Fairfield v. People Ex Rel. Samuel H. Mccrea

• Decision Date: 30 November 1879
• Citation: 1879 WL 8686,94 Ill. 244
• Parties: EDMUND B. FAIRFIELD et al.v.THE PEOPLE ex rel. Samuel H. McCrea, Collector, etc.
• Court: Illinois Supreme Court

94 Ill. 244

1879 WL 8686 (Ill.)

EDMUND B. FAIRFIELD et al.

v.THE PEOPLE ex rel. Samuel H. McCrea, Collector, etc.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the First District.

Mr. JOHN P. WILSON, for the appellants.

Mr. FRANCIS ADAMS, Mr. GEORGE W. SMITH, and Mr. JOSEPH BONFIELD, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The city of Chicago attempted to assess, levy and collect municipal taxes for the years 1873 and 1874, under and by virtue of an act of the General Assembly entitled “An act in regard to the assessment of property and the levy and collection of taxes by incorporated cities in this State,” approved April 15, 1873, known as the “City Tax act,” (Rev. Stat. 1874, p. 254.) The validity of the taxes so attempted to be levied and collected was contested by certain of the tax-payers, and this court decided, in the case of The People v. Cooper, 83 Ill. 585, that said statute was unconstitutional, and upon that ground such tax-payers succeeded in defeating the collection of the taxes.

In 1877 the General Assembly passed an act entitled “An act in regard to the assessment, levy and collection of the taxes of incorporated cities in this State for years prior to the year 1877,” and in force July 1, 1877. Laws of 1877, p. 56.

The city of Chicago proceeded to act under the last named act, and caused the city taxes for the years 1873 and 1874 to be extended upon the State and county assessment for those years. At the July term, 1878, of the county court of Cook county, application for judgment was made against the real estate alleged to be delinquent for said city taxes, and appellants filed objections. The county court overruled the objections, and entered judgment for the taxes claimed in the application, less sixteen per cent of the taxes of 1873 and fourteen per cent of the taxes of 1874, from which judgment an appeal was taken to the Appellate Court for the First District, where the judgment of the county court was affirmed, to reverse which judgment of the Appellate Court this appeal is prosecuted.

The first section of the aforesaid act, approved May 5, 1877, is as follows:

“Section 1. That in all cases where any incorporated city in this State has attempted to assess, levy or collect taxes for any year or years prior to the year A. D. 1877, under or by virtue of the provisions of an act entitled ‘An act in regard to the assessment of property and the levy and collection of taxes by incorporated cities in this State,’ approved April 15, 1873, or under or by virtue of any unconstitutional law, or any law which has been declared unconstitutional or void by the Supreme Court of this State, and in all cases where the assessment of property for the purpose of taxation, or the tax levy made by any city for any year prior to the year 1877, has been declared void or unconstitutional, or has been set aside, and such city has failed to collect the taxes so attempted to be assessed and levied, or any part thereof, the city council or common council of such city may, by ordinance, ascertain and determine and cause to be certified to the county clerk of the county in which such city is situated, on or before the second Tuesday in August, in any year, the total amount which was required to be raised by taxation for all municipal purposes of said city, for any year or years prior to the year 1877, for or during which an assessment or levy was attempted to be made as aforesaid, the amount so certified for any year not to exceed the total amount of all appropriations made by such city for such year. Such certificate, made to the county clerk as aforesaid, shall be prima facie evidence that the amount certified does not exceed the sum total of the appropriations for the year for which such amount is certified.”

Section 2 provides for the ascertainment by the county clerk of the rate which will produce the amount certified, the extension of the tax upon the assessment for State and county purposes for the year for which such taxes are certified to have been required, the issuance of warrants to the officers charged with the collection of State and county taxes, and that the collection shall proceed in the same manner, and by the same officers, as in the case of State and county taxes.

Section 3 provides that all payments made on account of the taxes upon any such former assessment or levy, shall be deemed to have been voluntary payments, but shall be credited to the person paying the same when paid as a personal tax, and to the land in respect to which the same were made when paid as a real estate tax; and in case the payment shall equal the amount of tax extended under the present law, nothing shall be collected, and, if less, then the difference only shall be collected.

