City of East St. Louis v. Gundlach

• Decision Date: 09 May 1888
• Citation: 124 Ill. 655,17 N.E. 447
• Parties: CITY OF EAST ST. LOUIS v. PEOPLE ex rel. GUNDLACH.
• Court: Illinois Supreme Court

124 Ill. 655

17 N.E. 447

CITY OF EAST ST. LOUIS

v.PEOPLE ex rel. GUNDLACH.

Supreme Court of Illinois.

May 9, 1888.

Appeal from circuit court, St. Clair county; GEORGE W. WALL, Judge.

Robert A. Halbert, Jesse M. Freels, and F. G. Cockrell, for appellant.

Franklin A. McConaughy and Sanders & Bowers, for appellee.

MAGRUDER, J.

This is a mandamus proceeding brought to compel the city of East St. Louis to levy upon the real and personal property, subject to taxation within the jurisdiction of the city, a special tax sufficient to pay a judgment recovered by the relator against said city at the September term, 1886, of the circuit court of St. Clair county, and to see that the tax so levied, when collected, be set apart and applied exclusively to the payment of such judgment, and the costs of suit. The judgment, which was for $1,074.94, was recovered upon a bond of said city for $500, and eight annual interest coupons thereto attached for $50 each, issued by said city on July 26, 1873, and payable to John B. Livingston or bearer 10 years after date. The bond and coupons were issued in pursuance of an act of the legislature of Illinois approved and in force March 26, 1869, entitled ‘An act to reduce the charter of East St. Louis, and the several acts amendatory thereto, into one act, and revise the same;’ and also in pursuance of an ordinance passed by the city council of said city entitled ‘An ordinance to fund the floating debt of the city of East St. Louis,’ approved and in force June 6, A. D. 1872. The petition for mandamus was answered by the defendant, the city of East St. Louis. The petitioner filed a general demurrer to the answer. The circuit court sustained the demurrer, and the defendant elected to stand by its answer. Thereupon judgment was entered in accordance with the prayer of the petition, and an appeal taken to this court.

The main question presented by the pleadings, and in the arguments of counsel, is whether the constitution of this state, adopted in 1870, removed from the charter of the city of East St. Louis the limitations therein contained as to the amount and rate of taxation to be imposed by the city council for the payment of bonded indebtedness incurred after the adoption of the constitution of 1870. So much of section 12 of article 9 of the constitution of 1870 as is applicable to the question involved is as follows: ‘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. Any county, city, school-district, or other municipal corporation, incurring any indebtedness as aforesaid, shall, before or at the time of doing so, provide for the collection of a direct annual tax, sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same.’ The sections of the charter bearing on the question in controversy are: First. Article 3, § 1: ‘The city council shall have power the collect an annual tax, not exceeding one per centum per annum, upon all property, real and personal, within the jurisdiction of the city, upon the assessed value thereof, in such manner as may be prescribed by ordinance, not inconsistent with the constitution of this state,’ etc. 1 Priv. Laws 1869, p. 887, Second. Section 4, Id.: ‘The city council shall have power to appropriate money and provide for the payment of the debt and expenses of the city; to borrow on the credit of the city a sum of money not exceeding one hundred thousand dollars, ($100,000;) to issue bonds, scrip, or certificates of indebtedness therefor,’ etc. Third. Article 7, § 22: ‘A registry shall be kept of all bonds, scrip, or certificates of indebtedness issued, showing a full exhibit of all material facts in relation thereto; and the city council shall levy and collect a tax not exceeding three mills on the dollar upon each annual assessment made for general purposes, for the purpose of paying the interest on such bonds, scrip, or certificates of indebtedness, and to provide a sinking fund to liquidate the same.’ 1 Priv. Laws 1869, pp. 904, 905.

The question in this case is not whether the prohibition, which forbids a municipal corporation from becoming indebted to an amount exceeding 5 per cent. of the assessed value of its taxable property, repeals or abrogates a provision in the charter limiting the indebtedness of the city to an amount less than such 5 per cent. It is not claimed that a city may incur an indebtedness greater than that to which it is limited in its charter, provided only such indebtedness does not exceed 5 per cent. of the assessed value of its taxable property. The constitutional provision that no municipal corporation shall be allowed to become indebted to an ammount exceeding 5 per cent., etc., is a limitation upon the power of the legislature to authorize cities of the state to contract indebtedness. Therefore such constitutional provision could not operate as a repeal of a clause in a city charter which prohibited the city from contracting an indebtedness in excess of an amount less than 5 per cent. It was not intended to authorize a city to become indebted to the full amount of the 5 per cent., without regard to the limitations of its charter as to the extent of its indebtedness. We have been referred to no...