taxing districts, but special districts may be established for special purposes, wholly ignoring the political divisions. A school district may be created of territory taken from two or more townships or counties, and the benefits of a highway, a levee, or a drain may be so peculiar that justice will require the cost to be levied, either upon part of a township or county, or upon parts of several such subdivisions of the state.’

[4] The principle of uniformity is not violated by levying taxes by two overlapping municipalities on the same property, even though it be for a similar purpose. Baird v. People, 83 Ill. 387. In the case above cited, the city of Morrison brought an action to recover that portion of the taxes levied by commissioners of highways for road and bridge purposes on the property in that portion of the township which was embraced within the corporate limits of the city under section 120 of chapter 121 of the Revised Statutes of 1874, which provided that such taxes should be paid to the city. In thus discussing that question, this court, speaking by Mr. Justice Scholfield, on page 389, said: ‘It is said, why should the city expect any part of the tax with which to pay damages by reason of the opening, altering, or laying out new roads? To our minds, the answer is obvious. The city is burdened with the entire expense of laying out, improving, repairing, etc., all avenuesof travel within its limits, whether they be called streets, boulevards, avenues, alleys or roads or highways, and of constructing and repairing bridges, culverts, etc.; and it was deemed by the Legislature to be unjust to burden it also with the expense incident to the public highway system beyond its limits. But the township system frequently necessarily includes cities within the towns, which are created as subdivisions of the counties, and for which commissioners of highways are elected. In levying taxes, the commissioners of highways observe the constitutional mandate of ‘uniformity within the jurisdiction of the body imposing the same,’ and thus extend the tax alike within as beyond the city limits throughout the town; but when collected that arising from property within the city is to be used within the city, and that from property beyond its limits is to be used beyond its limits.'

The same principle was involved in the case of Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203. In that case the validity of the act authorizing the organization of sanitary districts embracing the territory of cities and other municipalities was involved. The validity of the act was challenged, on the ground that to authorize the organization of such districts with power to become indebted to the constitutional limit, and embracing other municipalities which also had a like power of contracting indebtedness, would, in effect, destroy the constitutional limitation as to municipal indebtedness. The validity of the act was sustained, and this court held that the constitutional limitation upon the extent of corporate indebtedness applies to each municipal corporation singly, and that, where one municipal corporation embraces in part the same territory as others, each may contract corporate indebtedness up to the constitutional limitation, without reference to the indebtedness of any other corporation embraced wholly or in part within its territory. The township and the city are wholly distinct municipal corporations, and are organized for different purposes,and each may exercise the taxing power for legitimate corporate purposes within its own territorial limits, without reference to the exercise of like powers by other municipalities organized for different purposes, whose territory is partly within such township.

[5] The court did not err in refusing to hold appellant's proposition of law, reciting that sections 13 and 14 of the road and bridge law were unconstitutional.

[6] Appellant next contends that there can be no recovery in this action, because there is no privity between the parties to the suit, and no basis in the evidence for the finding that the money in question was received by appellant for the use of appellee. There is no dispute about the facts. In point...