City of Cairo v. Campbell

• Decision Date: 25 January 1886
• Citation: 5 N.E. 114,116 Ill. 305
• Parties: CITY OF CAIRO v. CAMPBELL and others, Ex'rs.
• Court: Illinois Supreme Court

116 Ill. 305

5 N.E. 114

CITY OF CAIRO

v.CAMPBELL and others, Ex'rs.

Supreme Court of Illinois.

Filed January 25, 1886.

Appeal from appellate court.

John M. Lausden, for appellees.

Greene & Gilbert, for appellant.

SCHOLFIELD, J.

This was a petition for mandamus in the circuit court of Alexander county by Henry J. Fisher against the city of Cairo, to compel the levy and collection of a tax for the payment of two judgments recovered by him in that court against the defendant, one on the first day of July, 1878, for $390, and costs; and the other on the twentieth day of January, 1882, for $720, and costs. The circuit court rendered judgment awarding a peremptory writ as prayed, and that judgment, on appeal, was affirmed by the appellate court of the Fourth district. The record is brought to this court by appeal from the judgment of the appellate court. Fisher died pending the litigation, and his executors are now parties in his stead.

That the peremptory writ was rightfully awarded for the levy and collection of a tax for the payment of the first judgment is settled by City of Cairo v. Everett, 107 Ill. 75, which is, in all respects, analogous; and that case settles, moreover, that the contents and form of the written demand served upon the council for the payment of the last judgment are sufficient; for, except as to the description of the judgment, and the dates, they are identical. The chief question is: The ordinance containing the annual appropriation bill having been passed by the council, and approved by the mayor on the twenty-seventh of July, 1882, and this judgment not having been included in that ordinance, was it, for the purpose of this proceeding, sufficient to serve the demand on the council on the eighth of August, 1882? The contention of the attorneys for appellant is that the demand should have been served before the ordinance containing the annual appropriation bill was passed and approved; that, without demand, the council were not in default in not including the judgment in that ordinance. This, in our opinion, originates in a misapprehension in regard to the duties of the council in cases where judgment is obtained against the city, and there are no funds in its treasury from which the amount can be paid. When this judgment was rendered there was jurisdiction in the court of the parties and of the subject-matter, and the judgment, not having been reversed or set aside, is therefore absolutely conclusive in this proceeding as to the right of the plaintiff therein to receive, and the duty of the defendant therein to pay, the amount of it. City of Olney v. Harvey, 50 Ill. 453;Supervisors v. U. S., 4 Wall. 444. The city council is invested with the control of the finances and property of the city, and with power to appropriate money for the payment of its debts, and to levy and collect taxes on real and personal property for that purpose. Subdivisions 1-3, § 1, art. 5, c. 14, Rev. St. 1874. And section 2, art. 7, of the same chapter directs:

‘The city council of cities, and the board of trustees in villages, shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation; and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriation shall be made at any other time within such fiscal year unless * * *’

Inasmuch as the enforcement of the legal rights of the plaintiff in this judgment depended upon the exercise of the duty thus imposed on the council, the words ‘may appropriate’ should be read ‘shall or must appropriate,’ etc. Kane v. Footh, 70 Ill. 587;Gillinwater v. Mississippi & A. R. Co., 13 Ill. 1. It was, then, the duty of the council, without any demand, to include this judgment in the annual appropriation ...