It is objected that the city taxes, for which judgment was rendered in this case, were not levied for corporate purposes of the city of Chicago, and so not warranted by the constitution of this State; it being well settled that thereunder taxes can only be levied by municipal corporations for the corporate purposes of the municipal corporation levying the tax.

The argument by which the objectors reach the conclusion that the taxes were not levied for corporate purposes, is in this wise: That the taxes were levied for the municipal expenditures of the years 1873 and 1874, and for no other purpose; that it was proved or offered to be proved that the entire expenditures of the city in 1873 and 1874 were met and paid by voluntary contributions of the citizens prior to the passage of the law of 1877, such voluntary contributions being taxes for 1873 and 1874, which were voluntarily paid; that it appeared that the bonded debt of the city of Chicago, in the year 1872, exceeded the constitutional limitation of five per cent, and has, ever since, continued in excess of said limitation, whence, it was beyond the power of the municipal authorities of Chicago to create any debt or obligation against the city during the years 1873 and 1874, which could be made the basis of subsequent taxation; that if the expenditures in 1873 and 1874 created an obligation to levy a tax in the future, they created a debt, and that could not then be done; that the corporate purposes of 1873 and 1874 had been subserved and had ceased to exist, and that a corporate purpose which has ceased to exist can not be made the basis of present taxation; that these taxes were levied in 1877; that there is no object to which the present taxes, if collected, could be lawfully applied; that taxes levied to raise a fund to lie idle in the city treasury, are not levied for a corporate purpose.

The defect in the argument is in the assumption that this was a levy of taxes in 1877, and treating the act of 1877 as though it were one authorizing original taxation, and laying out of view the character of the act as being purely remedial. The act is not one creative of any right, but it is one merely in aid of the remedy for the enforcement of a pre-existing right. It is not to authorize the imposition of taxes, but it is simply to enable cities to collect their back taxes. In the years 1873 and 1874 these taxes were needed and required for a corporate purpose,--to pay the municipal expenses of those years.

There was an appropriation ordinance for 1873 and 1874. The city council had the power, irrespective of the “city tax act,” to pass the appropriation ordinance. There was a valid assessment, made under the general Revenue law, upon which the taxes required to be raised or the amount required to be raised by taxation might have been extended. It was an assessment made under that law by the town assessors, reviewed by the town board, equalized by the county board, and equalized by the State Board of Equalization. That assessment for 1873 and 1874 stands now, and on that assessment the taxes have been extended under the operation of the act of 1877.

Levy ordinances were, in fact, passed in 1873 and 1874, from which was ascertainable the amount required to be raised by taxation in 1873 and 1874; and the amounts did not exceed the amounts named in the appropriation ordinances. But they were defective in not having been passed before the second Tuesday of August, as required by the general Revenue law, and the supplemental act of certifying to the county clerk the amount required to be raised by taxation, as required by that law, was wanting.

Had this act of certifying to the county clerk been done as required, then the collection of the taxes might have been proceeded with and effectually enforced under the general Revenue law. The power and authority to that end were ample under that law.

The irregularity was, in not proceeding to the end under that law and having the collection of the taxes made in the manner and by the same officers the State and county taxes were; but instead thereof, acting mistakenly by seeking to have the collection made by the city officers under the unconstitutional “““city tax act.”

Now, this statute of 1877 takes up the process of the collection of the taxes for 1873 and 1874 at the point where the irregularity occurred, and enables the collection to be proceeded with from that point, as it might have been, and should have been proceeded with at those times. The statute, in substance, but extends the time for the performance of an act which the common council might formerly have performed, to-wit: to certify to the county clerk the amounts which they required in those years to be raised by taxation, and giving like effect to the act, as if then done.

Under this act of 1877 the city council does nothing itself in the way of the imposition of taxes.

Its function is merely to ascertain and determine and cause to be certified what was done by the former common councils--in the language of the act, “by ordinance ascertain and determine and cause to be certified to the county clerk of the...